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 </s> Case 1 -cv-09551 Document 3 Filed 01/30/2002 Page 1 134

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI,

)

Guardian, on behalf of Eric Radaszewski, )

)

Plaintiff,

)

)

vs.

)

)

JACKIE GARNER,

)

Director, Illinois Department of

)

Public Aid,

)

)

Defendant.

)

No. 01 C 9551

MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR REMAND

Statement of Facts

This is the second time this case has reached federal court. On September 1, 2000 Donna

Radaszewski, the mother of Eric Radaszewski, filed suit in the United States District Court for

the Northern District of Illinois seeking declaratory and injunctive relief on his behalf. Eric is

presently 22 years of age and is extremely medically fragile suffering from a number of medical

conditions that resulted from his enduring brain cancer in 1992 and suffering a mid-brain stroke

in 1993. Since those medical events, Eric has required constant, round-the-clock, private duty

n1.U"sing services without which he wil11ikely die.

Until he reached the age of21 on August 5, 2000, the defendant's] agency, the Illinois

Department of Public Aid, ("IDPN') provided funding for 16 hours a day of private duty nursing'

1 The term "defendant" refers to Jackie Garner, the present Director of the Illinois Ikpmtment of Public Aid. At the time this suit was filed the Director was Ann Patla. Pursuant to Rule 25(d)(l), Ms. Gamer was automatically substituted for Ms. Patla and the term includes the actions of each.
1
J

Case 1:01-cv-09551

Document 3

Filed 01/3012002 Page 2 of 134
~

in Eric's home under the federal Medicaid program. As defendant has acknowledged, Eric would be in danger ifhe were placed in a nursing home because a nursing home's staffing could not provide the level of care that he requires. Through a combination of Medicaid assistance and
their own efforts, Eric's parents were able to provide him with the necessary medical services. In
August 2000 when Eric reached the age of21, IDPA reduced its reimbursement to the equivalent of:5ve hours a day ofprivate duty nursing. This created a medical crisis for Eric and his family.
On September 1,2000, suit was brought claiming that defendant's act of reducing Eric's private duty nursing violated specific provisions ofthe federal Medicaid statute, 42 U.S.C. §1396 ~~Jb and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Ms. Radaszewski sought a temporary restraining order which was granted on September 1,2000. From the outset, defendant's defense to this lawsuit was that this case did not belong in federal court. Defendant argued that Ms. Radaszewski possessed no private right of action under 42 U.S.C §1983 to challenge alleged violations of provisions of the Medicaid statute or the United States Constitution.
When the district court denied Ms. Radaszewski's motion for a preliminary injunction on November 16,2000, based upon defendant's section 1983 argument and the Court of Appeals for the Seventh Circuit denied her motion for an injunction pending appeal, Ms. Radaszewski brought the present suit in the Circuit Court of the Eighteenth Judicial Circuit in DuPage County, Illinois, seeking an injunction to maintain the level of private duty nursing at 16 hours a day. The DI.lPage suit was based solely on claims made under Illinois law: that defendant had violated provisions of the Illinois Administrative Procedures Act, 5 ILCS 10011 et seq., its State Medicaid Plan, Illinois Regulation 89 Ill.Adm.Code §140.35 regarding private duty nursing) and that Eric
2

Case 1 -cv-09551 Document 3 Filed 01/30/2002 Page 3 134
was the intended beneficiary of the Illinois Medicaid Plan, a contract which was breached when lOPA reduced Eric's hours of medical assistance from 16 to five hours a day. The circuit court granted Ms. Radaszewski's motion for a temporary restraining order on December 19,2000, reestablishing Eric's hours of private duty nursing to a level of 16 hours a day. That injunction is presently in effect.
On September 7, 2001, defendant filed in state court a motion to vacate the temporary restraining order and dismiss the case as moot. Defendant argued that her act of promulgating a ne"w rule abolishing private duty nursing for all persons over 21 mooted each of plaintiffs claims made under state law, In response to defendant's motion, Ms. Radaszewski filed on October 15, 2001, a Motion to Extend the Temporary Restraining Order, a Memorandum in Support of Motion to Extend Temporary Restraining Order and in Opposition to Defendant's Motion to Vaeate and Dismiss, and a Supplemental Complaint for Injunctive Relief attached hereto as Attachment A. The Supplemental Complaint repeated the four counts of the original complaint filed in December 2000 and added three new counts: a count alleging an additional violation of the Illinois Administrative Procedure Act; a count alleging violation of 42 U.S.C. §12132, Title II of The Americans with Disabilities Act and its implementing regulation, 28 CFR §35.l30 (ADA); and a count alleging a violation of Section 504 of the Rehabilitation Act of 1973,29 U.S.C. §794 and its implementing regulation, 28 CFR §41.5l(d) (Rehabilitation Act).
On November 8, 2001, defendant filed a reply memorandum in support of its pending motion to vacate and dismiss (attached hereto as Attachment B). In that memorandum defendant argued that with respect to Ms. Radaszewski's new count pertaining to the Illinois Administrative Procedure Act that the court had not yet granted plaintiff leave to file its
3

Case 1 -cv-09551 Document 3 Filed 01/30/2002 Page 4 134
Supplemental Complaint and that on the merits plaintiff's arguments regarding the state statute were not supportable. (Attachment Bat pp. 2 - 7) As to the Supplemental Complaint's counts regarding the ADA and the Rehabilitation Act, defendant in its reply argued only that leave to
file! the Supplemental Complaint had not been granted and made no arguments regarding the
merits. However, on November 14,2001, defendant filed an additional memorandum entitled, "Defendant's Objections to Plaintiffs Motion for Leave to File Supplemental Complaint and to Extend Temporary Restraining Order." (Attached as Attachment C). In that memorandum defendant argued that if leave to file the Supplemental Complaint was granted, then it objected to extending the injunction and proceeded to argue on the merits the inapplicability of the ADA and the Rehabilitation Act and the application of the Eleventh Amendment as a bar to these claims. (Attachment C, at pages 3 - 6).
On November 15,2001, the DuPage County Circuit Court granted plaintiffleave to file its supplemental complaint, extended the temporary restraining order, and found that plaintiff had a probability of success on the merits of her claims. (See Attachment D). On December 10, 2001, defendant filed her answer to plaintiff's Supplemental Complaint. (See Attachment E.) In that answer defendant alleged several affirmative defenses, including that plaintiffs count regarding the ADA was barred by the Eleventh Amendment and could not be brought against defendant Director ofIDPA. On December 14, 2001, defendant filed a Notice of Removal ofthe state court case to this Court. Ms. Radaszewski has moved on January 14,2002, pursuant to 42 U.S.C. §1447(c) that this case be remanded to the state court.
4

Case 1 -cv-09551 Document 3 Filed 01/30/2002 Page 5 134
Discussion Defendant's act of removing this case to federal court is her latest attempt to avoid any decision on the merits regarding its actions of reducing Eric Radaszewski's hours of private duty nursing from 16 to five hours a day. When this case was previously in federal court, defendant argued that there was no right of action for a federal court to consider plaintiffs federal and constitutional claims. While this issue was pending before the Seventh Circuit Court of Appeals, defendant submitted and obtained approval from the United States Department of Health and Human Services of a modification of its State Medicaid Plan which eliminated private duty nursing for persons aged 21 and over. The Seventh Circuit, therefore, never reached the merits of plaintiffs appeal and the case was dismissed as moot without prejudice. (See Attachment F). Defendant sought to moot plaintiffs claims based upon state law by purportedly following the notice and comment provisions of the Illinois Administrative Procedures Act. 5 ILCS 100/1 et seq. It is plaintiffs contention that defendant's actions to comply with statutory requirements failed as stated in Count V of her Supplemental Complaint. In addition to a new count based upon the Illinois Administrative Code, Ms. Radaszewski added two counts to her state court action under the ADA and the Rehabilitation Act. Both counts allege that defendant's attempts to eliminate private duty nursing for all adults taken while this matter was pending in state court were violations of the ADA and the Rehabilitation Act. Defendant responded to these two claims asserting the Eleventh Amendment in its Objections to extending the existing state court injunction. When defendant's motion to vacate was denied and plaintiff was permitted to file her supplemental complaint, defendant filed an answer in state court including affirmative defenses based upon the Eleventh Amendment. By her actions defendant
5

Case 1 -cv-09551

Document 3

Filed 01/30/2002 Page 6 of 134
~

submitted the merits of plaintiffs claims including defendant's affirmative defenses to the state court. Subsequently defendant removed this case to federal court. Since she has already asserted the Eleventh Amendment regarding plaintiffs federal claims and since, as argued infra, plaintiffs claims based upon state law are barred from consideration by this Court under the Eleventh Amendment, see Pennhurst v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d. 67 (1984), thiis act ofremoval is her latest attempt at avoiding the merits of Ms. Radaszewski's claim that de:fi~ndant acted unlawfully in reducing Eric's hours of private duty nursing simply because he reached the age of 21.
Defendant's attempt to remove is flawed. The actions she has taken in the state court in ddending this case constitute a bar to removaL Moreover, defendant seeks to remove to this Court daims that are not removable under 42 U.S.c. §1441. Accordingly, plaintiff respectfully requests that this Court remand this case to the DuPage County Circuit Court.
L Removal Is Improper Because Defendant Filed Her Notice of Removal After the Statutorily Required Thirty Day Period.
Defendant waited too long to remove this case to federal court. The plaintiff served on the defendant her Motion for Leave to File Supplemental Complaint and to Extend Temporary Restraining Order on October 15, 2001. She also served on defendant her Supplemental Complaint on October 15,2001, and then filed the Supplemental Complaint on October 16,2001. Defendant's Notice of Removal is dated January 14,2002. The applicable federal statute, 28 US.C.§1446(b), provides that in a case where the initial pleading is not removable, the notice of removal must be filed by the state court defendant "within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other

6

Case 1 -cv-09551 Document 3 Filed 01/30/2002 Page 7 of 134

~

~

llliJ2!e: from which it may first be ascertained that the case is one which is or has become removable ...." [emphasis added.] In the present case, it is clear that the defendant was served with a (:opy of the amended pleading and motion for leave to file the amended pleading on or about October 15,2001. The defendant's notice of removal was filed considerably later than 30 days after she received the amended pleading and motion.
Although there is a split among the courts, several decisions have determined that the 30 days period commences to run when the defendant is put on notice that a plaintiff is asserting a claim based upon federal law and the fact that the state court has not ruled on the validity of the federal claim does not toll the 30 day period. See, Webster v. Sunnyside Corp., 836 F. Supp. 629,630 (S.D. Iowa 1993)(30 day period commenced on date of filing of amended complaint not when motion to amend was granted based upon clear language of the statute); Jackson v. Brooke, 626 F. Supp. 1215, 1217 (D. Colorado 1986)(30 day period commenced on date pl.aintifffiled a response to defendant's motion for summary judgment even though court had not mled on summary jUdgment since defendants were apprized that plaintiff was pursuing a federal claim); Harriman v. Liberian Maritime Corp., 204 F. Supp. 205, 206 (D. Mass. 1962)(fiIing of Motion to Increase Damages began then 20 day period in which to file for removal even though court had not ruled on motion because defendant was put on notice of removability).
In a case strikingly similar to the present case, Butts v. Hansen, 650 F.Supp. 996 (D.Minn. 1987), the district court decided that the filing of a motion for temporary restraining order which stated plaintiffs claim for relief under federal law was sufficient notice to defendant of removability to trigger the 30 day time period under 28 U.S.C.§1446(b). In Butts the plaintiff had not even filed its complaint at the time that removal took place. The court reasoned that the
7

Case 1 -cv-09551 Document 3 Filed 01/30/2002 Page 8 134
pending state case was initiated by the temporary restraining order motion and not necessarily by the c:omplaint because otherwise defendant would have been deprived of a federal forum in the TRO proceedings. See also Bezy v. Floyd County Plan Commission, 199 F.R.D. 308 (S.D.lnd. 200 I), which ratifies the reasoning of Butts and states: "When a TRO seeks redress for federal rights, the defendant's opportunity to present or defend those rights commences with the filing of that motion."
In the present case the plaintiff filed her motion to extend temporary restraining order and supporting memorandum on October 16,2001. (See Attachment G.) In those documents plaintiff clearly set out her claims based on 42 U.S.C. §§12131-12136 (ADA claim) and Sec. 504 of the Rehabilitation Act, 29 U.S.C. §794. In fact, six pages ofthe abOVe memorandum were devoted to these two federal claims. On November 14,2001, the defendant filed objections to the plaintiffs motion to extend temporary restraining order in which she argued against the TRO, including a discussion of the merits of the federal claim. See Attachment C , pp. 4-6. Thus, the defendant was put on notice ofthe plaintiffs federal claims as early as October 16, 2001, and the defendant litigated these issues in the proceedings on the motion for extension of TRO. Judge Mehling held oral arguments on this motion on November 15,2001. At that hearing Judge Mehling decided to extend the TRO and indicated that plaintiff had a probability of succeeding on the merits of her claims, including the federal law claims. It is after losing on the motion for extension of the TRO that defendant sought removal to federal court. Prior to Judge Mehling's ruling on November 15,2001, defendant was content to litigate the federal law issues in state court. Because defendant had unequivocal notice of plaintiffs federal law claims on or around October 16,2001, and had litigated those claims in the motion for extension ofTRO, her
8

Case 1 -cv-09551 Document 3 Filed 01/30/2002 Page 9 134
notice of removal on January 14,2002, is untimely. U. Defendant's Actions Taken in State Court Bar Her From Removing This Case to Federal Court A. Defendant Filed an Answer to Plaintiffs Supplemental Complaint Recently, in Wisconsin Department a/Corrections v. Schacht, 524 U.S. 381,390, 118
S.Ct. 2047 (1998), the United States Supreme Court in a case involving the propriety of a removal, explained that in examining whether the federal court would have jurisdiction to proceed with a removed case the court must examine the status of the case and if the defendant had answered in the state proceeding before removal then the defendant lost his right to remove:
The status ofthe case as disclosed by the plaintiffs complaint is controlling in the case of removal, since the defendant must file his petition before the time for answer or forever lose his right to remove. [Citing with approval, St. Paul Mercury Indemnity Co. v. Red Cab Co. 303 U.S. 283, 58 S.Ct. 586 (1938). See also Texas Wool & Mohair Marketing Ass 'n v. Standard Acc. Ins. Co., 175 F.2d 835, 838 (5th Cit. 1949)(removal waived where third party defendant answered cross claim before seeking removal). In this case, defendant filed her answer to plaintiffs supplemental case in state court and then sought removal to this court. By so acting she lost her right to remove.
B. By Her Actions Defendant Has Submitted the Merits of Plaintiff s Claims to the State Court and Is Therefore Barred From Removing This Case.
The Seventh Circuit Court of Appeals has articulated that when questions as to propriety
o of removal arise, any doubts should be construed against removal. Roe v. 'Donohue, 38 F.3d
298,304 (7th Cit. 1994), citing Shamrock Oil & Gas Co. v. Sheets, 313 U.S. 100, 108-09,61 S. C1. 868 (1941), and Healy v. Ratta, 292 U.S. 263, 270, S4 S. Ct. 700 (1934). Courts have found that if an examination of a defendant's actions taken in a state proceeding indicate an intent to
9

Case 1:01-cv-09551 Document 3 Filed 01/30/2002 Page 10 of 134
liti.gate the case in the state court, then those actions are deemed to have waived the right to remove. See Fate v. Buckeye State Mutual Insurance Co., 2001 U.S. Dist. Lexis 20855 (N.D. Ind., December 12, 2001); Chavez v. Kincaid, 15 F. Supp.2d 1118, 1125 (D. N.M. 1998). The basis for courts finding that a defendant in a state court action waived its right to remove are affirmative defensive actions taken in the state court regarding the merits ofthe state court claims. S~:e Acqualon v. Mac Equipment Incorporated, 149 F.3d 262,264 (4th Cir. 1998). Thus, in Chavez v. Kincaid, 15 F. Supp 2d at 1125 the defendant in state court filed a motion to dismiss and commenced discovery. In Westwood v. Fronk, 2001 U.S. Dist. Lexis 18418 (N.D. WVa., November 7, 2001) defendant had responded to plaintiffs state court complaint by filing cross claims. Some courts have noted the distinction between a defendant's action in state court of maintaining the status quo versus affirmatively seeking to dispose of the matter. See Scholz v. RDV Sports, Inc., 821 F. Supp 1469, 1470 (M.D. Fla. 1993).
The actions taken by the defendant in this case indicate her initial choice to litigate this case in the Du Page County Circuit Court and not merely maintain the status quo. When Ms. Radaszewski filed a Supplemental Complaint rasing new claims, defendant did not remove but continued to seek dismissal of the case and the vacating of the existing injunction, arguing the merits ofplaintiffs new claims and asserting the Eleventh Amendment as a bar to plaintiffs £~deral claims in state court. (See Attachment C). Previously, defendant had submitted eight pages of detailed arguments regarding plaintiff s Count V of the Supplemental Complaint alleging further violations of the Illinois APA. Then, when the court permitted plaintiff to file her Supplemental Complaint and continued the injunction, defendant, rather than seeking removal to this Court, filed her answer raising as affirmative defenses the applicability of the Eleventh
10

Case 1:01-cv-09551 Document 3 Filed 01/30/2002 Page 11 of 134
Amendment to plaintiffs ADA claim. Affinnative defenses are not dissimilar to motions to dismiss and defendants actions indicate her initial intent to litigate the merits of Ms. Radaszewski's federal claims in state court.
C. Wisconsin Department ofCorrections v. Schacht Does Not Require Removal. The U.S. Supreme Court's decision in Wisconsin Department ofCorrections v. Schacht, 524 U.S. 381,118 S.Ct. 2047, 141 L.Ed.2d 364 (1998), does not provide support for the position that defendant may remove this case to federal court and then assert Eleventh Amendment immunity as a defense. In Schacht, the Court held that a State defendant's removal of a suit· involving federal claims, some of which may be barred by the Eleventh Amendment, does not destroy removal jurisdiction that would otherwise exist. Schacht, 524 U.S. at 386. The court concluded that the Eleventh Amendment does not automatically destroy jurisdiction, "rather, the Eleventh Amendment grants the State a legal power to assert a sovereign immunity defense should it choose to do so. The State can waive the defense. " ld. Key to the Court's decision was that the State could possibly waive the immunity defense and that the State had not done so at the time ofthe removal. Neither of these factors applies in the present case. First, to waive sovereign immunity, state officials must have specific authority under a state statute, constitutional provision, or decision. Ford Motor Co. v. Department of Treasury, 323 U.S. 459,467 (1945). The Seventh Circuit has held that the Attorney General of Illinois is not authorized under Illinois law to waive Illinois' Eleventh Amendment immunity in
the course of litigation. In re Estate ofPorter v. James, F.3d 684,691 (1994), citing People v.
Patrick J Gorman Consultants, Inc., 111 Ill.App.3d 729, 444 N.E.2d 776, 778 (1 st Dist.1982). And more recently, in Power v. Summers, 226 FJd 815,819 (2000) the Seventh Circuit clarified
11

Case 1:01-cv-09551 Document 3 Filed /30/2002 Page 12 of 134
that a state agency defendant cannot remove to federal court "and thus consent to suit in the federal court" in the absence of a statutory waiver of sovereign immunity.
Secondly, prior to the removal, defendant already asserted Eleventh Amendment defenses to plaintiff's federal claims. In her Answer to the Supplemental Complaint she stated as her defenses to the ADA claim, Count VI, that the Eleventh Amendment bars consideration of this claim. See Defendant's Answer to Supplemental Complaint for Injunctive Relief, Second and Third Defenses, attached to this Memorandum as Attachment E. She also stated Eleventh Amendment defenses against both plaintifrs federal claims in her state court filing objecting to extension of the court's temporary restraining order. See "Objections to Plaintiffs Motion for Leave to File Supplemental Complaint and to Extend Temporary Restraining Order", Attachment C, p.5. 2
This assertion of the Eleventh Amendment bar before the removal is a key distinguishing factor between this case and Schacht. The Schacht Court looked at the case at the time of the removal and found that "Here...at the time of the removal, this case fell within the 'original jurisdiction' of the federal courts. The State's later invocation [meaning, after removal] of the El<~venth Amendment placed the particular claim beyond the power of the federal courts to decide, but it did not destroy removal jurisdiction over the entire case." Schacht, 524 U.S. at 374.
2 Although under Pennhurst, private plaintiffs may not sue a state official for claims arising under state law for any type of relief, the Supreme Court's doctrine stated in Ex parte Young, 209 U.S. 123 (1908) has long authorized private plaintiffs to sue state officials in their official capacities in order to enjoin prospectively violations of federal laws. Otherwise under the Eleventh Amendment's prohibitions, plaintiffs may not sue states for violations of federal statutes unless Congress has validly abrogated Eleventh Amendment immunity or the state has consented to suit. College Savings Bank v. Florida Prepaid Post-secondary Education Expense Bel, 527 U.S. 666 (1999).
12

Case 1:01-cv-09551 Document 3 Filed 01/30/2002 Page 13 of 134
In the present case the defendant had already invoked the Eleventh Amendment defense at the time ofthe removal; therefore, removal was inappropriate.
III. This Action Is Not Removable Because a Federal Court May Not Decide State Court Claims Against State Officials
]n addition to the waiver arguments described above, this Court may not hear claims against the defendant based on the five state law causes of action contained in plaintiffs Supplemental Complaint, due to the Eleventh Amendment's bar prohibiting federal courts from affording any type of relief against state officials based on violations of state law.
The Supreme Court made clear in Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984), that the Eleventh Amendment prohibits federal courts from affording private plaintiffs any relief, even prospective injunctive relief, against state officials like defendant for violations of state law. The Pennhurst plaintiffs sued various state and county officials for violations of both federal and state law. After lengthy litigation in the trial and appellate courts, the case returned to the Supreme Court for the second time after the Third Circuit affirmed injunctive relief against the state officials based on a pendant state law claim alone. The Supreme Court reversed the injunction, concluding that there could be no greater intrusion on state sovereignty than "when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment." Pennhurst, 465 U.S. at 106.
As described above, Counts I through V of the Supplemental Complaint state claims against the defendant Director of Public Aid for violations of state law. Accordingly, under Pennizurst, this Court cannot afford plaintiff relief on any ofthese claims. See also Powers v.
13

Case 1:01-cv-09551 Document 3 Filed 01/30/2002 Page 14 of 134

Summer, 226 F.3d 815 (7th Cir. 2000)(enforcement of a state law against a state official by a federal court is not permitted under the Eleventh Amendment).

Conclusion For all the foregoing reasons plaintiff respectfully requests that this Court remand this cause to the Circuit Court of the Eighteenth Judicial Circuit for full disposition of all of plaintiffs claims in her Supplemental Complaint.

Respectfully submitted,

c;};;t.~~

Eliot Abarbanel" "

----

One of Plaintiffs Attorneys

PRAIRIE STATE LEGAL SERVICES, INC. Eliot Abarbanel Sarah Megan Bernard H. Shapiro 350 S. Schmale Road, #150 Carol Stream, IL 60188 630-690-2130

14

Case 1:01-cv-09551 Document 3
A

Filed 01/30/2002

Page 15 of 134

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Case 1:01-cv-09551 Document 3 Filed 01/30/2002 Page 16 of 134

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI,

)

Guardian, on behalf of EriC Radaszewski, )

)

Plaintiff,

)

)

vs.

)

)

JACKIE GARNER,

)

oi.rector, Illinois Department of

)

Public Aid.

)

)

Defendant.

)

No. 01 C 9551 1udge John W. Darrah

ATTACHMENTS TO ME1\10RANDUM IN SUPPORT OF PLAINTIFF'S MOTION FOR REMAND

PRAIRIE STATE LEGAL SERVICES, INC.
Eliot Abarbanel Sarah Megan fkrnard H. Shapiro 350 S. Schmale Road, #150
Carol Stream, IL 60188
630-690-2130

Case 1:01-cv-09551 Document 3 Filed 01/30/2002 Page 17 of 134
"

[N THE CIRCUIT COURT OF THE ElGHTEENTH JUDICIAL CIRCUIT DUPAGE COUNTY, ILLINOIS

DONNA RADASZEWSKI, Guardian for Eric Radaszewski, on his behalf,
Plaintiff,
VS.
JACKIE GARNER, Director, Illinois Department of Public Aid,
Defendant.

) ) ) ) ) ) No. 00 CH 1475 ) ) )
) )

1 - _ . _ . _~ -li ......_. ~ ~

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SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE RELIEF Plaintiff Donna Radaszewski, on behalf of her son and ward, Eric Radaszewki, states her Complaint against defendant Ann Patla, Director of the Illinois Department of Public Aid, as follows: j20UNT I: VIOLAnON OF THE ILLINOIS ADMINISTRATIVE PROCEDURE ACT
5 ILCS 10011 et seq. (As Original) 1 Plaintiff Donna Radaszewski is the guardian for her disabled adult son, Eric Radaszewski. She brings this action in her capacity as Eric's guardian on his behalf. 2. Plaintiff and Eric reside in DuPage County, Illinois. 3. Defendant Ann Patla is the Director of the Illinois Department of Public Aid (IDPA). 4. IDPA is the state agency charged with the administration of the Medicaid program in Illinois 5. Eric, born August 5, 1973, is 21 years old. 6. Eric is disabled and receives disability benefits under the federal Supplemental

EXHIBIT

j

A

D.

~ Pg. 1 of 15

Case 1:01-cv-09551 Document 3 Filed 01/30/2002 Page 18 of 134

Security Income program. He is eligible for Medicaid. 7. On February II, 1992, Eric was diagnosed with medulloblastoma, a brain cancer. 8. On December 24, ! 993, Eric suffered a mid-brain stroke after he had undergone
surgery, radiation and chemotherapy as treatment for the cancer. 9. The disease, stroke and the subsequent treatment have left Eric with a very low level
of body and mental functioning. He is highly medically fragile. 10. It is the opinion of Eric's physician that Eric requires private duty nursing services of
a registered nurse, one-on-one, 24 hours per day in order to survive. 11. For the past five years, Eric received private duty nursing care at home by registered
nurses 16 hours per day, with 336 additional hours per year of services from registered nurses to provide Eric's parents respite. The balance of his 24 hour per day care came from his parents, who were specially trained to provide the necessary services to avoid medical crisis for Eric.
12 This care was paid for by Medicaid. 13. The Medicaid program is a joint federal and state funded program enacted to provide necessary medical assistance to needy disabled persons and families with dependant children,
whose income and resources are insufficient to meet the cost of care. 42 U.S.C. §1396,305 ILCS 5/5-1,
14. Each State participating in the Medicaid program must submit a Medicaid plan to the Secretary of Health and Human Services (HHS) for approval. 42 U·,S.C. §1396.
15. The plan must specify the amount, duration, and scope of each service that the state provides in its Medicaid program. 42 U.S.C. §§1396a(lO), U.S.C. §1396d(a), 42 eFR §440.230(a).

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16. Private duty nursing is a service that states may chose to include in their Medicaid plans. 42 U.S.c. § I 396d(a)(8), 42 U.S.C. §1396a(a)(IO)(C), 42 CFR §§440.22S, 440.80.
17. Federal regulations define "private duty nursing" as nursing services provided to persons who require more individual and continuous care than is available from a visiting nurse or than is routinely provided by the nursing staff of a hospital or nursing facility. 42 eFR §440.80. Under the regulation, the state has the option to provide private duty nursing services in the recipient's home, at a hospital or at a skilled nursing facility. 42 eFR §440.80(c).
18. In addition to providing the Medicaid coverage described in their Medicaid plans, States have the option of requesting approval from HHS to provide home and community based care services for persons who would otherwise require institutional care that would be paid for by Medicaid. These services are provided under a range of Medicaid waiver programs that are authorized under 42 U.S.C §§ 1396a(a)(IO)(A)(ii)(VI), 1396n(b)-(e). Under this waiver authority, the Secretary of HHS may grant waivers of certain otherwise applicable Medicaid requirements, including for example financial eligibility requirements and service limitations. Id.
19. Illinois has submitted to HHS and obtained federal approval of its Medicaid plan. 20. The Illinois Medicaid plan includes broad coverage for private duty nursing, with the sole conditions that the private duty nursing is recommended by a physician, that prior approval from the State agency is sought, and that the nursing care not be provided by a relative. The plan includes no limitations as to cost or as to where these services must be provided. The sections of the Illinois Medicaid Plan relating to private duty nursing services, Exhibit A, are attached to and made a part of this Complaint. 21. nlinois also has expanded its Medicaid program by including several home and

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community based care Medicaid waiver programs approved by the Secretary of HHS. 22. Under the Home Services waiver program ("HSP"), Illinois provides services that
are not otherwise covered under the Medicaid program, including personal care and homemaker services, to enable disabled adults to remain in their home. The cost of services which may be provi.ded to recipients under this waiver program is limited, however, to the average Medicaid cost of care for persons in skilled nursing facilities.
24. Despite the language of the Illinois Medicaid plan covering private duty nursing with only the limitations described in paragraph 20, above, it is Defendant's unwritten policy to impose additional restrictions that eliminate private duty nursing for persons aged 21 or older and instead provide such services only through the HSP, its limited home and community based Medicaid waiver program.
25. As Eric's 21 SI birthday approached, state officials advised Eric's mother to contact the Office of Rehabilitation Services ("DRS") to apply for the HSP as the sole avenue to obtain continued private duty nursing services for Eric.
26. On February 18,2000, DRS issued a decision limiting Eric's eligibility for HSP services to a "service cost maximum" of $4,593 per month.
27. This service cost maximum amount reduced funding for Eric's private duty nursing services to the equivalent of five hours per day.
28. Plaintiff filed an administrative appeal on the DRS deciSIon limiting Eric's services under the HSP to $4,593 per month, and an administrative hearing was held on July 25, 2000.
29. At this hearing, Eric's treating physician, Janina Badowska, M.. D. testified that it
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in her medical opinion, Eric requires 24 hour one~on~one skilled nursing care from registered nurses and that the level of care offered by the DRS service cost maximum would leave Eric at great medical risk. She further testified that Eric's needs could not be met by staffing levels at a skilled nursing facility.
30. On August 18, 2000, Defendant Ann Patla, as Director of IDPA, issued an administrative decision, affinning the ORS decision limiting funding of Eric's services under the Home Services Program to $4,593 per month, despite a finding of fact in the decision that placing Eric in a nursing facility would place Eric at risk of danger.
31. Under the Illinois Administrative Procedure Act, 5 ILCS 10011 -70, each agency statement of general applicability that implements, applies, interprets, or prescribes law or policy is a '"rule" within the meaning of the Act.
32. Defendant's unwritten policy limiting Medicaid coverage for private duty nursing services for adults to the services provided under the HSP waiver program is a rule of general applicability within the meaning of 5 ILCS 10011-70.
33. Under 5 ILCS 1001540, state agencies must adopt rules pursuant to the notice and comment rulemaking procedure specified in the provision.
34. Because Defendant has not followed the notice and comment rule-making procedure set out in 5 ILCS 10015-40 for the unwritten policy limiting Medicaid coverage for private duty nursing services for adults to the services provided under the HSP waiver program, the policy is invalid under the Illinois Administrative Procedure Act.
35. Eric will suffer irreparable injury if Defendant is not enjoined from applying this invalid rule to deny Eric the full amount and scope of private duty nursing services described in

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(".,

the Illinois Medicaid plan. 36. Eric has no adequate remedy at law. 37. Eric is indigent and unable to post bond. WHEREFORE, plaintiff respectfully prays for the following relief: A. That this Court enter, without a requirement of a bond, a temporary restraining order, preliminary injunction and permanent injunction enjoining Defendant from applying the invalid limitation on the amount and scope of private duty nursing services available under the Illinois Medicaid plan. B. Such other and further relief as the Court deems equitable and just.
COUNT II: VIOLATION OF THE MEDICAID PLAN (As Original) 1. - 30. Plaintiff re-alleges paragraphs one through thirty of Count I as paragraphs one through thirty of Count II.
31. The Illinois Public Aid Code directs lOPA to establish standards and rules to detennine the amount and nature of medical services to be included in the Medicaid program, including private duty nursing services. 305 ILCS 5/5-4,5-5.
32. The Illinois Medicaid plan sets out such standards and rules. 33. Defendant has violated the Illinois Medicaid plan by failing to provide Eric the full, amount, duration and scope of private duty nursing services set out in the Illinois Medicaid plan. 34. Eric will suffer irreparable injury if Defendant is not enjoined from failing to afford Eric the full amount and scope of private duty nursing services described in the Illinois Medicaid plan. 35. Eric has no adequate remedy at law.

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36. Eric is indigent and unable to post bond. WHEREFORE, plaintiff respectfully prays for the following relief: A. That this Court enter, without a requirement of a bond, a temporary restraining
order, preliminary injunction and permanent injunction enjoining Defendant from failing to afford Eric the full amount, duration and scope of private duty nursing services covered in the Illinois Medicaid plan. B. Such other and further relief as this Court deems equitable and just. COUNT III: VIOLATION OF 89 ILL.ADM CODE §140.435 (As Original) 1. - 30. Plaintiff re-alleges paragraphs one through thirty of Count I as paragraphs one through thirty of Count III. 31. The Illinois Public Aid Code directs IDPA to establish standards and rules to determine the amount and nature of medical services to be included in the Medicaid program,
including private duty nursing services. 305 ILCS 515-4,5-5.
32. The Department's rule at 89 IlLAdm.Code §140.435(b)(2),provides that Medicaid payment "shall be made" for private duty nursing services.
33. Defendant's refusal to cover medically necessary private duty nursing services for
Eric violates 89 Ill.Adm.Code §140.435(b)(2).
34. Eric has no adequate remedy at law. 35. Eric is indigent and unable to post bond. WHEREFORE, plaintiff respectfully prays for the following relief: A. That this Court enter, without a requirement of a bond, a temporary restraining
order, preliminary injunction and permanent injunction enjoining Defendant from
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failing to provide payment for Eric's medically necessary private duty nursing servlces. B. Such other and further relief as this Court deems equitable and just.
COUNT IV: BREACH OF CONTRACT (As Original) 1. - 30. Plaintiff re-alleges paragraphs one through thirty of Count [ as paragraphs one through thirty of Count [V. 31. The Illinois Medicaid plan is a contract between the Illinois Department of Public Aid and the federal government. 32. Medicaid recipients, including Eric, are the clearly intended artd direct beneficiaries of this contract. 33. By failing to afford Eric the full amount, duration, and scope of private duty nursing included in the Illinois Medicaid Plan. defendant is in breach of contract. 34. Defendant's decision to restrict Eric's nursing services to the cost maximum of the Home Services Program thereby denying him the benefit of the private duty nursing services desclibed in the Illinois Medicaid plan has injured Eric. 35. Eric has no adequate remedy at law and requires specific performance of the terms of the Medicaid plan in order to obtain relief.
WHEREFORE, plaintiff respectfully prays for the following relief: A. That this Court enter, without the requirement of a bond, a temporary restraining
order and preliminary injunction enjoining Defendant from failing to afford Eric the full amount, duration and scope of private duty nursing services covered in the Illinois Medicaid plan.

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B. That this Court award plaintiff specific performance of the lttinois Medicaid plan provisions and afford Eric the full amount, duration of scope of private duty nursing services covered in the Plan.
C. Such other and further relief as this Court deems equitable and just. COUNT V: VIOLATION OF THE ILLINOIS ADMINISTRA TlVE PROCEDURE ACT
I. - 24. Plaintiff realleges paragraphs one and two, four, six through eighteen, twenty-one and twenty-two, and twenty five through thirty of Count I as paragraphs one through twenty-four of Count V.
25. In March 2001 Jackie Gamer replaced defendant Ann Patla as Director of the Illinois Department of Public Aid and endorses all of the actions taken by Ms. Patl~ relevantto this lawsuit.
26. Eric Radaszewski was born on August 5, 1979. 27. In August, 2000, when Eric turned 21 years old, Illinois' Medicaid plan, as submitted to HHS, included coverage for private duty nursing, with the sale conditions that private duty nursing services be recommended by a physician, that prior approval from the State agency be sought, and that the nursing care not be provided by a relative. A copy of that provision as it e:xisted at that time is attached to this Complaint as Exhibit A. 28. Despite the language of the Illinois State plan covering private duty nursing with the sale limitations described in paragraph 28, above, it was the unwritten policy of the State to impose additional restrictions that eliminate private duty nursing for persons aged 2 I or older and instead provide such services only tluough the HSP, its limited home and community based Medicaid waiver program.
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29. On September 1,2000. plaintiff brought an action in the United States District Court for the Northern District of Illinois against Defendant Palla, seeking to enjoin defendant's reduction of Eric's nursing services. Plaintiff claimed that defendant's actions, deviating from its ~\lIedicaid plan, violated the federal Medicaid statute, its implementing regulations and the requirements of due process.
30. The District Court denied plaintiffs motion for a preliminary injunction, and plaintiff appealed that interlocutory order.
31. On December 1, 2000, plaintiff filed the present case, bringing claims founded on
state law that could not be included in the federal law suit. Plaintiffs claims, set out as Counts l-
IV, included that defendant's unwritten policy to deny Eric private duty nursing violated the notice and. comme. nt requirements of the minois Administrative .Procedure Act, 5 ILCS 10011 et seq.• the requirements set out in its Medicaid plan, and 89 IlLAdm.Code 140.435(b). and deprived Eric of his rights as a third party beneficiary of the contract between the Department and the federal government.
32. On December 19, 2001, this Court entered an Order denying Defendant's Motion to Dismiss and issued a Temporary Restraining Order enjoining Defendant from reducing Eric's nursing services pending further.order.
33. On January 3, 2000, without prior notice to either this Court or to the Seventh Circuit Court of Appeals, the plaintiff or the public, the Department submitted to HHS an amendment to the Illinois Medicaid plan, deleting coverage for private duty nursing services for adults. On
February 2,2001, HHS approved the amendment.
34. On March 16, 2001. lDPA published in the Illinois Register a proposed rule to

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amend 89 UI.Adm.Code §140.435 and § 140.436 to delete Medicaid coverage for private duty

nursing services. The "Complete Description of the Subjects and Issues Involved" section of the

notice of rulemaking stated that the changes "are being made as clarifications...."

35. On May 23, 2001, pursuant to public request, the Department conducted a hearing on

the proposed rules.

36. On July 23, 200 I, the Department submitted to the Joint Committee on

Administrative Rules ("leAR") its Second Notice of Proposed Rulemaking for the proposed

amendment.
37. In the section of the Second Notice describing the public comments objecting to the

deletion of Medicaid coverage for private duty nursing services for adults, the Department

claimed that "the comments received were not related to the rules, or their intended purpose or

_~

potential effect" and that the "proposed amendments do not change the Department's policy on

Govt:rage for home health services for adults." Exhibit B, Second Notice of Proposed

Rulemaking, page 8.

38. On August 7, 2001, JCAR reviewed the rules without objection.

39. On September 1,2001, the Department filed a certified copy of the amended rules

with the office of the Secretary of State.

40. Under the lllinois Administrative Procedure Act, 5 ILCS 100/1-70 each agency

statement of general applicability that implements, applies, interprets, or prescribes law or policy

is a rule within the meaning of the Act.

41. Under 5 ILCS 10015-40, state agencies must adopt rules pursuant to the notice and

comment rule making procedure specified in the provision. Among these requirements, an

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agency must include in the first notice of rule making a "complete description of the subjects and issues involved." 5 [LCS IOO/5-40(b)(3). During the notice period, the agency must accept from interested persons data, views, arguments or comments and it must "consider all submissions received." 5 ILCS 1OO/5-40(b).
42. In promulgating the amendments to 89 IlLAdm.Code §140.435 and §140.436, defendant has not followed the letter or the spirit of the requirements set out in 5 lLCS 100/540(b). The Department refused to consider the comments of the public on the decision to delete Medicaid coverage for private duty nursing services, having deemed the conunents not pertinent to the purpose of the rule making. The Department's Notice of Proposed Rule Making did not include a complete description of the subjects and issues involved, failing to disclose that it was implementing a policy to delete Medicaid coverage for private duty nursing services for adults or the reasons for not covering those services.
43. Eric will suffer irreparable injury if Defendant is not enjoined from applying its invalid rules to deny Eric the full amount and scope of private duty nursing services he has been receiving under the former Illinois Medicaid plan.
44. Eric has no adequate remedy at law. 45. Eric is indigent and unable to post bond. WHEREFORE, plaintiff respectfully prays for the following relief: A. That this Court enter, without a requirement of a bond, a temporary restraining
order, preliminary injunction and permanent injunction enjoining Defendant from reducing Eric's nursing services pursuant to the invalid amendment to 89 Ul.Adm.Code §140.435 or §140.436.

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B. Such other and further relief as the Court deems equitable and just. COUNT VI: VIOLAnON OF THE AMERICANS WITH
DISABILITlES ACT: 42 USC §12132 and 28 CFR §3S. [30. 1. - 39. Plaintiffre-alleges paragraphs one through thirty-nine of Count Vas paragraphs one through thirty-nine of Count VI. . 40. Under the Department's policy, Eric may receive Medicaid payment for necessary long term care services in institutions, meaning skilled nursing facilities and hospitals, but not at home. 41. In-home nursing care is the most integrated setting for services for Eric, and is at least as cost-effective as treatment he would receive in an institution. 42. Under Title II of the Americans with Disabilities Act, 42 USC §12132 and its hnplementing regulations at 28 CFR §3S.130, public entities must provide services to persons
C) "vith disabilities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 43. Eric is a qualified individual with a disability within the meaning of Title II of the lillA. 44. The lllinois Department of Public Aid of which defendant Patla is Director is a public entity" within the meaning of Title II of the ADA. 45. The Department's failure to provide Eric Medicaid services for Eric in his home, the most integrated setting for receipt of those services, violates the community integration requirements of Title II of the American with Disabilities Act, 42 USC §12132 and its implementing regulation 28 CFR §3S.130.

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46. Eric will suffer irreparable injury if Defendant is not enjoined from reducing his Medicaid covered nursing services at home forcing him into an institution where his health will be in imminent danger and he will be segregated from his family and the larger community.
47. Eric has no adequate remedy at law. 48. Eric is indigent and unable to post bond. WHEREFORE, plaintiff respectfully prays for the following relief: A. That this Court enter> without a requirement of a bond, a temporary restraining
order, preliminary injunction and permanent injunction enjoining Defendant from failing to afford Eric continued nursing services at home rather than in an institution.
B. Such other and further relief as this Court deems equitable and just.
COUNT VII: VIOLATION OF SECTION 504 OF
REHABILlTATION ACT OF 1973: 29 USC §794 and 28 CFR 41.S1(d) I. - 41, Plaintiff re-alleges paragraphs one through forty-one of Count V[ as paragraphs one through forty-one of Count VII. 42. Section 504 of the Rehabilitation Act of 1973 ("Section 504") prohibits discrimination against people with disabilities on the basis of their disabilities in programs and services that receive federal financial assistance, 29 USC §794. 43. Section 504 requires that services must be provided in the most integrated setting appropriate to the needs of individuals with disabilities. 28 CFR §41.51 (d). 44. The Department's failure to provide Medicaid services for Eric in his home, the most integrated setting for receipt of those services, even though it will provide Medicaid services in institutions for Eric, violates Section 504.
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45. Eric will suffer irreparable injury if Defendant is not enjoined from reducing his Medicaid covered nursing services he currently receives at home, forcing him into an institution where his health will be in imminent danger, and he will be segregated from his family and the larger community_
46. Eric has no adequate remedy at law. 47. Eric is indigent and unable to post bond. WHEREFORE, plaintiff respectfully prays for the following relief:
A. That this Court enter, without a requirement of a bond, a temporary restraining
order, preliminary injunction and permanent injunction enjoining Defendant from failing to afford Eric continued nursing services at home rather than in an institution. B. Such other and further relief as this Court deems equitable and just.

Eliot Abarbanel One of the Attorneys for Plaintiff
PRAIRIE STATE LEGAL SERVICES, INC. Eliot Abarbanel Sarah Megan Bernard Shapiro Attorney No_ 67545
3.50 S_ Schmale Road
Suite 150 Carol Stream, IL 60188
S30-690-2130

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IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT DUPAGE COUNTY, ILLINOIS

DONl'lA RADASZEWSKI, Guardian, on behalf )

of Eric Radaszewski,

)

)

Plaintiff,

)

)

vs.

)

)

JACKJE GARNER, Director of Illinois

)

Department of Public Aid,

)

)

Defendant.

)

No. 00 CH 1475 Judge Mehling

DEFENDANT'S REPLY IN SUPPORT OF MOTION TO VACATE TEMPORARY RESTRAINING ORDER AND DISMIS? CASE AS MOOT

Defendant, Jackie Garner, the Director of the Illinois Department of Public Aid, by and

through her attorney, James E. Ryan, Attorney General for the State ofIllinois, hereby submits this

reply memorandum in support ofher motion to vacate the temporary restraining order and dismiss

this case as moot, stating as follows:

On December 19,2000, Judge Byrne denied the Defendant's previous attempt to dismiss this

case as moot because, at the time of the Court's order, (1) the federal Health Care Financing

Administration ("HCFA") had not approved a State Medicaid Plain Amendment, and (2) the

Defendant had not properly adopted a new rule pursuant to the Administrative Procedure Act

(tlAPA") to effectuate the policy change. (Mem. Op. And Ord. p. 2, Defs Ex.l E). Also on

December 19,2000, Judge Byrne granted the Plaintiffs motion for Temporary Restraining Order

("TRO") and specifically stated that because the Illinois Department of Public Aid (nIDPATl) failed

1 "Defs Ex." indicates reference to the previously-filed, separate volume of exhibits
entitled "Exhibits to Defendant's Memorandum in Support of Motion to Vacate Temporary
Restraining Order and Dismiss Case as Moot."
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to lIproperly promulgate its new rule ... in accordance with the APA," the Plaintiff seemed likely to succeed on the merits. (Mem. Op. And Ord. p. 6, Defs Ex. E).

Subsequent to the entry of the TRO on December 19,2000, (1) HCFA has approved a State Medicaid Plan Amendment removing private-duty nursing from the State Medicaid Plan, (See Defs Ex. G), and (2) the IDPA has properly promulgated an amendment to 89 IlL Admin. Code § 140.435, in accordance with the APA, that strikes all text relating to Medicaid coverage for private-duty nursing services and makes clear that private payment for private-duty nursing is provided only to

children under 21 years ofage who are covered under a Medicaid waiver or are identified as needing the service through an EarlY,and Periodic Screening, Diagnosis and Treatment Program (lIEPSDT") screening. (See Defs Ex. J).
In light ofthe amendment to 89 Ill. Admin. Code § 140.435 and the reasoning in the Court's December 19, 2000 Memorandum Opinion and Order, the pending complaint is now moot and must be dismissed. Further, the current TRO must be vacated. Plaintiffcan not maintain that she is likely to succeed on the merits ofher pending complaint because the basis for the December 19,2000 TRO

no longer exists. The Plaintifffailed to specifically respond to the Defendant's motion to vacate the TRO and
di.smiss the case as moot. The Plaintiff filed a motion of her own-Plaintiffs Motion for Leave to

File Supplemental Complaint and to Extend Temporary Restraining Order. The proposed supplemental complaint re-alleges the four counts from the present complaint and alleges three

additional counts. Plaintiffs motion states that the three additional claims set forth in the proposed supplemental complaint provide the justification for extending the TRO. (Pltfs Mot., ~ 4). Since the alleged bases for extending the TRO are pled only in the proposed supplemental complaint and the Plaintiffhas not yet been granted leave to file her supplemental complaint, the Court should rule

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on the Defendant's motion to dismiss the pending complaint and vacate the current IRO apart from
Plaintiffs motion for leave to file the supplemental pleading. Although the title ofthe Plaintiffs memorandumpurports to oppose the Defendant's motion,
it is not responsive to the Defendant's motion before the Court because the alleged reasons for
extending the IRO have not been properly pled at this time. Joseph J Henderson & Son v. Crystal
Lake, 318 Ill. App. 3d 880,848, 743 N.E.2d 713, 716 (2d Dist. 2001) (to succeed on motions for 'temporary injunctive relief, the moving party must plead and prove the necessary;elements) (emphasis added). The issues before the Court on the Defendant's motion to dismiss the pending complaint and vacate the current TRO are: (1) whether the State Plan Amendment was approved by
HCFA; and (2) whether the IDPA properly promulgated the amendment to 89 Ill. Admin. Code §
140.435 under the APA. If the Court answers both of these questions in the affirmative, this case is moot and the basis for the Court's December 19,2000, TRO is no longer viable.
To the extent the Plaintiffs memorandwn responds to the Defendant's motion by arguing the IDPA has not followed the APA in promulgating the rule mooting this case, the Plaintiffs argument rings hollow.
First, the IDPA did not implement any policy on January 3, 2001. (See Pltfs Mem., p. 4). The IDPA merely foHowed the reasoning of the Court~s (per Judge Byrne) December 19, 2000 Memorandum Opinion and Order and sought federal approval to amend the State Medicaid Plan. Once the federal government approved the State Plan Amendment on February 2,2001, the IDPA initiated the process required by the APA for amending the administrative rule, 89 Ill. Admin. Code § 140.435. The IDPA amended the State Medicaid Plan pursuant to federal procedures and amended the administrative rule under the Illinois APA. There is no evidence, and Plaintiff does not argue,

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that the IDPA attempted to enforce the approved State Plan Amendment before the 89 Ill. Admin.

Code § 140.435 was amended pursuant to the APA.

Second, in accordance with Section 5-40(b) of the APA, 5ILCS 100/S-40(b) (West 2000),

the: First Notice of the proposed amendment to 89 Ill. Admin. Code § 140.435 was published in the

Illinois Register on March 16,2001, (See Defs Ex. J), and complied with all relevant requirements

of Section 5-40(b). See 5 iLCS 100/5-40(b)(1)-(5) (West 2000). The Plaintiffs challenge to the

"Complete Description of the Subjects and Issues Involved" section of the First Notice:must fail.

Section 5 of the First Notice states:

In Section 140.435, ... text relating to coverage for private duty

nursing services and in-home nursing services is being stricken. The

. . . changes are being made as clarifications because payment is

provided for private duty nursing services only for children under the

age of 21 who are covered under a waiver, as described in Section

140.645, or are identified as needing the service through an EPSDT

screening (Early and Periodic Screening Diagnosis and Treatment

I"

Program) as described in Section 140.485.

This description clearly describes the substance ofthe amendment to 89 Ill. Admin. Code § 140.435

and states that the amendment means the IDPA only pays for private duty nursing services to

children under 21 who are covered under a Medicaid waiver or are in need of private duty nursing

through an EPSDT screening. Contrary to the Plaintiffs assertion, whether or not the IDPA

"should" cover private duty nursing to other individuals not specifically defined in the amendment

is ilTeievant to defining the rule amendment.

Despite the Plaintiffs semantic problems with the words "changel1 and "clarification," the

language in the First Notice stating, "the ... changes are being made as clarifications," is not

misleading because the description is clear as to the meaning of the amendment, its effect, and to

whom it applies. The description of the subjects and issues contained in the First Notice was

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sufficient to infonn the Plaintiffabout the substance ofthe amendment as evidenced by the fact that

the Plaintiff, her husband, and two ofher attorneys provided testimony and written comments on the

issue. (See DeCs Ex. L, pp. 4-6 (indicating that Donna and Lester Radaszewski, Sarah Megan, and

Eliot Abarbanel submitted comments on the First Notice during the public comment period).

The Plaintiffs citations to court decisions interpreting the federal APA are unavailing.

(Pltfs Mem., pp. 6-7). In" National Tour Brokers Ass'n v. United States, 591 F.2d 896 (D.C. Cir.

1978), a federal agency's notice indicated that it was looking toward formulating legislation to be

proposed to Congress-not administrative rulemaking. ld. at 899. The r'egulations in Kooritzky v. Reich, 17 F.3d 1509 (D.C. Cir. 1994), and DeBraun v. Meissner, 958 F. Supp. 227 (E.D. Pa. 1997),

were invalidated because the respective federal administrative agencies adopted rules that were

materially different from those originally proposed in the notices of rulemaking. Kooritzky, 17 F.3d

at. 151]; DeBraun, 958 F. Supp. 232. The Plaintiffs case is distinguishable from these federal cases h~<:ause (1) the First Notice is clear that the IDPA was proceeding with the rulemaking procedures under Illinois APA, and (2) the relevant portion of the proposed ~le, (DeC sEx. J), striking all

rderences to private duty nursing and in home nursing services in 89 Ill. Admin. Code § 140.435,

is identical to the adopted rule, (Defs Ex. P). See Tucker v. Atwood, 880 F.2d 1250, 1251 (11 th Cir.

1989) (in case where proposed and final version of rule were the same, the agency's description,

stating only that the regulations "redefine [ ] circumstances requiring use of an Affirmative Fair

Housing Marketing Plan," adequately described the subjects and issues involved, notwithstanding

tIl(: plaintiff's contention that the description failed to express the specific effect of the rules). In

any event, under the federal APA, notice is adequate if it informs interested parties of the issues to

be addressed in the rulemaking proceeding with sufficient clarity and specificity to allow them to

'''' participate in a meaningful and informed manner. American Medical Association v. United States,

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887 F.2d 760, 767 (7th Cir. 1989). In this case, the IDPA's First Notice adequately informed the

"

Plaintiffofthe proposed rule amendment and sufficiently allowed the Plaintiff, her husband, and her

attorneys to participate in the rulemaking proceedings.

Third, the Plaintiff disingenuously alleges that the IDPA shortened the public comment

period to 30 days in violation of the APA's 45-day requirement for public comment. (Pltf s Mem.,

p. 5). Section 5-40(b) requires that the first notice period last at least 45 days and is silent on the

length oftime an agency must set aside to accept written comments. See 5 ILCS 100/5-40(b) (West

2000). In this case, the IDPA requested written comments within 30 days ofpublication ofthe First Notice and specifically stated, tt[t]he Department will consider ~1l written comments it receives

during the first notice period ...tt (Defs Ex. J). Because the IDPA did not limit the written

comment period to 30 days, the only question is whether the first notice period lasted the requisite

45 days. It did.

"

The First Notice was published on March 16, 2001 and a public hearing was conducted on

May 23, 2001-68 days later-at which time witnesses were permitted to submit both oral and written

testimony. The first notice period lasted 129 days, (See Defs Ex. J, K, L and M), and was in excess

of the 45-day minimum required by the APA. 5 ILCS 100/5-40(b) (West 2000). The fact that the

Plaintiff, her husband, and her attorneys testified at the public hearing 68 days after the First Notice

provides further evidence that the IDPA did not limit the public comment period to 30 days. (Defs

Ex. L, pp. 4-6).

Fourth, contrary to the Plaintiffs allegations, the IDPA did not refuse to consider public

comments submitted during the first notice period. (See Pltfs Mem., pp. 5-6). The IDPA

considered oral and written testimony submitted during the first notice period from approximately

"

25 individuals, including the Plaintiff, her husband and her attorneys. (Defs Ex. L, pp. 4-7). The

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lDPA provided considered responses to the public comments. (Defs Ex. L, pp. 7-14). In several

instances, although not on the issue relevant to the Plaintiff, the IDPA made changes to the proposed

amendments based on the public comments. (DefsEx. L, p. 14). While the IDPA did not adopt the

arguments raised bytbe Plaintiffs supporters during the public comment period, their submissions

were nevertheless accepted and considered in the rulemaking process.

Plaintiff's reliance>onSenn Park Nursing Centerv. Miller, 104 Ill. 2d 169,470 N.E.2d 1029

(1984) is unfounded. In Senn Park; the Illinois Supreme Court examined an administrative rule

promulgated pursuant to the APA's emergency rulemaking procedures. "Jd. at 183-86,470 N.E.2d at 1036-37. In the present cas~, the IDPA has followed the general rulemaking procedures of 5

ILCS 100/5-40 (West 2000), including the provision allowing for public hearing and comment. 5

ILCS IOO/5-40(b) (West 2000). The APA requires only that the IDPA accept oral or written

submissions containing the Plaintiffs arguments and comments-it does not require the IDPA to

actually adopt those arguments and comments in the final administrative rule. See 5 lLCS 100/5-

40(b) (West 2000). In accordance with the APA, the IDPA accepted the Plaintiffs testimony and

the testimony of her supporters. (Defs Ex. L). Despite the fact that the IDPA did not adopt her

arguments, the Plaintiff cannot argue that the IDPA refused to consider her comments.

The remaining arguments in the Plaintiff's Memorandum in Support of Motion to Extend

Temporary Restraining Order and in Opposition to Defendant's Motion to Vacate and

Dismiss-violation ofthe Americans with Disabilities Act and violation ofthe Rehabilitation Act-are

di.rected to the Plaintiffs Motion for Leave to File Supplemental Complaint and To Extend

Temporary Restraining Order. These arguments are related to the new allegations contained in the

Plaintiffs proposed Supplementary Complaint and are not responsive to the Defendant's motion to

'''' dismiss the pending complaint and vacate the current TRO. The additional reasons Plaintiff raises

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for continuing the IRO are not properly before the Court at this time because Plaintiffhas not been

granted leave to file her supplemental complaint-the pleading upon which her motion for extension

of the IRO is based. Until the additional bases for extending the TRO are properly pled, the Court

cannot consider these reasons for extending the TRO. See JosephJ. Henderson & Son, 318 Ill. App.

3d at 848, 743 N.E.2d at 716. However, the Defendant reserves the right to respond to the new

grounds asserted for a IRQ in the event the Court grants the Plaintiff leave to file a supplemental

complaint and the new grounds for Plaintiffs motion to extend the cunent TRO are properly

presented before this Court.

On the Defendant's motion to dismiss the pending complaint and vacate the current TRO,

the IDPA has properly promulgated the amendment to 89 Ill. Admin. Code § 140.435 in accordance

with the general rulemaking provisions of the APA. See 5 ILCS 100/5-40 (West 2000). In light of

"

the Court's December 19,2000 Memorandum Opinion and Order, there is no basis for continuing
the CUlTent IRO and the pending complaint must be dismissed as moot. See Illinois Health Care Association v. Walters, 303 Ill.App.3d 435,710 N.E.2d 403,407-08 (1 st Dist. 1999) (in action where

nursing homes alleged that IDPA had failed to comply with APA in enacting certain rules and that

it had violated State Prompt Payment Act, subsequent adoption of rules pursuant to statutory

procedures and amendment ofPayment Act to eliminate coverage ofnursing homes cured violations

complained of by plaintiffs and mooted their requests for injunctive relief).

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WHEREFORE, the Defendant respectfully requests this Court to (1) grant her Motion to
Vacate Temporary Restraining Order and Dismiss Case as Moot, (2) vacate the Temporary
Restraining Order entered by this Court on December 19,2000, and (3) dismiss this case as moot.
Respectfully submitted,
JAMES E. RYAN Attorney General State of Illinois
JAMES C. O'CONNELL
DAVID ADLER
CHRISTOPHER S. GANGE Assistant Attorneys General 160 North LaSalle Street Suite N-I000 Chicago, Illinois 60601 (312) 793-2380 Alttorney No. 400028

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880 F.2d 1250 (Cite as: 880 F.2d 1250)

"l1l'i\

United States Court of Appeals, Eleventh Circuit.

Lillian TUCKER, Demetrio Carrion, Emma Carrion, Virginia Cruz, individually and on behalf of all others similarly situated, Concerned Citizens of Hardee County, Inc., Plaintiffs-Appellants,
v.
Anita Booth ATWOOD, C9unty Supervisor for Hardee County, Florida, for the
F'armers' Home Administration, Mitchell Drew, State Director in the State of
Florida for the Farmers' Home Administration, and Clayton K. Yeutter, Secretary
<l'f the United States Department of Agriculture, Defendants-Appellees.

No. 88-3880.

Aug. 21, 1989.

Challenge was made to regulations of the Farmers Home Administration. The United States District O:JlIrt for the Middle District of Florida, No. 841491-CIV T-15, William J. Castagna, J., upheld regulations. and appeal was taken. The Court of Appeals held that the FmHA provided sufficient notice of rule making prior to adoption of regulations dealing with afflrmative fair housing marketing plans.

Affirmed.

West HeadDotes
;
[1] Administrative Law and Procedure ~395 15Ak395 Most Cited Cases

Under the Administrative Procedure Act, notice of mle making is sufficient if it provides description of subjects and issues involved. 5 U.S.C.A. § 553(b).

[2] United States ~53(7) 393k53(7} Most Cited Cases

Filed 01/30/2002 Page 41 of 134
Page 2
*1250 Robert T. Connolly, Florida Rural Legal Services, Inc., Bartow, Fla., for plaintiffsappellants.
Dennis Moore, Asst. U.S. Atty., U.S. Atty's. Office, Tampa, Fla., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before HILL and EDMONDSON. Circuit Judges and GARZA [FN*], Senior Circuit Judge.
FN'" Honorable Reynaldo G. Garza, Senior U.S. Circuit Judge for the Fifth Circuit, Sitting by designation.
PER CURIAM:
Appellants challenge regulations of the Fanners Home Administration ("FmHA") on several grounds. Although we affirm the judgment of the district court largely on the basis of that court's opinion, we write for ourselves on the adequacy of notice of proposed regulations.
[1)[2] Under the Administrative Procedure Act. 5
U.S.C. Sec. 553(b) (1982) CAPA "), notice of rule
making is sufficient if it provides a description of the subjects and issues involved. Du Pan! de Nemours v. Train, 541 F.2d 1018, 1027 (4th Cir.1976), affd in part and rev'd in part. 430 U.S. 112, 97 S.Ct. 965, 51 L.Ed.2d 204 (1977); California Citizens Band Association v. United Stales, 375 F.2d 43 (9th Cir.), cert. *1251 denied, 389 U.S. 844, 88 S.C1. 96, 19 L.Ed.2d 112 (1967); see Lloyd Nolan Hosp. & Clinic v. Heckler, 762 F.2d 1561 (lIth Cir.1985). The pertinent proposed regulations were published in June 1984, a year before the regulations were finally adopted. A look at these regulations (in pertinent part, the proposal and the final version were the same) shows that private- sector brokers must comply with affirmative fair housing marketing plans only under certain circumstances.

FmHA provided adequate notice of rule making prior to enacting regulations regarding affirmative fair housing marketing plans; pertinent proposed re:gulations were published along with description of proposals one year before regulations were finally adopted. 5 U.S.C.A. § 553(b).

Appellants complain that this provlSlon relaxes previously existing standards and stress that the proposed rules failed to mention this relaxation specifically. The APA requires no more than "... a description of the subjects and issues involved. n 5 U.S.C. Sec. 553(b)(3) (1982). In ~adiidiiiitiiion_tilo_ _ __

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880 F. 2d 1250 (Cit,~ as: 880 F.2d 1250, *1251)
publishing the text of the proposed rules, the FmHA published a description of the proposals, which
staH:s "[that the regulations] '" G) Redefme [ ]
drcumsta:nces requiring use of an AffU'IIlative Fair Housing Marketing Plan. ft 49 Fed.Reg. 23,359, 23,360 (1984). This statement describes the

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subjects and issues involved and therefore gives adequate notice. AFFIRMED. END OF DOCUMENT

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887 F.2d 760
64 A.F.T.R.2d 89-5715, 89-2 USTC P 9585 (Cite as: 887 F .2d 760) ·IM

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United States Court of Appeals, Seventh Circuit.
AME:ruCAN :MEDICAL ASSOCIAnON, Plaintiff-Appellee, Cross-Appellant,
v.
UNnED STATES of America, DefendantAppellant, Cross-Appellee.
Nos. 88-3012, 88-3086.
Argued June 6, 1989. Decided Oct. 12, 1989.

original proposal. 5 U.S.C.A. § 553.
[2] Administrative Law and Procedure ~392.1 15Ak392.1 Most Cited Cases
(Formerly 15Ak392)
Agency's change of course, so long as generally consistent with tenor of its original proposals, indicates that agency treats notice-and-comment process seriously and is willing to modify its position where public's reaction persuades agency that its initial regulatory suggestions were flawed. 5 U.S.C.A. § 553.

TElx-exempt professional medical association sought refwld of federal income taxes imposed on income earned from sale of advertising in association's periodic.us. On appeal from rulings of the United Sta.tes District Court for the Northern District of
Illinois, Milton I. Shadur, J., 668 F.Supp. 1085,
688 F_Supp. 358, 691 F.Supp. 1170, the Court of Appeals, Cudahy, Circuit Judge, held that: (1) association received adequate notice of IRS' proposed regulations on allocation of membership dues to circulation income even though approach finally adopted by IRS was substantially different from notice of proposed rulemaking, and allocation rules were not plainly inconsistent with relevant provisions of Internal Revenue Code; (2) dues placed in "association equity" account could be considered current membership receipts and portion of payments allocated to circulation income in year reeeived; (3) costs of producing editorial content of journals distributed free of charge to promote association's advertising bUsiness were "direct advertising costs" directly deductible ftom advertising income; and (4) dues received from association members who were also members of control group were to be included in dues allocated to circulation income.
Affirmed in part and reversed in part.

[3] Administrative LaW" and Procedure ~395 15Ak395 Most Cited Cases
[3] Internal Revenue ~4047 220k4047 Most Cited Cases
Tax-exempt professional medical association received adequate notice of Internal Revenue Service's proposed regulations on allocation of membership dues to circulation income from its journals, even though rule that was finally adopted substantially differed from that described in notice of proposed rulemaking, and fmal rule was not invalid under Administrative Procedure Act for lack of proper notice; fmal rule was "contained" in proposed version, and merely eliminated some of alternative calculation methods specified therein. 5 U.S.C.A. § 553(b)(3).
[4] Internal Revenue ~3037 220k3037 Most Cited Cases
Courts should generally defer to Internal Revenue Service's interpretation of Internal Revenue Code in regulations meant to implement Code's provisions.
[5] Internal Revenue ~4047 220k4047 Most Cited Cases

"

West Headnotes
[1] Administrative Law and Procedure ~395 15Ak395 Most Cited Cases
Final rule is not invalid for lack of adequate notice if nIh: finally adopted is "a logical outgrowth" of

IRS regulations governing allocations of tax exempt professional medical association's membership dues receipts to Circulation income of association's periodicals were not plainly inconsistent with Internal Revenue Code provisions governing unrelated business income tax. 26 U.S.C.(l982 Ed.) §§ 511-513.

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[6] l[ntemal Revenue ~4068 220k4068 Most Cited Cases
Membership dues placed in tax exempt professional medical association's "association equity" reserve account and not employed to cover current expenses in tax years in question could be included in "membership receipts" for purpose of determining all.ocation of membership dues to circulation income from association's periodicals in calculating unrelated business income tax. 26 U.S.C.(1982 Eel.) §§ 511-513.
[7] Internal Revenue ~4068 220k4068 Most Cited Cases
Costs of producing articles and copies of lax-exempt professional medical association's journals that were
distributed free of charge as part of association's
controlled circulation were "direct advertising costs" fully deductible from advertising income for purposes of calculating unrelated business income ta:<. 26 U.S.C.(1982 Ed.) §§ 511-513.

This case involves the allocation of income and expenses between a charitable organization's taxexempt activities and its taxable business endeavors for purposes of computing the charity's "unrelated business income tax" under 26 U.S.C. sections 511 to 513. The American Medical Association (the "AMA"), a tax-exempt charitable organization, filed suit in the Northern District of Illinois seeking a refund for the tax years 1975 through 1978. The AMA argued that the Internal Revenue Service (the "IRS") had improperly calculated its income from the non-exempt unrelated business of publishing advertising in the organization's publications. In a series of opinions, reported at 668 F.Supp. 1085 (1987), 668 F.Supp. 1-101 (1987), 688 F.Supp. 358
(1988) and 691 F.Supp. 1170 (1988), the district
coUrt substantially agreed with the AMA' s statutory and regulatory arguments, and ordered the United States to pay the AMA the full amount of the refund requested. We affirm in part and reverse in part.
I.

[8] Internal Revenue ~4068 220k4068 Most Cited Cases
Dues :received from members of tax-exempt professional organization who were also members of control group were to be included in dues allocated to circulation income from association's journals for purposes of calculating unrelated business income tax. 26 U.S.C.(1982 Ed.) §§ 511-513. 15Ak395 Most Cited Cases
(Formerly 15Ak392) 15Ak395 Most Cited Cases .*762 George A. Platz, Michael L. Schultz, Frank V. Battle, Jr., Sidley & Austin, Chicago, 111., for American Medical Ass'n.
Gary R. Allen, William S. Rose, Jr., Asst. Atty. Gen., Dept. of Justice, Tax Div., Appellate Section, Washington, D.C., Eileen M. Marutzky, Asst. U.S. Atty., Chicago, 111., Robert S. Pomerance, David M. Moore, Thomas R. Jones, Dept. of Justice, Tax Div., Robert A. Saltzstein, Joseph J. Saunders, Slephen M. Feldman, Washington, D.C., for U.S.
Before CUDAHY, MANION and KANNE, Circuit Judges.
CUDAHY, Circuit Judge.

The AMA is a tax-exempt membership organization under section 501(c)(6) of the Internal Revenue Code. [FN1] Its charitable function is "to promote the science and art of medicine and the betterment of public health." In aid of this purpose the AMA publishes the Journal of the American Medical Association ("JAMA ") and the American Medical News ("AM News"). Most of the AMA's members pay annual dues to belong to the organization. Between 1975 and 1978, AMA members received JAMA and AM News at no additional cost as a benefit of membership.
FNl. Although the provisions of the tax laws relevant to this appeal were not substantially altered by the 1986 Tax Reform Act, all references in this opinion are to the (now-superseded) Internal Revenue Code of 1954 as amended, 26 U.S.C.
JAMA and AM News both contain articles of relevance to the practice of medicine. But the journals also contain paid advertising. During the relevant period the AMA sent complimentary copies of JAMA and AM News to targeted groups of physicians who make up an especiaJIy desirable audience for firms likely to advertise in the journals. The parties stipulated that the AMA' s sale purpose in engaging in this complimentary "controlled

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circulation" was to increase advertising revenues. Many of the AMA's dues-paying members were also on the controlled circulation list and therefore would have been entitled to receive lAMA and AM N~:ws even if they were not AMA members. However, the AMA apparently did not inform these physicians that they were entitled to complimentary copies of the journals. Nor did the AMA refund any portion of these physicians' membership dues in recognition of the fact that they need not have paid fo:r the periodicals.
Between 1975 and 1978. the AMA placed a portion of the membership dues it received in an "association equity" account. which was intended to
se:rve as a reserve fund to offset any deficit which
mi.ght occur in future years jf the association' s revenues were insufficient to cover expenses. The amounts deposited in the association equity account remained on the AMA' s books as a reserve until 1985, when the AMA withdrew some of these funds to compensate for a shortfall in its revenue.
There is no dispute that the editorial or readership content of the two periodicals furthers the AMA's charitable mission. and *763 therefore any revenue atlribmable to the publication and distribution of articles in JAMA and AM News is exempt from taxation. And the AMA has admitted that the advertising in JAMA and AM News is a business endeavor unrelated to the AMA's charitable purpose, and is therefore taxable. This case presents several questions involving the allocation of income and expenses between the exempt and ta;~able aspects of JAMA and AM News. and the all.ocation of membership dues between these periodicals and the AMA's other (exempt) activities.
The statutory scheme applicable to these journals is fairly straightforward. Section 511 of the Code provides that the "unrelated business taxable income" of a charitable organization is sUbject to the tax applied to corporate income under section 11. Se;ction 512(a)(1) defmes "umelated business taxable inl~ome" as
the gross income derived by any organization from any unrelated trade or business (as defmed in section 513) regularly carried on by it, less the deductions allowed by this chapter which are directly connected with the carrying on of such ..rade or business.... (emphasis added). Finally. section 513(a) defines

an "unrelated trade or business· as any trade or business the conduct of which is not substantially related (aside from the need of such organization for income or funds or the use it makes of the profits derived) to the exercise or performance by such organization of its charitable ... purpose or function constituting the basis for its exemption under section 501.. .. In a provision added in 1969, and significantly
titled "Advertising. etc., activities: section 513(c) further explains:
the term "trade or business" includes any activity which is carried on for the production of income from the sale of goods or the performance of services. For purposes of the preceding sentence, an activity does not lose identity as a trade or business merely beca~se it is carried on within a larger aggregate of similar activities or within a larger complex of other endeavors which may, or may not. be related to the exempt purposes of the organization.
The Supreme Court construed these provisions in United States v. American College of Physicians, 475 U.S. 834, 106 S.Ct. 1591, 89 L.Ed.2d 841 (1986). American College involved a charitable organization's medical journal which. as here. contained both articles which furthered the organization'S exempt function and paid advertisements. The Supreme Court held that section 513(c) clearly indicated Congress' intent to treat advertising in an otherwise tax-exempt publication as a separate "trade or business." which may be taxable if the "conduct of [the advertising business] is not substantially related ... to the ... performance by such organization of its charitable ... purpose." /d. at 839-40. 106 S.Ct. at 1594-95. To determine whether the advertising content of a journal is "substantially related" to the organization's educational mission, the IRS must look to the manner in which the advertising is selected and displayed; i.e., whether only advertising of new technologies or medications is allowed. whether the charity coordinates the subject matter and content of the ads, etc. Id. at 848-50. 106 S.Ct. at 1599-1600. The organization's tax exemption extends to its publication of advertising only if the advertisements "contribute[ ] importantly" to the charity's exempt purpose. Id. at 847, 106 S.C!. at 1599; see also United States v. American Bar Endowment, 477 U.S. lOS, 109-16, 106 S.C!. 2426, 2429-32. 91 L.Ed.2d 89 (1986).

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American College specifically endorsed the socalled "fragmentation" principle, whereby a charitable organization's publications are divided into two components: (1) the tax-exempt publication of the journal's "editorial" or "readership content"; and (2) the taxable enterprise of selling and publishing advertising. The United States and the AMA Hgree on these general principles; in fact, the AMA has even conceded that the advertisements in lAMA and AM News are not "substantially related" to the AMA's educational mission, and therefore constitute an "unrelated" business under *764 American College. The parties' disagreement centers on the application of the "fragmentation" principle to the facts of this case.
'TIle IRS has adopted detailed regulations which govern the allocation of revenues and expenses between ajournal's exempt editorial and non-exempt advertising activities. Regulation 1.512(a)-I(f)(6) provides for division of a periodical's costs into two categories:
(ii)(a) The direct advertising costs of an exempt organization periodical include all expenses, depreciation and similar items of deduction which are directly connected with the sale and publication of advertising.... The items allowable as deductions under this subdivision do not include any items of deduction attributable to the production or distribution of the readership content of the periodical.
***
(iii) The "readership" costs of an exempt organization periodical include expenses, depreCiation or similar items which are directly connected with the production and distribution of the readership content of the periodical.... IR]eadership costs include all the items of deduction attributable to an exempt organization periodical which are not allocated to direct advertising costs under subdivision (ii) ... 26 C.F.R. § 1.512(a)-1(t)(6). "Direct advertising costs" are fully deductible from gross advertising income, Reg. (f)(2)(i); "readership costs· are only deductible from gross advertising income to the extent they exceed circulation income. Reg. (t)(2)(ii)(b). "Circulation income," in tum, is defmed as the income attributable to the production, distribution or circulation of a periodical (other (han gross advertising income). . . . Where the

right to receive an exempt organization periodical is associated with membership .. . in such organization for which dues ... are received (hereinafter referred to as Hmembership receipts"), circulation income includes the portion of such membership receipts allocable to the periodical (hereinafter referred to as Hallocable membership receipts"). Reg. 1.512(a)-1(f)(3)(iii). Regulation (f)(3)(iii) goes on to explain that "allocable membership receipts· should generally represent the amount which a taxable organization would have charged for the periodical in an arms-length transaction with the member. The regulation refers taxpayers to regulation (f)(4) "for a discussion of the factors to be considered in determining allocable membership receipts." Regulation {f)(4) provides three methods for determining the share of membership receipts which should be deemed to constitute a member's payment for the right to receive the periodical. Only the third method of calculating allocable
membership receipts is applicable to lAMA and AM
News. That method is described as a ·pro rata
allocation. " Since it may generally be assumed that membership receipts and gross advertising income are equally available for all of the exempt activities (including the periodical) of the organization, the share of membership receipts allocated to the periodical, where [methods 1 and 2] do not apply, shall be an amount equal to the organization's membership receipts multiplied by a fraction the numerator of which is the total periodical costs and the denominator of which is such costs plus the costs of other exempt activities of the organization. Reg. 1.5l2(a)-1(f)(4)(iii). Therefore, the amount
of dues to be allocated to circulation income under the pro rata allocation method equals total membership receipts multiplied by the ratio of total periodical costs to the costs of all exempt activities_
The AMA raises a number of challenges to the validity of these allocation rules, and to the IRS's application of these principles in this case. However, before discussing the AMA's arguments in detail, it is worth noting that the AMA' s goal throughout this litigation has been to reduce, to the maximum extent allowable, its tax liability from its "unrelatedH advertising business. [FN2] *765 Therefore, the AMA would like to decrease the amount of its (taxable) advertising income by

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increasing the expenses (labelled •direct advertising costs") which are fully deductible from advertising income. And, since any loss attributable to the readership content of JAMA and AM News is also d~:ductible from advertising income (in something of a departure from strict application of the "fragmentation" principle), the AMA is also interestc!d in producing a loss on the readership side of the journals. Such a loss may be created, in part, by decreasing the amount of circulation income d~:rived through the allocation' of membership dues to circulation income in the form of a hypothetical slJ:bscription price which members pay (as part of their toral membership dues) for the right to receive the journals.
FN2. Of course the AMA is entitled to seek to minimize its tax liability to the fullest extent permitted by law. Gregory v. Helvering. 293 U.S. 465, 468-69, 55 S.O. 266, 267, 79 L.Ed. 596 (1935), aff'g, 69 F.2d 809, 810 (2d Cir.1934) (L. Hand, J.); Yosha v. Commissioner, 861 F.2d 494, 497 (7th Cir.1988).
The AMA argues, most generally, that the allocation regulations are invalid because the IRS did not comply with the notice and comment requirements of the Administrative Procedure Act (the "APA") in promulgating the rules. In the alternative, the AMA urges that the regulations are invalid because they conflict with the statutory provisions governing the unrelated business income ta:<.
The AMA also makes a series of fact-specific arguments. First, it argues that membership dues which were placed in !be "associationequity" reserve account, and which ·were not employed to cover current expenses in the tax years in question, should not hav(~ been included in ~membership receipts ff for the purpose of determining the allocation of membership dues to circulation income. The AMA's next two arguments relate to its practice of distributing complimentary copies of JAMA and AM N~ws as part of its ~controlled circulation." The AMA argues, first, that the cost of producing the articles in these complimentary copies (which would normally be considered "readership costs" and deductible only from tax-exempt circulation income) should be considered "direct advertising costs" since the AMA' s sole purpose in distributing these copies was to promote its advertising business. Second,

the AMA argues that the dues of physicians who were AMA members, but who were entitled to receive the journals anyway due to their membership in the control groups, should not be included in allocable membership receipts, since it is absurd to suggest that these phYSicians paid for a journal which they would have received free of charge in any case.
The district coun accepted the AMA' s arguments in substantial part. In its first opinion, the coun held that the costs of producing the editorial content of journals distributed free of charge to promote the AMA's advertising business were Rdirect advertising· costs" directly deductible from advertising income. 668 F.Supp. 1085, 1094-96 (N.D.1l1.1987). The court also ruled that the dues placed in the AMA' s "association equity~ account should not have been considered current membership receipts, .and therefore no portion of these payments should have been allocated to circulation income in the year received. Id. at 1096-97. Finally, the court ruled, contrary to the AMA view, that the dues received from AMA members who were also members of the control group were to be included in the dues allocated to circulation income. Id. at 1097-98.
The court's second opinion rejected the AMA's argument that the allocation rules were inconsistent with the governing provisions of the tax code. 668 F.Supp. 1101, 1102-04 (N.D.Ill.1987). However, the court found the regulations invalid because their promulgation did not comply with the notice requirements of the APA, since the fmal allocation rules adopted ~an entirely different approach to the determination of allocable membership receipts R than the initial proposal. Id. at 1104-06. Since the court concluded that it was impossible to determine the AMA's tax liability without the benefit of any (valid) allocation rules, the action was stayed to allow the IRS to promulgate new allocation rules in a manner *766 consistent with the APA. /d. at 1107-08.
The district court's third opinion, 688 F.Supp. 358 (N.D.111.1988), rejected the Government's petition for reconsideration of the court's APA ruling. The court held that the Government had waived the argument that the allocation rules were not subject to the notice-and-comment provisions of the APA since the rules were "interpretative, " rather than "legislative." See 5 U.S.C. § 553(b)(A), (d)(2).

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Following this rebuff the Government refused to repromulgate the allocation rules. Therefore, in its fourth opinion, the court granted the AMA a refund in the full amount requested in the complaint. 691 F.Supp. 1170 (N.D.Ill.1988).

II.

The AMA argues most generally that the rules

governing the allocation of a portion of membership

dues receipts to circulation' income are invalid

because the public did not receive adequate notice of

the IRS's regulatory intentions before the fmal rules

were issued.

The AMA contends that the

inadequate notice violated section 553(b)(3) of the

APA, which requires an agency proposing a new

nile to include in the notice of proposed rulemaking

(thl! ~NPR") "either the terms or substance of the

proposed rule or a description of the subjects and

issues involved." 5 U.S.C. § 553(b)(3).

The allocation rule fmally adopted, see 26 C.F.R. §

1.512(a)-I(f)(4), provides three methods for

determining the portion of membership dues which

will be allocated to circulation income. (In essence,

these allocation rules are meant to determine a

hypothetical subscription price which members of a

charitable organization pay for the organization's

journals as part of their single, undivided dues

payment.) First, if 20% or more of the journal's

circulation consists of sales to nonmembers, then

this arms-length sale price is deemed to be the price

paid by members. Reg. (f)(4)(i). If this first

method does not apply, and 20% or more of the

association's members elect not to receive the

journal in exchange for a reduction in their dues

assessment, the amount of the dues reduction is

determined to be the imputed price of the journal to

members who receive it. Reg. (f)(4)(ii). Finally,

if these: twO allocation methods are inapplicable, the

allocable portion of membership dues is calculated

by determining the ratio of the association's costs

for producing the journal in relation to the cost of all

c.f the association's exempt activities.

The

regulation then prescribes that allocable membership

d.ues bl!ar the same relationship to total dues receipts

as the proportion of the costs of the journal to the

cost of all activities. This is the "pro rata allocation

method" of regulation (f)(4)(iii). [FN31 These three

allocation rules are apparently the exclusive methods

Clf determining allocable membership receipts under

the final rule.

FN3. A simple hypothetical may clarify our rather unwieldy verbal statement of this third allocation
method. Assume a tax-exempt organization receives a total of $200 in dues revenues. The association'S journal COSts $30 to produce; the total cOSt of producing all of the association's exempt activities (including the journal) is $150. Therefore, the cost of the journal is one-fifth of the total activity costs. Under the pro rata allocation method, one-fifth of membership receipts, or $40,
would be allocated to circulation income.

In contrast to the ironclad, exhaustive methodology

cif the fmal version, the proposed allocation rule

enumerated seven factors which would be

considered in allocating dues receipts to circulation

income. 36 Fed.Reg. 18,316, 18.318-20 (1971).

The NPR specifically stated that other factors

beyond those mentioned would be considered where

appropriate. ld. at 18,31 8. Moreover. the third of

the seven factors listed in the proposed rule provided

that:

The fact that a taxable organization issues a

periodical which is comparable to an exempt

organization periodical and makes a practice of

distributing substantially all of its circulation at no

charge is substantial evidence that none of the

membership receipts of the exempt organization

are allocable to its periodical.

.

ld. The AMA believes that this (never-

promulgated) provision would have permitted it to

allocate no membership receipts to *767 circulation

income, since the AMA' s taxable competitors

distribute most of their periOdicals through

complimentary controlled circulation. However,

under the final rule's pro rata allocation method, the

IRS allocated approximately $33 per member, or

almost $6 million, to circulation income.

The district court concluded that the final rule adopted "an entirely different approach to the determination of allocable membership receipts· and "deviated so drasticany~ from the NPR that the fmal rule was invalid due to the inadequacy of the notice of the terms of the final rule. 668 F.Supp. at 1105-06. We agree with the district court that the final rule indeed worked a substantial change to the NPR: gone is the flexible, case-by-case "totality of the circumstances" approach of the original proposal; in its stead the IRS has substituted a limited set of precise rules which must be applied in all cases. But we do not agree with the district

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court's holding that this change in approach (which was occasioned by the numerous criticisms of the NPR's vagueness and malleability) renders the rule invalid under the APA.
[1] Two types of notice of proposed rules are authorized by section 553: either notice which specifies the "tenns or substance" of the cCllltempiated regulation or notice which merely identifies the "subjects and issues involved" in the rulemaking proceeding inaugurated by the notice. 1l1US the statutory language makes clear !hat !he notice need not identify every precise proposal which the agency may ultimately adopt; notice is adequate if it apprises interested parties of the issues to be addressed in the rule-making proceeding with stlfticient clarity and specificity to allow them to participate in the rulemaking in a meaningful and informed manner. .[FN4] Stated another way, a final rule is not invalid for lack of adequate notice if the rule: fmally adopted is "a logical outgrowth" of the original proposal. [FN51
FN4. The legislative history of the APA makes this point quite explicitly. See S.Rep. No. 752, 79th Cong., 1st Sess. 14 (1945) ("Agency notice must be sufficient to fairly apprise interested parties of the issues involved. "), reprinted in Senate Judiciary Comm., Administrative Procedure Act: Legislative History, 187, 200 (Comm. Print 1946) ("Legislative History h); H.Rep. No. 1980, 79th Cong., 2d Sess. 24 (1946), reprinted in Legislative History 235, 258. The Attorney General's Manual on the Administrative Procedure Act (1947), often considered an especially persuasive aid to interpretation of the APA, also noted that, even where the agency could publish the specific wording of a proposed rule, it was still permissible to publish instead "a more general 'description of the subjects and issues involved.' " Id. at 29. For a sampling of the cases which have held that an agency need not publish in an NPR the precise terms of a rule finally adopted, see Chocolate Mfrs. Ass'n v. Block. 755 F.2d 1098, 1104 (4th Cir.1985); American Transfer & Storage Co. v. ICC, 719 F.2d 1283, 1303 (5th Cir.1983); Sierra Club v. Costle. 657 F.2d 298,352 (D.C.Cir.1981); Daniel Int'l Corp. v. OSHA. 656 F.2d 925, 932 (4th eir.198l); Bonney Motor Express, Inc. v. United States, 640 F.2d 646, 650 (5th elr.1981); Spartan Radiocasting Co. v. FCC, 619 F.2d 314, 321-22 (4th Cir.1980); Consolidation Coal Co. v. Costle, 604 F.2d 239,248-49 (4th Cir.1979), rev'd on other growuls sub nom. EPA v. National Crushed Scone Ass'n, 449 U.S. 64, 101 S.O. 295,

66 L.Ed.2d 268 (1980).
FN5. South Terminal Corp. v. EPA, 504 F.2d 646. 659 (1st Cir.I974); see also AFL-CIO v. Donovan, 757 F.2d 330, 338 (D.C.Cir.1985); Chocolate Mfrs. Ass'n v. Block, 755 F.2d 1098, 1105 (4th Cir.1985).
[2] That an agency changes its approach to the difficult problems it must address does not signify the failure of the administrative process. Instead, an agency's change of course, so long as generally consistent with the tenor of its original proposals, indicates that the agency treats the notice-andcomment process seriously, and is willmg to modify its position where the public's reaction persuades the agency that its initial' regulatory suggestions were flawed. [FN6] As Judge Leventhal explained,
FN6. See PennzoiI Co. v. FERC. 645 F.2d 360. 372 (5th Cir.1981) (agency's reversal of position on contested issue "demonstrates not that the agency acted arbitrarily, but simply that the administrative process was working.... [M]odification of proposed rules in light of wriuen and. oral presentations is the heart of the rulemaking process."), cert. denied. 454 U.S. 1142, 102 S.Ct. 1000, 71 L.Ed.2d 293 (1982).
[t]he requirement of submission of a proposed rule for comment does not automatically generate a new opportunity for comment merely because the rule promulgated by the agency differs from the *768 rule it proposed, partly at least in response EO submissions.... A contrary rule would lead to the absurdity that in rulemaking under the APA the agency can learn from the comments on its proposals only at the peril of starting a new procedural round of commentary.
International Harvester Co. v. Ruckelshaus, 478
F.2d 615,632 & n. 51 (D.C.Cir.1973). [FN7]
FN7. Other courts have also stressed that section 553 should not be construed to place administrative agencies in the dilemma of eilher ignoring comments (in which case a final rule may be invalidated due to the agency's intransigence) or modifying its proposals in response to comments. thus triggering another round of notice and commentary. See, e.g., Trans-Pacific Freight Conference v. FederaL Maritime Comm'n, 650 F.2d 1235, 1249 (D.C.Cir.1980) (Wilkey, J.), cert. denied, 451 U.S. 984, 101 S.Ct. 2315. 68 L.Ed.2d 840 (1981); South Terminal Corp. v.

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EPA, 504 F.2d 646,659 (lst Cir.1974).
Of course, in this context the enunciation of general legal principles is not especially helpful. The adequacy of notice in any case must be determined by a close examination of the facts of the particular prm:eeding which produced a challenged rule. However. without reciting in detail the facts of other cases, we note that courts have upheld fmal rules which differed from proposals in the following significant respects: outright reversal of the agency's initial position; elimination of compliance options contained in an NPR; collapsing, or further SUbdividing, distinct categories of regulated entities established in a proposed rule; exempting certain entities from the coverage of final rules; or altering th:: method of calculating or measuring a quantity relevant to a parry's obligations under the rule. [FN8]
FN8. See, e.g., Natural Resources Defense
Council v. EPA, 824 F.2d 1258. 1283-84 (1st Cir.1987); American Transfer & Storage Co. v. ICC, 719 F.2d 1283. 1303 (5th Cir.1983); Smail
Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 547-48 (D.C.Cir.1983); Connecticut Light & Power Co. v. NRC, 673 F.2d 525. 532·34 (D.C.Cir.), cert. denied, 459 U.S. 835. 103 S.Ct. 79, 74 L.Ed.2d 76 (1982); Daniel Int'l Corp. v. OSHA, 656 F.2d 925, 931-32 (4th Cir.1981); Pennzoil Co. v. FERC, 645 F.2d 360, 371·72 (5th Cir.1981), cere. denied, 454 U.S. 1142,102 S.Ct. 1000, 71 L.Ed.2d 293 (1982); Consolidation Coal Co. v. Castle, 604 F.2d 239, 24649 (4th CiL1979), rel"d on other groUluls sub nom. EPA v. National Crushed Stone Ass'n, 449 U.S. 64, 101 S.Ct. 295, 66 L.Ed.2d 268 (1980); RASF
Wyandotte Corp. v. Costle, 598 F.2d 637. 64244 (1 St Cir.1979), cere. denied sub nom. Eli Lilly & Co. v. Costle, 444 U.S. 1096, 100 S.Ct. 1063. 62 L.Ed.2d 784 (1980); American Iron & Steel Inst. v. EPA, 568 F.2d 284, 293-94 (3d Cir.1977); South Terminal Corp. v. EPA, 504 F.2d 646. 658-59 (Ist Cir.1974); Abington Memorial Hosp. v. Heckler, 576 F.Supp. 1081, 1085 (E.D.Pa.1983), district court's opinion adopted, 750 F.2d 242, 243 (3d CiL1984), cert. denied, 474 U.S. 863. 106 S.Ct. 180, 88 L.Ed.2d 149 (1985).
On the other hand, a rule will be invalidated if no notice was given of an issue addressed by the final mles. Moreover, courts have held on numerous occasions that notice is inadequate where an issue was only addressed in the most general terms in the initial proposal, or where a final rule changes a pre-

existing agency practice which was only mentioned in an NPR in order to place unrelated changes in the overall regulatory scheme into their proper context. [FN9]
FN9. AFL-CIO v. Donovan, 757 F.2d 330, 339 (D.C.Cir.1985); Chocolate Mfrs. Ass'n v. Block, 755 F.2d 1098, 1106 (4th Cir.1985); Small Refiner Lead Phase-Down Task Force v. EPA, 705 F.2d 506, 548-49 (D.C.Cir.1983); Koliett v. Harris, 619 F.2d 134, 144 & n. 13 (1st Cir.1980); American Standard, Inc. v. United States, 220 Ct.CI. 411, 602 F.2d 256, 267·69 (1979); id., 602 F.2d at 269 (Nichols. 1., concurring).
[3] The crucial issue, then, is whether parties affected by a fmal rule- were put on notice that "their interests [were] 'at stake'"; [FNlOJ in other words, the relevant inquiry is whether or not potential commentators would have known that an issue in which they were interested was "on the table" and was to be addressed by a final rule. From this perspective it is irrelevant whether the proposal contained in the NPR was favorable to a particular party's interests; the obligation to comment is not limited to those adversely affected by a proposal. "[A]pproval of a practice in a proposed rule may properly alert interested parties that the practice may be disapproved in the final rule in the event of adverse comments." [FNl1] *769 Even a favorable proposal should notify an interested party that a particular issue has been opened for discussion. The publication of a proposed rule does not forever bind the agency to the approach contained in the NPR; if interested parties favor a particular regulatory proposal, they should intervene in the rulemaking to support the approach an agency has tentatively advanced.
FNlO. Spartan Radiocasting Co. v. FCC, 619 F.2d 314, 321 (4th Cir.1980) (quoting South Terminal Corp. v. EPA, 504 F.2d 646, 659 (lst Cif. 1974».
FNll. Chocolate Mfrs. Ass'n v. Block, 755 F.2d 1098, 1107 (4th Cir.1985); see also Association of Am. Railroads v. Adams, 485 F.Supp. 1077, 1085 (D.D.C.1978) ("Essentially. the [petitioner] asserts the right of a party agreeing with an agency's initial proposal to refrain from commenting thereon and then to insist that the proposed rule not be changed to its detriment. The Court feels compelled to reject this position. H).

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Judged by these standards, it is clear that the AMA rw~ived adequate notice of the IRS's proposed regulations on the allocation of membership dues to circulation income. The approach frnally adopted by the IRS, while substantially different from the NPR, was a "logical outgrowth~ of the original proposal. The fmal rule dealt with the identical issue of dues allocation, merely altering the allocation regime to assure greater consistency and fairness. The allocation rules fmany adopted were not a wholly new approach ,to the issue of dues allocation. Instead the final rule was "contained" in tr.e proposed version, and merely eliminated some of the alternative calculation methods specified in the NPR. Thus all aspects of the fmal rule were available to the public for comment. Moreover, the possibility that membership dues might be imputed in part to a tax-exempt organization's periodicals was an issue which had not previously been addressed by IRS regulations or established practice. The NPR for the first time dealt with an issue of great importance to organizations like the AMA. All such organizations must have recognized that the IRS was writing on a clean slate; the AMA cannot a:rgue that it relied on established past practice as a justification for its non-participation. The AMA' s sole explanation for its failure to comment is that the mle as initially proposed looked fine to it, and therefore the association saw no need to intervene in the rulemaking. But as we have seen, an agency's propos~:d rule is merely that, a proposal. While an a,gency must explain and justify its departures from a proposed rule, it is not straitjacketed into the approach initially suggested on pain of triggering a further round of notice-and-comment. The AMA was given a meaningful opportunity to comment on the IRS's dues allocation rules, and those rules will not be invalidated for lack of proper notice.
III.
The AMA also contends that the allocation rules are inconsistent with the Code sections governing the unrelated business income tax. The regulations establish a dichotomy between "direct advertising costs" and "readership costs"; readership costs (!:hose expenses associated with the production and distribution of the editorial content of a periodical) are not fully deductible from advertising income. The AMA argues that the readership content of its journals contributes to the production of advertising revenue; to the extent the regulations prohibit the

deduction of readership costs directly from advertising income, they are inconsistent with the statutory mandate that expenses "directly connected with.. an unrelated business should be fully deductible. See § 512(a)(1). The AMA also contends that the allocation rules are invalid because they ignore competitive factors in allocating membership receipts to circulation income. According to the AMA the overriding purpose of the unrelated business income tax was to equalize competition berween taxable and tax-exempt entities operating similar enterprises; to the extent the regulations prohibit the AMA from demonstrating that the subscription price charged by its;competitors is lower than the result of the pro rata allocation method, the regulations impermissibly depart from the "competition-equali?,ing" purpose of the statute.

[4] At the outset we note that the Supreme Court

has indicated that courts should generally defer to

the IRS's interpretation *770 of the Internal Revenue

Code in regulations meant to implement the Code's

provisions. Treasury regulations ft , "must be

sustained unless unreasonable and plainly

inconsistent with the revenue statutes," and "should

not be overruled except for weighty reasons." , "

[FNI2]

"The choice among reasonable

interpretations is for the Commissioner, not the

courts." National Muffler Dealers Ass'n, Inc. v.

United States, 440 U.S. 472, 488, 99 S.Ct. 1304,

1312, 59 L.Ed.2d 519 (1979); Chevron USA Inc. v.

Natural Resources Defense Council. Inc., 467 U.S.

837, 842-45, 104 S.Ct. 2778, 2781-83, 81 L.Ed.2d

694 (1984).

FNI2. Thor Power Tool Co. v. Commissioner. 439 U.S. 522,533,99 S.Ct. 773, 781, 58 L.Ed.2d 785 (1979) (quoting Bingler v. Johnson. 394 U.S. 741, 750, 89 S.C!. 1439, 1445, 22 L.Ed.2d 695 (1969) (quoting Commissioner v. South Texas Lwnber Co., 333 U.S. 496, 501, 68 S.Ct. 695, 698, 92 L.Ed. 831 (1948))); see also United States v. Vogel Fertilizer Co.• 455 U.S. 16, 24-26 (l982); National Muffler Dealers Ass'n, Inc. v. United States, 440 U.S. 472. 476. 99 S.Ct. 1304, 1306. 59 L.Ed.2d 519 (1979) (IRS's regulations, " 'if
found to • implement the congressional mandate in some reasonable manner," must be upheld' ") (quoting United States v. Cartwright, 411 U.S. 546, 550, 93 S.C!. 1713, 1716, 36 L.Ed.2d 528 (l973) (quoting United States v. Correll, 389 U.S. 299, 307, 88 S.Ct. 445, 449, 19 L.Ed.2d 537 (1967))); Fulman v. United States, 434 U.S. 528, 533, 98 S.Cl. 841, 845, 55 L.Ed.2d I (1978);

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Waler Quality Ass'n Employees' Benefit Corp. v. United States. 795 F.2d 1303, 1305-06 (7th Cir.1986).
[51 The regulations related to the deductibility of a periodical's expenses generally parrot the statutory language. The statute states that expenses are fully deductible from taxable income if they are ~directly connected with" the conduct of the unrelated business; the regulation similarly provides that "direct advertising costs.", which are fully deductible. are those costs which are "directly cormected with the sale and publication of advertising. n Reg. 1.512(a)-I(f)(6)(ii)(a). So far, there would not appear to be any problem.
However, the regulation goes on to state that "readership costs, n (those costs which are "directly cormected with the production and distribution of the readership content of the periodical"), are only deductible from advertising revenues to the extent that those costs exceed circulation income; i.e., only to the extent that the editorial side of the joumal produces a "loss." Reg. 1.512(a)-I(d}(2), (f)(1). [FN13] These are the provisions with which the AMA vigorously disagrees. For as the AMA see:s things, the readership content of a journal contributes to its publisher's ability to sell advertising--a journal with high-quality articles is presumably more widely read and advertisers are accordingly more likely to place ads for their products in such a periodical. By failing to take ac(:ount of the symbiotic relationship between advertising and editorial content, the regulation impermissibly fails to allow the deduction of costs which are in reality "directly cOlll1ected with" the sale and publication of advertising.
FN13. The definition of fully deductible advertising costs specifically excludes "items of deduction attributable to the production or distribution of the readership content of the periodical.· Reg. 1.512(a)- 1(t)(6)(ii)(a). Thus it is clear that the regulations generally do not contemplate the direct deduction of readership costs from advertising income.
While the AMA's argument is perhaps minimally plausible, we do not believe the AMA has carried the: heavy burden of demonstrating that the IRS's contrary approach is ~plainly inconsistent" with the tax code. First, we note that the AMA's position he:re is somewhat ironic--the AMA has been

accorded a tax exemption for the readerShip content of its journals because the publication of a periodical furthers the organization's charitable purposes by disseminating knowledge to its members. The AMA (and many other tax-exempt organizations) initially argued that even the advertising revenue of its periodicals was tax exempt, because the advertising subsidized the readership content of the journal and thereby contributed to the organization's exempt purposes. That position was ultimately defeated by the addition of section 513(c) to the Code, and the decision in United Slates v. American College oj Physicians, 475 U.S. 834, 106 S.Ct. 1591, 89 L.Ed.2d 841 (1986). The. AMA now essentially reverses its position, portraying its
journals as, in large part, vehicles for advertising, *771 and seeks to hav~ a portion of editorial costs deducted directly from taxable advertising income.

Certainly, the AMA makes a valid point that the

editorial content of its journals contributes in some

manner to the success of the advertising business.

Presumably few AMA members would read, and

therefore few advertisers would advertise in, a

journal which was one-hundred percent advertising.

However, it is entirely plausible to label this general

benefit which the articles confer on the advertising

"indirect" (and therefore not fully deductible from

advertising revenue), especially when advertising is

viewed (as it must be under the ~fragmentation·

principle, see section 513(c) of the Code) as a

separate and independent enterprise. The costs of

producing the readership content of the AMA 's ...

journals is most directly connected with the editorial.

"business· of the journals; these costs are

attributable only indirectly to the other business .....

(advertising) which .the AMA also conducts within·

the confines of a single periodical. See Reg.

1.512(a)- l(a) ("to be 'directly connected with' the

conduct of unrelated business for purposes of section

512, an item of deduction must have proximate and

primary relationship to the carrying on of that

business"). If two businesses occupy a single

building, and one business increases its sales

volume, thereby increasing the customer traffic··

through the common building, benefitting the

second, independent enterprise, we would without

hesitation label the effect on the latter business

"indirect.·

The situation of the AMA's

publications is identical--the AMA essentially carries

on two separate businesses "under the same roof";

when one business. does well and increases the allure

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of the building as a whole to customers, the effect all the second business is "indirect" and therefore the first enterprise's expenses are not immediately dt~ductible from the latter's income. It is certainly n:asonable for the IRS to have concluded that, in general, "readershIp costs· of the AMA 's periodicals are not "directly connected with" the conduct of the AMA's advertising business.
l11e AMA argues that the Second Circuit's decision
in. Rensselaer Polytechnic Institute v. Commissioner,
732 F.2d 1058 (1984), requires that the AMA be allowed. to deduct some portion of readership costs
from advertising income. Rensselaer involved a
fi,::ldhouse operated by a tax-exempt educational institution. The fieldhouse was used for both taxexempt, student events (e.g.• college athletics), and fCir commercial functions, such as commercial ice shows. The staging of commercial events at the fil~ldhouse constituted an "unrelated business. • The allocation question before the Second Circuit involved certain "fixed costs" of operating the structure-- repairs, depreciation, salaries of fil~ldhouse personnel, etc. The court held that those fixed expenses should be allocated to the school's tax..exempt and taxable businesses based on the number of hours for which the fieldhouse was used for each activity, since the fixed costs were attributable to both student and commercial events.
Id. at 1061-62; see also Disabled Am. Veterans v. United States, 704 F.2d 1570, 1573-74
(Fed. C i r .1983)_
Rensselaer is distinguishable from this case. R,msselaer involved the cost of goods or services
which actually benefited both the tax-exempt function and the unrelated trade or business.
Ren.sselaer would control the present case if the
AMA wished to apportion the costs of a printing press, paper stock or employees used in both the editorial and advertising businesses based on the extent to which each business employed the common resource. Such an apportionment would clearly be proper, since the expense benefited both activities in some measure.
But Rensselaer does not address the independent
question whether, assuming costs are directly tied to
only one activity, those costs may still be deductible
from the other activity, because the activities themselves benefit each other in some undefined
fashion. In Rensselaer the school did not argue that

a portion of the costs of its student functions should be deducted from its taxable income because staging student events promoted commercial leasing by demonstrating to the entertainment *772 industry that the fieldhouse was an attractive venue fully capable of handling major events. (As a factual matter, such an argument might well be accurate-commercial promoters would doubtless be hesitant to stage a major entenainment event in a stadium which was seldom used, and with which the local audience was unfamiliar.) We have no doubt that,
if such an argument had been presented, the Second
Circuit would have rejected it for the same reasons we reject the AMA I S argument here-, while one activity may benefit the other in some generalized way, that beneficial effect is more properly viewed as only "indirectly connected" 10 the benefited business.

The AMA also contends that the regulations are

invalid because they ignore the situation of the

AMA's taxable competitors in determining the

portion of membership dues receipts to be allocated

to circulation income. The AMA argues that the

approach of the regulations is inconsistent with the

fundamental purpose of the unrelated business

income tax, which was to equalize competition

between taxable and tax-exempt organizations plying

the same trade. The AMA argues that this

"competition-equalizing" goal can be attained only

by placing the AMA's journals on the "same [i.e.,

identical] tax basis" as its commercial competitors.

The simple answer to this argument is that, although

the equalization of competition was indeed a major

goal of the unrelated business tax, Congress never

intended to place tax-exempt organizations on a tax

basis identical to that of their commercial

competitors.

Congress instead endorsed the

"fragmentation" principle, whereby a charity'S

periodicals are divided into two components. In

light of Congress' adoption of the "fragmentation"

concept, it is not possible to place the AMA' s

journals on an identical footing with competing

publications. Taxable publications labor under no

"fragmentation" requirement; there is no need for a

taxable publisher to segregate its income or expenses.

into components, some taxed. others not. A

commercial publisher is taxed on all aspects of its

business. Therefore, although it is certainly

instructive to recall the purposes underlying the

enactment of the unrelated business income tax,

direct analogies to the tax treatment of commercial

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publishers are of limited assistance in deciding specific allocation questions involving tax- exempt or ganizations.
Moreover, while the equalization of competition b~:tween taxable and tax-exempt entities was a major goal of the unrelated business income tax, it was by no means the statute's sole objective. As the Fifth Circuit concluded after conducting a detailed e,;amination of the legislative history of the unrelated business income tax, "although Congress enacted the predecessors of section 511-513 to eliminate a perceived form of unfair competition, that aim existed as a corollary to the larger goals of producing revenue and achieving equity in the tax
system." Louisiana Credit Union League v. United States, 693 F.2d 525, 540 (5th Cir.1982); see also Rensselaer, 732 F.2d at 1063-64 & n. 2 (Mansfield, J., dissenting). This interpretation of the unrelated
business income tax should not be constrained by a narrow focus on only one of several objects which motivated Congress to enact the tax.
We will not second-guess the IRS's decision to eliminate from its proposed rules the allocation method using as a benchmark periodicals of comparable taxable enterprises in computing the portion, if any, of a charitable organization's membership dues to be considered an implicit SUbscription payment. The IRS could reasonably conclude that the efforts required to attempt to determine whether another publication was "comparable" were not worthwhile. This is true especially if, as in the fmal rule here, allocable membership receipts could be determined using factors internal to the charity. such as the relation of periodical costs to the cost of all exempt activities. Although the AMA' s alternative allocation approach is also reasonable (and in fact was included in the IRS's initial proposal), it is for the IRS to choose among a number of rational approaches to a difficult question of income measurement. We therefore conclude that the IRS regulations governing the allocation of membership *773 dues to circulation income are not inconsistent with the relevant provisions of the Internal Revenue Code.
IV.
[6] The AMA argues that membership dues which it placed in an "association equity" account should not have been counted as current membership

receipts in order to determine the amount of membership dues which should be considered a member's payment for the right to receive the AMA's periodicals. The amounts paid into the association equity account were not used to meet the AMA 's expenses in the tax years in question, but were instead employed as a reserve fund to meet possible future operating deficits. The parties stipulated that the amounts placed in this reserve were in fact not employed by the AMA to compensate for revenue shortfalls until the 1985 tax year.
The IRS regulation outlining the "pro rata allocation method" for membership dues states that this method for determining an imputed subscription price for a charity's publications r!!sts on the assumption "that membership receipts and gross advertising income are equally available for all of the exempt activities (including the periodical) of the organization." Reg. 1.512(a)- I(f)(4)(iii). Where membership receipts are not employed to meet current expenses (and are not, in fact, even "available" to pay current expenses due [Q a self-imposed restriction on the use of the funds), the AMA contends that the explicit premise of the pro rata allocation method does not apply, and therefore that portion of dues which is set aside to meet future expenses must be excluded from the pro rata calculation. The district court accepted this argument. 668 F.Supp. at 1096-97.
We cannot agree with the AMA's argument. The fundamental premise of regulation (f)(4)(iii) is that the activities of a charitable organization produce revenue in the same proportion that the costs of those activities bear to one another. But the
regulation does not necessarily assume that all
membership receipts are actually expended to meet activity costs; instead, it is entirely consistent with the regulation to frod that the activities of an exempt organization produce a "profit,· in the sense that those activities produce revenues in excess of their costs. All the regulation assumes is that, if the organization in fact reaps a ·profit" from its activities, that profit was produced by all of the association's activities in equal measure (i.e., the ·profit margin" of each activity is assumed to be the same). Members need not believe they are receiving the benefits of membership "at cost·; it is perfectly rational to assume that members realize they are paying more for services than those services cost the organization to provide. Therefore, although the

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AMA's revenues exceeded the costs of its operations, and the surplus was placed in a "rainyday fund, K this does not mean that, when members paid their annual dues, they were not paying for the various benefits of membership in proportion to what those activities cost the association to provide. It is perfectly rational for regulation (t)(4)(iii) to assume that members pay for services in the same proportion as the cost of those services to the organization, even if revenues in fact exceed expenses.
The AMA also suggests that the excess dues placed in the "association equity" account should be likened teo capital contributions. The problem with this argument is that the AMA's members received nothing in return for their "investment" in the AMA olher than the right to receive the benefits of membership in the single annual period for which dues were assessed. In exchange for a capital contribution the contributor receives a future or n:sidual claim, for example, for return of capital as dj,vidends or as the proceeds of liquidation. A capital contribution is in the nature of an investment whereby the investor purchases a continuing interest in an enterprise. [FNI4J In *774 this case there is no evidence that AMA members received anything more for their annual membership fee than an rumual membership; they received no claim of future benefit.
FNI4. See, e.g.. Commissioner v. Fink. 483 U.S. 89. 97. 107 S.Ct. 2729, 2734, 97 L.Ed.2d 74 (1987) (contributors must intend "to protect or increase the value of their investment in the corporation"); In the Matter of Larson. 862 F.2d 112, 117 (7th eir.1988) (capital contribution characterized by fact that investor expects to recoup her investment, hopefully with a profit, in the event the corporation is successful).
We have found only one reported decision which lS even remotely similar to the present case. In Washington Athletic Club v. United States, 614 F.2d 670 (9th Cir.1980), a non-profit membership organization established a K capital improvement nmd" to fmance various construction projects intended to expand the services provided by the club. Members were assessed a surcharge, payable as part of their annual dues, which was placed in the club's improvement fund. The funds contained in the capital improvement account were not used to meet

current operating expenses. Nevertheless the court held that the monies paid by members into the capital improvement fund were current income of the organization, not tax-exempt capital contributions. The court noted that members were required to pay the surcharge in order to enjoy the club's facilities in the current period, and that payment of the surcharge did not confer any continuing benefit on members after the close of the year for which dues were paid. ld. at 675. Nor were a member's contributions to the capital improvement account cumulative; a member who had paid into the capital improvement account for a number of years was in no better position than a member who paid into the account only once. ld. Since members received no benefit through payment of the surcharge other !)lan the rights attendant to an annual membership in the club, the members lacked an "investment motiven in making the paymentS, and therefore treatment of the monies received as a capital contribution was inappropriate. ld.
The reasoning of Washington Athletic Club is persuasive, and directly applicable here. The AMA's members received no continuing benefit from their payments into the association equity account; the sum paid as an annual membership fee entitled the member only to the benefits of membership in the year of payment. Therefore the funds placed in the association equity account were current "income" of the AMA, and should be
allocated as revenue to the AMA's various activities
in accordance with the pro rata allocation method. [FNI5]
FN15. If the AMA were consistent in its view that monies placed in the association equity account should be likened to capital contributions, it would argue that those monies should never be considered income, even when later expended to cure an operating deficit. However. the AMA has conceded that the association equity funds would be treated as income when actually employed to pay current expenses of the organization.
]n essence the AMA's argument concerning membership dues placed in a reserve account presents a question of income realization. The AMA argues, in effect, that it should not be required to recognize income in the current tax year where it has set aside the monies received to meet future expenses. But this is contrary to the general . rule that income must be recognized when the

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recipient has the unrestricted right to use the funds. This is true even though the income recipient may incur future expenses performing the services cUlTently paid for, or may, in the future, be required to refund the money. [FN16] A taxpayer *775 may not defer the recognition of income (or, what is Virtually the same thing, anticipate a future expense), by unilaterally establishing reserve acc:ounts to meet contingent liabilities. [FN 17] Of
course, if "all the events" necessary to establish the taxpayer's fumre liability have already occurred, or the taxpayer has assumed a definite obligation to provid~: services beyond the current tax year, the current deduction of a future expense, or the deferral of income recognition, may be allowed.
[FN 18] But the AMA does not argue that its future Ii abilities were certain in the tax years in question,
nor did the AMA incur any liability to provide s<;!!vices to current members in future years. Therefore there is no justification for allowing the AMA to defer income recognition until the years in which the association equity account was actually drawn down to meet current expenses. [FN19]
FNI6. Under the Mclaim of right" doctrine a taxpayer must recognize as current income money received over Which the taxpayer exercises unrestricted control, unless the taxpayer is "under an unequivocal ... duty to repay it, so that he is really just the custodian of the money." Illinois Power Co. v. Commissioner, 792 F.2d 683, 689 (7th Cir.1986); see also United States v. Lewis, 340 U.S. 590, 71 S.Ct. 522, 95 L.Ed. 560 (1951); North Am. Oil Co. v. Burner, 286 U.S. 417, 424, 52 S.Ct. 613, 615, 76 L.Ed. 1197 (1932)
(Brandeis, J.) CIf a taxpayer receives earnings
under a claim of right and without restriction as to its disposition, he has received income which he is required to [pay tax on}, even though it may still be daimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent. H). Relying on this principle courts have generally held that a public utility must recognize a security deposit as an "advance payment of income," and thus currently taxable, if the utility has the unrestricted use of the money, is not required to pay full market-rate interest on the funds and the deposit is intended to secure the payment of the customer's utility bill, and therefore may never be refunded if the customer's payments are delinquent. Indianapolis Power & Light Co. v. Commissioner, 857 F.2d 1162 (7th Cir.1988); City Gas Co. of Fla. v. Commissioner, 689 F.2d 943 (lith Cir. 1982).

FN17. Brown v. Helvering, 291 U.S. 193, 54 S.Ct. 356, 78 L.Ed. 725 (1934) (Brandeis, J.) (taxpayer must recognize as current income amounts placed in reserve account to meet contingent future liabilities).
FN18. Regarding the current deductibility of an expense to be paid in the future where "all the events" necessary to establish liability have occurred during the tax year, see generally United States v. General Dynamics Corp., 481 U.S. 239, 242-46, !O7 S.Ct. 1732, 1735-37,95 L.Ed.2d 226 (1987), and cases cited therein. Even where money currently paid is intended as a prepayment for services to be performed in future years, the courts have allowed income recognition to be deferred in only limited circumstances. Thus, where future services will be performed at random times over the term of a service contract, rather than equally in each time period, the courts have generally required that the taxpayer recognize current income in the entire amount of the payment .receive:(j. $chlude v, Commissioner, 372 U.S. 128, 83 S.Cc. 601, 9 L.Ed.2d 633 (1963): American Auto. Ass'n v. United States, 367 U.S. 687, 81 S.Ct. 1727, 6 L.Ed.2d 1109 (1961); Automobile Club of Mich. v. Commissioner, 353 U.S. 180, 77 S.Ct. 707, 1 L.Ed.2d 746 (1957); RCA Corp. v. United States, 664 F.2d 881, 886-89 (2d Cir.1981) , cert. denied, 457 U.S. 1133, 102 S.Ct. 2958, 73 L.Ed.2d 1349 (1982). For a general discussion of lhe current tax consequences of contingent future events, and the relationship between tax accounting and generally accepted financial accounting principles, see Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 541- 44, 99 S.Ct. 773,780,58 L.Ed.2d 785 (l979).
FN19. In many respects the IRS's refusal to give effect to the AMA's association equity account as a valid means to defer income recognition is functionally identical to the judgment under section 446 of the Code that a taxpayer's accounting method "does [not] clearly reflect income." The Supreme Court has stressed that the Commissioner has been accorded a great deal of discretion in assessing the accuracy of a taxpayer's method of accounting; the IRS's determination in this regard "should not be interfered with unless clearly unlawful.· Lucas v. American Code Co., 280 U.S. 445,449,50 S.Ct. 202, 203, 74 L.Ed. 538 (1930); see also United States v. Hughes Properties, Inc.• 476 U.S. 593, 603, 106 S.Ct. 2092, 2097, 90 L.Ed.2d 569 (1986); Thor Power Tool Co. v. Commissioner, 439 U.S. 522, 532, 99 S.Ct. 773. 780, 58 L.Ed.2d 785 (1979). This consideration suggests yet another reason why we should be reluctant to invalidate the IRS's determination that

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funds assigned to the association equity account constitute current "income" of the AMA.
v.

[7] The AMA distributes a substantial number of ccpies of both JAMA and AM News free of charge. This "controlled circulation" is specifically directed at physicians who constitute an especially attractive audienc(! for persons likely to advertise in the journals. The parties stip].liated that the sole pu.rpose behind the AMA 's controlled circulation was to appeal to advertisers. The AMA now contends, and the district court found, that the costs of producing the editorial content of the copies of th~ journals sent to control group members should be considered "direct advertising costs,· fully deductible froni advertising revenue. According to the AMA and thedistrict court, an item of expense is "directly connected with" the AMA's advertising activities if the "costs are incurred solely for the purpose of increasing advertising revenues." 668 F.Supp. at 1095 (emphasiS in original).

The IRS's regulations define "direct advertising

costs" to exclude "items of deduction attributable to

the production or distribution of the readership

content of the *776 periodical. ..

Reg.

1..512(a)-I(f)(6)(ii)(a). The IRS argues that these

regulations adopt a purely objective standard for

determining the nature of an expense--if the expense

is related to the production or distribution of the

journal's articles, it is a "readership cost" deductible

from advertising income only if circulation income

is negative; if the expense is proximately related to

production or distribution of advertising it is a

"direct advertising cost" and fully deductible from

advertising revenue. Under the Government's

reading of the regulations the subjective intent of the

publisher in incurring any particular expense is

irrelevant to the categorization of the expense as a

readership or advertising cost. Thus, the expenses

as:;ociated with the production of the readership

content of copies of the AMA's journals distributed

to control group members would be deductible

directly from circulation income only, despite the

fact that the AMA' s motivation in producing and

distributing these copies of the journals was solely to

promote its advertising business.

We believe that the IRS has adopted an overly re~;trictive construction of its regulations. Although

the regulations define readership costs as any cost "attributable to" the production or distribution of articles in a tax- exempt organization's journals, the rules need not be read to limit the deductibility of the cost of producing articles where such costs are motivated solely by an intent to increase advertising revenues. Where the clearly dominant motivation of a given expenditure is to contribute to the taxable, unrelated enterprise, that cost is "directly connected with" the taxable enterprise and therefore deductible in its entirety from the income of the unrelated trade or business.
Under the regulations, an expense :1s "directly connected with" an unrelated trade or business where the item of deduction "ha[s] [a] proximate and primary relationship to the carrying on of that business." Reg. 1.512(a)-1(a). The required connection between an expense and the.unrelated business is similar to the nexus required to support the deduction of a business expense or bad debt. Rensselaer Polytechnic Inst. v. Commissioner, 732 F.2d 1058, 1062 (2d Cir.1984). And the general rule is that an item of expense is deductible as a "business" expense or bad debt if "the dominant motivation" of the taxpayer in incurring the expense was to furrher the particular business enterprise. See United States v. Generes, 405 U.S. 93, 103-05, 92 S.O. 827, 833-34, 31 L.Ed.2d 62 (1972); Whipple v. Commissioner, 373 U.S. 193, 204, 83 S.Ct. 1168, 1175, 10 L.Ed.2d 288 (1963). We see no reason to adopt a different rule in determining whether a tax-exempt organization's expenditures are "direclly cOimected with" an unrelated trade or business. If the dominant motivation of an expelfditure is to further the unrelated business, it should be fully deductible from the income of that business.
The Supreme Court's decision in the American College case provides further support for an intentbased standard for deductibility of publication expenses. The Court held in American College that the determination whether advertising in exempt organization periodicals is in fact a taxable, 'unrelated" business must depend on the facts and circumstances of a particular advertising program. 475 U.S. at 847-50, 106 S.Ct. at 1598-1600. The Court specificaUy rejected the government's argument that advertising was per se "unrelated" to a charity's purposes and therefore always taxable. In similar fashion, we reject the Government's

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advocacy of a per se rule that the cost of producing articles can never be a direct advertising cost, even where it is undisputed that the expense was incurred only to promote a charity's advertising business.
'nlis holding is not inconsistent with our earlier ruling that the IRS's regulations are generally consistent with the governing provisions of the tax code. In that context, we rejected the AMA's broad argument that the editorial content of a journal directly produces advertising revenue simply because of the relationship of advertising and articles in a single publication. However, while the regulations are on sound ground in prohibiting as a general rule the full deductibility of readership e:x:.pens(~s, in *777 certain circumstances such costs are part of the journal's advertising enterprise. This is true where it is absolutely clear that the costs would not have been incurred but for the journal's efforts to promote its advertising business. Where the dominant motivation of a readership expense is demonstrably to increase advertising revenues, that expense is deductible as a "direct advertising cost." We th(:refore affirm the district court's judgment that thf: costs of producing articles in copies of the AMA's journals distributed free of charge as part of the AMA's controlled circulation are fully dl;:c1uctible "direct advertising costs.·
VI.
[8] Finally the AMA argues that membership dues should not be allocated to circulation income where the dues-paying AMA member was entitled to f(!ceive complimentary copies of lAMA and AM News through the AMA's "controlled circulation." The AMA argues, in essence, that these physicians should not be deemed to have paid fot a periodical (through a portion of their membership dues) which they were entitled to receive free of charge. Regulation (f)(3) , which states that dues will be allocated to circulation income if the "right to re:ceive" the periodical "is associated with membership," should be read to embody a "notion of exclusivity." We take it this nnotion of exclusivity" would mean that a portion of dues should be attributed to circulation income only if the m.ember receives the periodical solely because of his membership in the organization. The AMA also relies on Regulation (f)(3)' s statement that, in general, membership receipts allocated to circulation income should approximate the price that would be

paid in a comparable arms-length transaction. Thus, in the AMA's eyes, "the central issue [is] whether a commercial publisher would distribute lAMA and AM News free of charge" to physicians in the control group who are also dues-paying AMA members.
We believe that the AMA fundamentally misstates the issue. If we are to rely on analogies to hypothetical arms-length transactions by taxable publishers, the relevant analogy would be to a commercial publisher who receives paid subscriptions from physicians otherwise entitled to receive the periodical free. The phYSicians had no idea they were entitled to complimentary subscriptions. And our hypothetical publisher ("laughing all the way. to the bank," as the saying goes) retains the money paid by the unknowing physicians, meanwhile purging their names from the controlled circulation list (to insure that the doctors do not receive two copies of the journal). Is the money received by the taxable publisher income? Of course it is. Although our over-generous physicians paid more for the journal than they needed to, this does not change the basic fact--they did pay for the journal, and the publisher was only too happy to keep the unnecessary payment. The situation might be different if the publisher returned the subscription payment to the physicians, explaining that payment was unnecessary"-but there is no indication th<it the AMA informed the relevant group of physicians to put their money to better use.'
Adoption of the AMA' s position would also produce the anomaly that these control group!AMA members would have paid more for the AMA's other services than noncontrol group AMA members. The AMA now argues that these physicians, schooled in the ways of medical journals, must have known that AMA membership was unnecessary if the periodicals were all they wanted, and therefore must have intended their dues payments to apply only to the AMA's oilier activities. However as Judge Shadur observed, "[n]othing [in the record] is offered to support that ipse dixit.· 668 F.Supp. at 1098 n. 22. Since the burden of proof is on the AMA in this refund action, this lack of record evidence is fatal to the AMA's contentions regarding its members' motivations in paying dues. We therefore affirm the district court's conclusion that dues from members who were also in the control group should be allocated to

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circulation income to the same extent as the dues of other AMA members.
*778 VII. For the foregoing reasons the judgment of the district court is

AFFIRMED IN PART AND REVERSED IN PART.
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710 N.E.2d 403 (Cite as: 303 Ill.App.3d 435, 710 N.E.2d 403, 237 IlI.Dec. 773) H

Page 2

Appellate Court of Illinois, First District, Fifth Division.
ILLINOIS HEALTH CARE ASSOCIATION and Heartland Manor Nursing Center, Inc., Plaintiffs-Appellants,
v. Joan WALTERS, as Director of the Department
of Public Aid, Defendant-Appellee.

360k191.10 Most Cited Cases
Whether suit is brought against the State, so that jurisdiction may only be exercised by Court of Claims. does not depend on named parties in suit, but rather, on issues raised and relief sought.
[3] Courts ~472.1 106k472.1 Most Cited Cases

No. 1-97-3820.
Jan. 29, 1999. Rehearing Denied April 8, 1999.
Nursing home trade organization, and individual nursing home, sued Director of the Illinois Department of Public Aid (IDPA), alleging that reimbursement rates for Medicaid patients were inadequate and violated the lllinois Public Aid Code, and also that IDPA's billing system violated the Prompt Payment Act. After finding was directed in favor of defendant, the Appellate Court, 268 I1J.App.3d 988, 206 1ll.Dec. 848,645 N.E.2d 1370, reversed and reIIlanded. On remand, the Circuit Court, Cook County, Edwin M. Berman and Robert V. Boharic, 11., dismissed action for lack of subject matter jurisdiction. Plaintiffs appealed, and the Appellate Court, Theis, J., held that: (1) claim alleging that method of calculating reimbursement rates violated Medicaid reimbursement provisions of Public Aid Code, and seeking to have rates ca.lculated in particular manner using desired method, was action against the State, over which Court of Claims had exclUsive subject matter jurisdiction, and (2) enactment of statutes and regulations mooted injunctive aspects of other counts. and thus brought those counts within jurisdiclion of Court of Claims.
Affirmed.
West Headnotes
(Il Courts ~472.1 106k472.1 Most Cited Cases
If suit is filed against the State, jurisdiction may be exercised only by Court of Claims.
[21 States ~191.10

[3] States ~19I.I0 360k191.1O Most Cited Cases

If suit is brought against State official, but judgment
could operate to control actions of the State or subject it to liability, then suit is in actuality against the State, and only Court of Claims may exercise jurisdiction.

[4] Courts ~472.1 106k472.1 Most Cited Cases

[4] States ~19I.IO

360k191.1O.

Most Cited ,',"-,."'

Cases

Suit which alleges that State officer acts in excess of his or her statutory authority is not suit against the State, and thus is not one over which Court of Claims has exclusive jurisdiction, because it is presumed .that the State does not violate its laws or the Constitution.

[5] Courts ~472.1 106k472.1 Most Cited Cases

[5] States ~I84.2(2) 360kl84.2(2) Most Cited Cases

Action in which nursing home trade organization, and individual nursing home, sued Director of Illinois Department of Public Aid (IDPA), alleging that !DPA' s method of calculating reimbursement rates violated Medicaid reimbursement provisions of Public Aid Code, and seeking to have rates calculated in particular manner using desired method, was in actuality action against the State. over which Court of Claims had exclusive jurisdiction. S.H.A. 305 ILCS 5/5-5.4, 5-5.5.

[6] Courts ~472.1 106k472.1 Most Cited Cases

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(Cite as: 303 Ill.App.3d 435, 710 N.E.2d 403, 237 Ill.Dec. 773)

[6] States ~191.10 360k191.10 Most Cited Cases

[9] States ~184.2(2) 360kl84.2(2) Most Cited Cases

Distinction exists between cases based on a present cIaim for damages, which are considered actions against the State which must be brought in Court of Claims, and those seeking to enjoin State official from taking future action in excess of her delegated authority, which are not considered to be against the State.
[7] Courts ~472.1 I06k472.1 Most Cited Cases
[7] States ~184.2(2) 360k184.2(2) Most Cited Cases
Matter in which nursing home trade organization, arrd individual nursing home, sued Director of Illinois Department of Public Aid (IDPA) , alleging that IDPA had not used most currently available cost reports to set Medicaid reimbursement rates, was action seeking to enforce present claim, and thus was action against the State over which Court of C:I~lirns had exclusive jurisdiction, where change in governing statute had modified requirement and thus mooted any requested injunctive relief, leaving only Claim for declaratory judgment as to whether statute was violated during prior years. S.H.A. 305 ILCS 5f5- 5.4(1).
[8] Courts ~472.1 lOGk472.1 Most Cited Cases
[8] States ~184.2(2) 360k184.2(2) Most Cited Cases
Action in which nursing home trade organization, and individual nursing home, sued Director of Illinois Department of Public Aid (IDPA), aUeging that IDPA had failed to comply with Administrative Procedure Act (APA) when enacting rules such as "Inspection of Care Guidelines," and sought court order mandating such compliance, was action against the State, over which Court of Claims had exclusive jurisdiction, where IDPA had since adopted rules pursuant to statutory procedures, which mooted request for injunctive relief.
[9] Courts ~472.1 106k472.1 Most Cited Cases

Action in which nursing home trade organization, and individual nursing home, sued Director of Illinois Department of Public Aid (ID PA), alleging that IDPA had failed to comply with State Prompt Payment Act, and sought court order mandating such compliance, was action against the State, over which Court of Claims had exclusive jurisdiction, where Act had been amended to eliminate its coverage as to nursing homes, thus mooting any need by IDPA to reform its billing system to conform with procedures mandated by Act. S.H.A.
30 ILCS 540/1. **404 *436 ***774 James J. Casey and Paul C.
Ziebert of Ross & Hardies, Chicago, for Appellants.
James E. Ryan, Attorney General, Barbara Preiner, Solicitor General (James C. O'Connell, David Adler, Special Assistant Attorneys General, of counsel), for Appellee.
Justice THEIS delivered the opinion of the court:
Plaintiffs Illinois Health Care Association (IHCA) and Heartland Manor Nursing Center, Inc. (Heartland), appeal from the circuit court's order dismissing the amended complaint for lack of subject matter jurisdiction. The court found that this action was against the state and, therefore, only the Illinois Court of Claims could exercise *437 juriSdiction. On appeal, plaintiffs argue that the circuit court erred in finding that it lacked jurisdiction because this action was not against the state. For the following reasons, we affirm the judgment of the circuit court.
On September 12, 1989, plaintiffs filed an amended complaint in the circuit court of Cook COUllry against the Director [FNl] of the Illinois Department of Public Aid (IDPA). Plaintiff, IHCA is a professional trade organization which represents several hundred nursing homes in Illinois. Plaintiff Heartland is an Illinois nursing home and a member of the IHCA. In count I, plaintiffs alleged that the IDPA's method of calculating reimbursement rates paid to nursing homes violated the Medicaid reimbursement provisions of the Illinois Public Aid Code. III.Rev.Stat.1985, ch. 23, pars. 5-5.4, 5-5.5. Plaintiffs claimed in count II that the IDPA violated the Illinois Administrative Procedure Act

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(1l1.Rev.Stat.1985, ch. 127, par. 1001 et seq.) because certain regulations were not promulgated in accordance with the prescribed rule-making pJocedures. Plaintiffs challenged IDPA's billing system as violative of "AN ACT to require prompt
payments by the State of Illinois * * * " (the State
Prompt Payment Act) (l1l.Rev.Stat.l985, ch. 127, p.ar. 132.401 et seq.) in count III. All three counts *'~405 ***775 requested declaratory, injunctive, and money damages relief.
FNl. Joan Walters is the successor to Robert W. Wright, the original named defendant in this case.
In light of this case's long procedural history, only the pertinent background information will be narrated. Partial summary judgment in plaintiffs' favor had been granted as to count II, so the case went to trial on counts I and III. After presentation of plaintiffs' case in chief, the court granted defendant's motion pursuant to section 2-1110 of the Code of Civil Procedure. 735 ILCS 512-1110 (West 1992). This finding was reversed on appeal in Illinois Health Care Ass'n v. Wright, 268 Ill.App.3d 988, 999, 206 HI.Dec. 848, 645 N.E.2d 1370, 1376 (1994), with instructions to determine whether the circuit court or the Illinois Court of Claims had subject matter jurisdiction in this case. Upon remand, the circuit court dismissed the case for lack of jurisdiction as to counts I and III. Despite tbe previous decision granting partial summary jtcdgment as to count II, the court subsequently also di.smissed that count for lack of jurisdiction.
[IJ On. appeal, the only issue to be determined is whether this is an action against the state. If a suit is filed against the state, jurisdiction may be exercised only by the Illinois Court of Claims. Senn Pa.rk Nursing Center v. Miller, 104 Hl.2d 169, 186, 83 Ill.Dec. 609, 470 N.E.2d 1029, 1038 (1984). Relying primarily on Senn Park, plaintiffs contend th at their case is *438 not against the state because d(~fendant exceeded her statutory authority . Accordingly, plaintiffs argue, this action is properly hc!ard in the circuit court.
[2][3][4] Whether a suit is brought against the state does not depend on the named parties in the suit but, rather, on the issues raised and the relief sought. Senn Park, 104 H1.2d at 186, 83 Ill.Dec. 609, 470 N.IUd at 1038. If a suit is brought against a state official, yet the judgment could operate to control

the actions of the state or SUbject it to liability, then the suit is, in actuality, against the state. Senn Park, 104 m.2d at 187, 83 Ill.Dec. 609, 470 N.E.2d at 1038. This preserves the doctrine of sovereign immunity by preventing interference of both the state's performance of governmental functions and its control over state funds. Senn Park, 104 m.2d at 188, 83 Ill.Dec. 609, 470 N.E.2d at 1039. On the other hand, where a state officer acts in excess of his or her statutory authority, the suit is not against the state because it is presumed that the state does not violate its laws or the constitution. Senn Park, 104 Bl.2d at 189, 83 Ill. Dec. 609, 470 N.E.2d at 1039.

[5] Plaintiffs rely heavily on Senn Park to support their claims. In Senn·Park, as in the present case, the pirector of the IDPA was the only defendant. This, however, did not preclude the court from engaging in an analysis of the issues raised and the relief sought. The court ultimately determined that the suit was not against the state because it was an action to compel a public official to perform a clear and mandatory duty. Senn Park, 104 m.2d at 189, 83 Ill.Dec. 609, 470 N.E.2d at 1039 ("plaintiffs sought a writ of mandamus against [the Director of the IDPA] personally to direct him to pay them in accordance with the prior approved State plan"). Discretionary authority was not conferred on the Director nor was such discretion necessary in order for him to perform. Consequently, the court did not consider the cause of action to be against the state. Importantly, this conclusion did not frustrate the purposes of sovereign immunity because the state could not claim interference with its functions when the act complained of was unauthorized by statute. Senn Park, 104 Hl.2d at 188, 83 Ill.Dec. 609,470 N.E.2d at 1039.

The issues raised and relief sought in count I of this

case lead us to conclude, unlike Senn Park, that this

count constitutes an action against the state. In

count I, plaintiffs complain that the IDPA violated

sections 5- 5.4(2) through (4) of the Public Aid

Code. Ill. Rev .Stat.l985, ch. 23, pars. 5-5.4(2)

through (4).

This statute prescribes the.

requirements and parameters the IDPAmust folio",

in determining reimbursement rates paid to nursing

homes. The reimbursement rate is based on a

formula that includes three components: nursing

rate, capital rate, and support rate. The nursing

rate component covers the direct costs of caring for

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(Cite as: 303 I1I.App.3d 435.*438. 710 N.E.2d 403. **406. 237 III.Dec. 773.***776)

nursinghome residents. Reimbursement **406 ***776 of nursing care is calculated by assessing
each resident's utilization of *439 services and the
level of care provided. This periodic resident assessment is done by nurse surveyors with the aid of a patient assessment instrument called the "Inspeclion of Care Guidelines." The surveyors determine the level of care required by the residents and which services the residents have used. The services provided by the ~ursing homes have previously been assigned minutes per day, which eventually translate into costs.
Plaintiffs allege that defendant violated the statute when conducting patient assessments by failing to take into account the actual costs as required in sections 5-5.4(2) through (4). In 1985, the IDPA used the patient assessment instrument to determine that the amount of reimbursement would be reduced by approximately $4 per resident. Rather than impose this reduction immediately and all at once, the IDPA instituted a graduated reduction of the reimbursement rate to take place over a period of ye:ars. Plaintiffs argue that this was an arbitrary manipulation of the patient assessment instrument and, therefore, not based on actual costs. Plaintiffs further claim that the assessment instrument failed to ad.equately measure the residents' nursing care needs because the assigned minutes and staffmg levels had not been reviewed periodically and were not based on time and motion studies. Finally, plaintiffs ce'ntend that the capital and support rate components of the reimbursement formula were flawed because two-year-old cost reports were used to set current rates rather than the nmost currently available cost reports." Ill.Rev.Stat.1985, ch. 23, par. 5-5.4(1), To cure these alleged· deficiencies, plaintiffs requested that the court order the IDPA to "[c]onduct a validated time and motion study to determine the actual time required to perform each component of nursing care" and to "[d]esign a payment system that adequately compensates nursing homes in compliance with the payment standards" provided in the statute.
A reading of the statute establishes that the IDPA has substantial discretion in determining a method for calculating reimbursement rates. Specifically, thl~ sections at issue state:
"§ 5-5.4. Standards of Payment--Department of Public Aid. The Department of Public Aid shall develop standards of payment of skilled nursing

and intermediate care services in facilities providing such services under this Article which: *** (2) Shall take into account the actual costs incurred by facilities in providing services for recipients of skilled nursing and intermediate care services under the medical assistance program. (3) Shall take into account the medical and psychosocial characteristics and needs of the patients. *440 (4) Shall take into account the actual costs incurred by facilities in meeting, licensing and certification standards imposed and prescribed by
the State of Illinois * * *. n Ill.Rev.Stat.1985, ch.
23, pars. 5-5.4(2),(3), (4).
Under the express language of the statute, the IDPA has the authority to develop a methodology for formulating reimbursement rates based on certain factors. The IDPA has the power to develop these calculations without interference from other entities or persons. The statute's only constraint on the IDPA in creating a formula is that the IDPA must "take into account" certain factors. However, there
is no restriction as to how or to what extent those
factors must be considered.
Unlike Senn Park. plaintiffs are not asking the IDPA to perform clear, mandatory, and nondiscretionary tasks, but are requesting that the reimbursement rates be calculated in a particular manner using a method they desire. These requests invade the discretionary nature of the statute and frustrate the doctrine of sovereign immunity. Having the IDPA calculate reimbursements rates in a certain way relinquishes control of state operations and funds to plaintiffs. As the court in Brucato v. Edgar. 128 I1l.App.3d 260, 83 Ill.Dec. 489, 470 N.E.2d 615 (1984), so aptly stated:
"[W]hile it is true that an action to restrain a State official from acting in contravention **407 ***777 of the law or exceeding his authority thereunder is not considered to be against the State [citation}, it is well settled that where the action seeks to control the officer's conduct in governmental matters with respect to which he has been granted discretionary authority [citation], and jf a judgment for plaintiff could operate to control the actions of the State or subject it to liability, it will be deemed an action against the State even though it is not a named party therein." Brucato. 128 IlI.App.3d at 264, 83 Ill.Dec. 489, 470 N.E.2d at 618.

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See also Management Ass 'n of Illinois, Inc. v. Board of Regents of Nonhern Illinois University, 248 Ill.App.3d 599, 615, 188 Ill.Dec. 124, 618 N.E.2d 694, 705 (1993). Thus, it is for the Court of Claims to determine whether the methodology created by the IDPA, in its discretion, violated the statute.
[6][7] PlaintiffsI fmal contention in count I is that dl~fendant did not use the "most currently available cost reports" to set reimbursement rates. IIl.Rev.Stat.1985, ch. 23, par. 5-5.4(1). The Court of Claims has jurisdiction over this claim as well. A distinction has been made between cases based on a present claim for damages and those seeking to enjoin a state official from taking future action in excess of her delegated authority. Ellis v. Board of Governors of Slate Colleges*441 & Universities, 102 Ill.2d 387, 395, 80 Ill.Dec. 750, 466 N.E.2d 202, 206 (1984). A case seeking to enforce a present claim must be brought in the Court of Claims.
Effective September 1, 1989, the legislature changed the language on which plaintiffs based their complaint. Prior to the substitution, the statute read, in pertinent part:
"Such rates will be based upon the most currently
available cost reports * * *." Ill.Rev.Sta£.l985,
ch. 23, par. 5-5.4(1).

no future action to be taken on this issue, the issue has become a present claim for damages. Jurisdiction, therefore, is properly exercised by the Court of Claims.
In sum, after examining the issues and relief sought in count I, we conclude that jurisdiction is properly exercised by the Illinois Court of Claims. The fact that plaintiffs sued only the Director in an attempt 10 demonstrate that this suit is not against the state is unpersuasive. Because plaintiffs sought to compel compliance of a discretionary and nornninisterial matter that would result in plaintiffs controlling state funds and interfering with the state's performance of governmental functions, this is a lawsuit against the state. The circuit court was correct in determining that it lacked subject matter jurisdiction.
[8] The Court of Claims has jurisdiction over counts II and III as well. In count II. part of the relief sought was a court order mandating the IDPA's compliance with the Administrative Procedure Act when enacting rules such as "Inspection of Care Guidelines." On August 28, 1991, the IDPA adopted "Inspection of Care Guidelines'sIi rules pursuant to the procedures prescribed by the statute. See 15 Ill. Reg. 13390, 13399. This action cured the alleged violation complained of by plaintiffs and mooted their request for injunctive relief.

The changed language states as follows: H Such rates will be based upon the rates calculated for tlle year beginning July 1, 1990, and for subsequent years thereafter shall be based on the facility cost reports for the facility fiscal year ending at any point in time during the previous calendar year, updated to the midpoint of the rate year. The cost report shall be on file with the Department no later than April 1 of the current rate year. Should the cost report not be on file by April I, the Department shall base the rate on the latest cost report filed by each skilled care facility
and intermediate care facility * * * H
Ill.Rev.Stat.1989, ch. 23, par. 5-5.4(1).
This substitution mooted any requested injunctive relief related to this claim. Consequently, all that re mains is a declaratory judgment as to whether the statute was violated during the years that the "most currently available" language was the law and, if so, whether plaintiffs were damaged. Because there is

[9] *442 As to count III, effective July 24, 1992, the State Prompt Payment Act was amended [Q eliminate its coverage as to nursing homes. 30 ILCS 540/1 (West 1992). This, too, mooted any potential need by the **408 ***778 lDPA to reform its billing system to conform with the procedures mandated in the statute.
Mooting the injunctive aspects of these counts eliminated any need for defendant to take future action if the statutes were found to be violated. However, plaintiffs' claims for declaratory relief and damages, if any I for the period of time when the statutes allegedly were violated were not mooted. The elimination of injunctive relief coupled with the existence of possible money damages transformed the requests for future action into present claims for damages that could subject the state to liability. Thus, these counts also must be heard in the Court of Claims. Ellis, 102 Il1.2d at 395, 80 1lI.Dec. 750, 466 N.E.2d at 206.

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We must emphasize that we express no opinion n:garding whether plaintiffs' alJegations have any merit. Our sole concern in this case was the issue of jurisdiction and we have made no determination a8 to whether defendant violated the statutes in question.

court's dismissal of all counts for Jack of subject

matter jurisdiction.

'

Affirmed.

HARTMAN and GREIMAN, JJ., concur.

For the foregoing reasons, we affirm the circuit

END OF DOCUMENT

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A

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT DUPAGE COUNTY, ILLINOIS

DONNA RADASZEWSKI, Guardian, on behalf )

of Eric Radaszewski,

)

)

Plaintiff,

)

)

vs.

)

)

JACKIE GARNER, Director of Illinois

)

Department of Public Aid,

)

)

Defendant.

)

No. 00 CH 1475 Judge Mehling

DEFENDANT'S OBJECTIONS TO PLAINTIFF'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT AND
TO EXTEND TEMPORARY RESTRAINING ORDER

NOW COMES the Defendant, Jackie Garner, the Director of the Illinois Department of

Publi.c Aid, by and through her attorney, James E. Ryan, Attorney General for the State of Illinois,

and in response to the Plaintiffs Motion for Leave to File Supplementary Complaint and to Extend

Temporary Restraining Order, objects as follows:

1. On December 1, 2000, Plaintifffiled her four-count Complaint for Injunctivt( Relief

with this Court. Plaintiff complained that (1) IDPA's limitation of private duty nursing services

provided to adult Medicaid recipients constituted an invalid rule not adopted in accordance with

notice and comment rulemaking procedures specified in Illinois' Administrative Procedure Act

("APA"), 5 ILCS 100/1-1 et seq. (Count I); (2) IDPA violated Illinois' ~edicaid Plan by failing to

provide Eric with the full amount ofprivate duty nursing described in the Plan (COlUltII); (3) IDPA's

refusal to cover all the private duty nursing sought for Eric violated 89 Illinois Administrative Code

§140.435(b)(2), which provided that "Payment shall be made for ... [pJrivate duty nursing services"

(Count III); and (4) Illinois' Medicaid Plan was a contract betweenIDPA and the federal government

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which rDPA breached by failing to provide the full amount of private duty nursing included in that plan. to Eric, who was a third party beneficiary of that contract (Count IV).
2. Also on December 1,2000, Plaintiff moved for a temporary restraining order and preliminary injunction enjoining IDPA's Director from reducing Eric's private duty nursing services pending the outcome of this case.
3. On December 4,2000, Defendant moved to dismiss this case pursuant to Sections 2619(a)(1), (3), (5) and (9) of the Illinois Code ofCivii Procedure, 735 ILCS 5/2-619(a)(1), (3), (5) and (9) (West 2000).
4. On December 19,2000, this Court (per Byrne, J.), denied Defendant's Motion to Dismiss and granted the Plaintiffs motion for TRO.
5. On September 7, 2001, the Defendant filed a motion to vacate the TRO and dismiss the case as moot. The Defendant's Motion to Vacate Temporary Restraining Order and Dismiss Case as Moot is fully briefed and currently pending before the court.
6. Rather than specifically respond to the Defendant's motion to vacate the TRO and dismiss the case as moot, the Plaintifffiled a motion ofher own-Plaintiffs Motion for Leaveto File Supplemental Complaint and to Extend Temporary Restraining Order. Plaintiffs motion alleges that new claims have arisen requiring a supplemental pleading and which justify an extension of the current TRO. (Pltrs Mot. ~ 4).
7. Plaintiffs proposed Supplemental Complaint for Injunctive Reliefre-alleges the original four-count Complaint for Injunctive Relief and alleges three additional counts: Violation ofthe Illinois Administrative Procedure Act (Count V); Violation ofthe Americans with Disabilities Act (Count VI); and Violation of Section 504 ofthe Rehabilitation Act of 1973.

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8. The Defendant objects to the Plaintiffs request for leave to file the Supplemental

Complaint in the form proposed because (l) it re-alleges the original Complaint for Injunctive Relief

in its entirety, and (2) the original Complaint for Injunctive Reliefis subject to a pending motion to

dismiss as moot, filed by the Defendant on September 7, 2001. Plaintiff should not be allowed to

eircumvent the Defendant's motion by obtaining leave to file a supplemental complaint that re-

alleges the same claims that are now subject to the pending motion to dismiss and vacate. In any

event,judicial economy is not served by allowing the Plaintiffto re-allege four counts that are moot.

9. In the event the Court overrules the Defendant's objection and allows the Plaintiff

to file the proposed Supplemental Complaint for Injunctive Relief or allows the Plaintiff to file a

revised version of her Supplemental Complaint for Injunctive Relief, the Defendant objects to the

Plaintiffs motion to extend the current TRO that is based on the new claims set forth in the proposed

Supplemental Complaint for Injunctive Relief.

10. An applicant is not entitled to a preliminary injunction as a matter ofright. American

Nat'f Bank & Trust Co. v. Carroll, 122 Ill. App. 3d 868, 880,462 N.E.2d 586,595 (1 SI Dist. 1984).
will Rather, a preliminary injunction only be granted where an applicant shows that (1) he ha~ a

clearly ascertainable right needing protection, (2) he will suffer irreparable harm without protection,

(3) he has no adequate remedy at law and (4) he is likely to succeed on the merits. Postma v. Jack

Brown Buick, Inc., 157 Ill. 2d 391, 399, 626 N.E.2d 199, 204 (1993). The party seeking a

preliminary injunction has the burden of proving all these elements by a preponderance of the

evidence. Magee v. Huppin-Ffeck, 279 Ill. App. 3d 81,86,664 N.E.2d 246,250 (lst Dist. 1996).

11. Plaintiffs three new claims do not demonstrate a clearly ascertainable right to extend

the TRO and the Plaintiffhas not demonstrated a likelihood ofsuccess on the merits. A preliminary

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injunction should not be granted where plaintiffs right is doubtful. HartZein v. Illinois Power

Company, 151 Ill. 2d 142, 160,601 N.E.2d 720, 728-29 (1992). In the present case Plaintiff asserts

a right for individuals over age 20 to receive any amount of in-home nursing care that may be

medically necessary. As set forth in the Defendant's motion to vacate the current TRO, the Illinois

Medicaid Plan, and 89 Ill. Admin. Code § 140.435, have been amended to delete or strike references

to private duty nursing and in-home nursing services. Under the State Medicaid Plan and Illinois

Administrative Code, the IDPA only covers private duty nursing or in-home nursing services for

children under 21 years of age who are subject to a Medicaid waiver, as set forth in 89 Ill. Admin.

Code § 140.471, or who are identified as needing the service through an Early and Periodic

Screening Diagnosis and Treatment Program ("EPSDT) screening as described in 89 Ill. Admin.

Code § 140.485. Both the State Medicaid Plan and the Illinois Administrative Code were properly

,'"

amended. (See Defs Reply in Support ofMot. to Vacate TRO and Dismiss Case as Moot, pp. 3-8).

Neither the State Medicaid Plan nor the Illinois Administrative Code contain a clearly ascertainable

right to the reliefsought and the Plaintiffis not likely to succeed with her challenge under the Illinois
Administrative Procedure Act. In fact, Plaintiffs memorandum in support ofextending the "current

TRO acknowledges that the State Medicaid Plan, "by virtue of its recent amendment, does not cover

l.onger term home-based nursing services for adults." (Pltrs Mem. p. 8).

12. The Plaintiffthen turns to federal law-the Americans with Disabilities Act ("ADA") and the Rehabilitation Act-in her attempt to establish a right an~ fashion a remedy. The Plaintiff

bases her ADA and Rehabilitation Act arguments for extending the current TRO on identical

reasoning. (See Pltfs Mem. p. 13).

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13. The Plaintiff is not likely to succeed on the merits of her federal-law claims because

the Supreme Court has held that private party crumot bring an ADA claim against a state defendant.

See Board a/Trustees ofthe University ofAlabama v. Garrett, 531 U.S. 356,121 S. Ct. 955 (2001)

(the ADA does not abrogate a state's Eleventh Amendment immunity from suit); see also Alden v.

Maine, 527 U.S. 706, 119 S. Ct. 2240 (1999) (Congress cannot subject a state to suits in state court

without the state's consent).

14.

Neither the ADA nor the Rehabilitation Act provide Eric with the right to private

duty nursing under the Medicaid program. The Plaintiffs reliance on the Supreme Court's decision

in Olmstead v. L.e., 527 U.S. 581, 119 S. Ct. 2176 (1999) is unavailing. The ADA and

.

.

Rehabilitation Act are anti-discrimination statutes and the very limited integration mandate discerned

in Olmstead does not require a state to provide the disabled with services not otherwise offered to

,I""

anyone. In Olmstead, the Supreme Court cautioned in that "[w]e do not in this opinion hold that

the ADA imposes on the State a 'standard ofcare' for whatever medical services they render, or that

the ADA requires States to 'provide a certain level of benefits to individuals with disabilities. ", Id. at 603, 119 S. Ct. at 2188, fn. 14. Rather, the Court merely held that "States must adher~ to the

ADA's nondiscrimination requirement with regard to the services they in fact provide." Id.

,

'.'"

(emphasis added). In other words, the ADA (and Rehabilitation Act) requires only that a particular

service provided to some not be denied to disabled people. Rodriguez v. City o/New York, 197 F.3d

611,618 (2d Cir. 1999). In Rodriguez, plaintiffs brought a class action challenging New York's

failure to provide safety monitoring to mentally disabled Medicaid recipients requiring assistance

with daily living tasks. Id. at 614. Plaintiffs alleged that without safety monitoring, the personal

care services they received were inadequate to meet their medical needs and to allow them to

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continue living at home. Id. Since nobody was provided with safety monitoring, the court deemed plaintiffs not to be chaI1enging illegal discrimination against the disabled, but rather the substance of the services the state provided. Id. at 618. Olmstead was inapposite because, in Olmstead, the Court addressed only where the state provided treatment, not whether the state was required to provide the treatment in the first place. Id. at 619 (emphasis in original). The Rodriguez court rejected any reading of Olmstead as requiring states to provide disabled individuals with an opportunity to remain out of institutions because Olmstead only held that states cannot discriminate with regard to services they in fact provide. Id. at 619. The ADA does not mandate provision ofnew benefits. Id. Under the ADA, it is.not the court's role to detennine what Medicaid benefits a state must provide. !d. Similarly, the Rehabilitation Act does not curtail the state's discretion to chose the amount, duration and scope of Medicaid coverage. Alexander v. Choate, 469 U.S. 287, 302-07, 105 S. Ct. 712,721-23 (1985).
15. In this case, the Plaintiffis challenging the subs~~~e ?fthe benefits provided to Eric. The Plaintiff readily acknowledges that Illinois does not cover long-tenn home-based private duty nursing for adults. (See Pltfs Mem. p. 8). Like the plaintiffs in Rodriguez, the Plaintiffasserts that Eric has a right to in-home private duty nursing-a benefit that does not exist in the State Medicaid Plan or in the Illinois Administrative Code-because the services are necessary to keep him at home. Because the ADA does not require the lDPA to provide Eric with in-home private duty nursing services, the Plaintiff fails to establish a clearly ascertainable right under the ADA or a likelihood of success on the merits of her ADA claim. Consequently, Plaintiffs motion to extend the current TRO shouldbe denied.

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16. Allegations of irreparable harm and lack of adequate remedy at law, without more,

are not sufficient to grant a TRO. Defendant does not minimize the seriousness of Eric's medical

condition, but the potential for irreparable harm does not require this Court to grant Plaintiff

preliminary injunctive relief. Since preliminary injunctions are not granted as a matter of right, a

plaintiff, in order to secure that relief, must establish both irreparable injury and a likelihood of succ(~ss on the merits. Mingare v. DeVito, 67 IIl.App.3d 371,373,385 N.E.2d 20,21 (1st Dist.

1978). Where, as here, a plaintiffhas failed to demonstrate that she has no clearly ascertainable right ... ~
and cannot establish a likelihood ofsuccess on the merits ofher three newiy-pled claims, preliminary

inj unctive reliefmust be denied, regardless ofwhether the failure to obtain an inj unction might result

in irreparable harm or whether her remedies at law are allegedly inadequate.

WHEREFORE, for the reasons stated above, the Defendant respectfully requests this

,'*"

honorable Court (1) deny the Plaintiffs motion for leave to file the Supplemental Complaint for

Injunctive Relief, and (2) deny the Plaintiffs motion to extend the current IRO.

Respectfully submitted,

JAMES C. O'CONNELL
DAVroADLER
CHRISTOPHER S. GANGE Assistant Attorneys General 160 North LaSalle Street Suite N-l 000·· Chicago, Illinois 60601 (312) 793-2380 Attomey No. 400028

JAMES E. RYAN
Attorney General
State of Illino~
By: ~0"L
Assistant Attorney General

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n '" OROER____________________________________________· __________~~~~~~

STATIE OF ILLINOIS

UNITED STATES OF AMERICA

COUNTY OF DU PAGE

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT

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CASE NUMBER

ORDER

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ENTER: __________________________--

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EXHIBIT
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JOEL A. KAGANN, CLERK OF THE 18TH JUDICIAL CIRCUIT COURT © s Pg: 1 of 1

WHEATON, ILLINOIS 60189-0707

Case 1:01 ..cv-09551 Document 3 Filed 01/30/2002 Page 74 of 134

IN THE CIRCUIT COURT OF THE EICJIITEENTH JUDICIAL CIRCUrT DUPAGE COlJNTY, 11.UNOIS

DONNA RADASZEWSKI, Guardian, on behalf )

of Eric Radaszewski,

)

)

Plaintiff,

)

)

vs.

)

)

JACKIE GARNER, Director of Illinois Department )

of Public Aid,

)

)

Defendant.

)

No. 00 CH 1475 Judge Mehling

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DEFENDANT'S ANSWER TO PLAINTIFF'S
SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE RELlEF

Defendant JACKIE GARNER, Director of the Illinois Department of Public Aid, submits

this Answerto Plaintiff's Supplemental Complaint for Injunctive Relief.

FIRST DEFENSE

Counts I, II, III and IV of Plaintiffs Supplemental Complaint for Injunctive Relief are

moot.

SECOND DEFENSE

Count VI of Plaintiffs Supplemental Complaint for Injunctive Relief is barred by the

Eleventh Amendment to the United States Constitution.

THIRD DEFENSE

Plaintiff canot bring Count VI of her Supplemental Complaint for Injunctive Relief

against the Director of the Hlinois Department of Public Aid.

FOURTH DEFENSE

I"

Defendant answers the numbered paragraphs of Plaintiffs Supplemental Com laint for

I r Injunctive Relief as follows:

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COUNT I: VIOLATION OF ILLINOIS ADMINISTRATIVE PROCEDURE ACT 5 II.CS IOOIl et seq.

1. Plaintiff Donna Radaslcwski is the guardian for her disabled son, Eric Radaszewskl She brings this action in her capacity as Eric 's guardian on his behalf.

ANSWER: Defendant admits the allegations contained in ~!.

2. Plaintiff and Eric reside in Du Page County, fllinois.

ANSWER: Defendant admits the allegations contained in ~2.

3. Defendant Ann Patla is the Director of the Illinois Department of Public Aid (lOrA). ANSWER: Defendant admits that Ann Patla was [O~A's Director at the time this case

was initially brought and avers that Jackie Garner is [oPA's current Director.

4. [oPA is the state agency charged with the administration of the Medicaid program in Illinois.
ANSWER: Defendant admits the allegations contained in -J4.

5. Eric, born August 5, 1973, is 21 years old.

ANSWER: Defendant deny that Eric was born on August 5, 1973 and that he is presently

21 years old. Defendants aver that Eric was born on August 5, 1979 and is currently 22 years

old.

6. Eric is disabled and receives disability benefits under the federal Supplemental Security Income program. He is eligible for Medicaid.
ANSWER: Defendant admits the allegations contained in 16.

7. On February 12, 1992. Eric was diagnosed with med.ulloblastoma, a brain cancer.

ANSWER: Defendant admits the allegations contained in ~7.

8. On December 24, 1993. Eric suffered a mid-brain stroke after he had undergone surgery, radiation and chemotherapy as treatment for the cancer.

ANSWER: Defendant admits the allegations contained in ~8.
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9. The disease. stroke and the subsequent treatment have left Eric with a very low level of bt)dy and mental functioning. He is highly medically fragile.

ANSWER: Defendant admits the allegations contained in ~9.

10. It is the opinion of Eric's physician lhat Eric requires private duty nursing services of a registered nurse, one-on·one, 24 hours per day in order to survive.

ANSWER: Defendant admits that Eric's physician recommends that he receive 24 hours

per day of registered nursing care, but is without sufficient knowledge to form a belief as to the

correctness of this recommendation.

II. For the past five years, Eric received private duty nursing care at home by registered nurses 16 hours per day, with 336 additional hours per year of services from registered nurses to provide Eric's parents respite. The balance orhis 24 hour per day care came from his parents, who were specially trained to provide the necessary services to avoid medical crisis for Eric.

ANSWER: Defendant admits that, from 1995 to 2000, Eric received 16 hours per day of

t~

private duty nursing care at home by registered nurses, with 336 additional hours per year of

respite care. Defendant is without sufficient knowledge to admit or deny that the balance of

Eric's care was provided by his parents or that they were specially trained.

12. This care was paid for by Medicaid.

ANSWER: Defendant admits the care described in ~ll, other than any provided by

Eric's parents, was paid for by Medicaid.

13. The Medicaid program is a joint federal and state funded program enacted to provide
necessary medical assistance to needy disabled persons and families with dependent children, whose income and resources are insufficient to meet the cost of care'~' 42 U.S.C. §1396,305 ILeS 5/5-1.

ANSWER: Defendant admits the allegations contained in ~13.

14. Each State participating in the Medicaid program must submit a Medicaid plan to the
Secretary of Health and Human Services (HHS) for approval. 42 U.S.C. §1396.

ANSWER: Defendant admits the allegations contained in ~14.
.).

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15. The plan must specl fy lhe amount, duration. and scope of each service lhal lhe state provides in its Medicaid program. 42 U.s.c. §1396a(a)(lO), 42 U.S.c. §l J9Gd(a). 42 eFR §440.230(a).

ANSWER: Defendanl admits the allegations contained in ~ IS.

16. Private duty nursing is a service that states may choose to include in their Medicaid plans. 42 U.s.c. § I 396d(a)(8), 42 U.S.c. § \396a(a)(J O)(C), 42 CfR §§440.225, 440.80.

ANSWER: Defendant admits the allegations contained in ~ 16.

17. Federal regulations define "private duty nursing" as nursing services provided to
persons who require more individual and continuous care than is available from a visiting nurse or than is routinely provided by the nursing staff of a hospital or nursing facility. 42 eFR §440.80. Under the regulation, the state has the option to provide private duty nursing services in the recipient's home, at a hospital or at a skilled nursing facility. 42 CFR §440.80(c)

ANS\VER: .Defendant admits the allegations contained in ~17.

18. In addition to providing the Medicaid coverage described in their Medicaid plans,

States have the option of requesting approval from HHS to provide home and community based

I~

care services for persons who would otherwise require institutional care that would be paid for by

Medicaid. These services are provided under a range of Medicaid waiver programs that are

authorized under 42 U.S.c. §§ 1396a(a)(1O)(A)(ii)(VI), 1396n(b)-(e). Under this waiver

authority, the Secretary of HHS may grant waivers of certain otherwise applicable Medicaid

requirements, including for example financial eligibility requirements and service limitations. Id.

ANSWER: Defendant admits the allegations contained in '18.

19. Illinois has submitted to HHS and obtained federal approval of its Medicaid plan.

ANSWER: Defendant admits the allegations contained in ~ 19.

20. The Illinois Medicaid plan includes broad coverage for private duty nursing, with the sole conditions that the private duty nursing is recommended by a physician, that prior approval from the state agency is sought, and that the nursing care not be provided by a relati ve. The plan includes no limitations as to cost or as to where these services must be provided. The sections of the Illinois Medicaid Plan relating to private duty nursing services, Exhibit A, are attached to and made a part of this Complaint.

ANSWER: Defendants admits that the sections of Illinois' prior Medicaid Plan relating

to private duty nursing services are attached to Plaintiffs initial Complaint for Injunctive Relief.

Defendant denies each and every other allegation contained in ~20. Defendant avers that a

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Medicaid Plan amendment. deletIng ,Ill rctCrcnces to private duty nursing services. was approved

by HHS on February 2,200 I, with a retroactive effective dale of January 1,2001.

21. Illinois has also expanded its Medicaid program by including several home and community based care Medicaid waiver programs approved by lhe Secretary of [·U-{S.

ANSWER: Defendant admits Ihe allegations contained in ~21.

22. Under the Home Services wai vcr program ("HSP"), Illinois provides services that arc not otherwise covered under the Medicaid program, including personal care and homemaker services, to enable disabled adults to remain in their home. The cost of services which may be provided to recipients under this waiver program is limited, however, to the average Medicaid cost of care for persons in skilled nursing facilities.

ANSWER: Defendant admits the allegations contained in ~22.

23. There is no ~23 in Plaintiffs Complaint for Injunctive Relief.

24. Despite the language of the Illinois Medicaid plan covering private duty nursing with
only the limitations described in paragraph 20, above, it is Defendant's unwritten policy to
impose additional restrictions that eliminate private duty nursing for persons aged 21 or older and instead provide sllchservicj!sonly through th~ HSP. its limited andcommunityb~ed Medicaid waiver program.

ANSWER: Defendant denies each and every allegation contained in 124.

25. As Eric's 21st birthday approached, state officials advised Eric's mother to contact the Office of Rehabilitation Services ("DRS") to apply for the HSP as the sale avenue to obtain continued private duty nursing services for Eric.

ANSWER: Defendant admits that state officials contacted Plaintiff regarding

transitioning Eric to the HSP program. but avers that such contact first occurred in 1997, after

Eric became 18.

26. On February 18, 2000, DRS issued a decision limiting Eric' s eligibility for HS P services Lo a "service cost maximum" of $4,593 per month.

ANSWER: Defendant admits the allegations contained in 126.

27. This service cost maximum amount reduced funding for Eric's private duty nursing services to the equivalent of five hours per day.

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ANSWER: Defendanl is without sufficient knowledge to admit or deny the allegations

contained in ~27.

28. Plaintiff filed an administrative appeal on the ORS decision limiting Eric's services under the HSP to $4,593 per month, and an administrative hearing was held on July 25.2000.

ANSWER: Defendant admits the allegations contained in ~28.

29. At this hearing. Eric's treating physician. Janina Badowska, M.D. testified that in her medical opinion, Eric requires 24 hour one-on-one skilled nursing care from registered nurses and that the level of care offered by the ORS service cost maximum would leave Eric at great medical risk. She further testified that Eric's needs could not be met by staffing levels at a skilled nursing facility.

ANSWER: Defendant admits that Eric's treating physician testified that Eric needs

substantial one on one nursing care and urged that he be provided the funds to support 24 hours

per day of skilled nursing care. Defendant admits that Dr. Badowska testified [hat placing Eric in

a nursing home would seriously medically compromise him. Defendant is without sufficient

information to to admit or deny the remaining allegations contained in ~29.

30. On August 18,2000, Defendant Ann Patla, as Director oflDPA,js5ued an administrative decision, affirming the DRS decision limiting funding of Eric's services under the Home Services Program to $4,593 per month, despite a finding of fact in the decision that placing Eric in a nursing facility would place Eric at risk of danger.

ANSWER: Defendant admits that, on August 18,2000, Defendant issued an IDPA final

administrative decision affirming the ORS determination to limit funding of Eric's HSP services

to $4,593 per month. Defendant admits that the Hearing Officer pres,iding over the underlying

administrative proceeding made a factual finding that Eric's parents submitted uncontradicted

evidence that Eric would be at risk of danger if he should be placed in a nursing home.

31. Under the Illinois Administrative Procedure Act,S ILCS 1001 t -70, each agency

statement of general applicability that implements, applies, interprets, or prescribes law or policy

1'''\

is a "rule" within the meaning of the Act.

.

ANSWER: Defenqant avers that this statute speaks for itself and that Plaintiffhas

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omitted malerial portions thereof.

32. Defendant's Ullwritten policy limiling Medicaid coverage for private dUly nursing services for adults to the services provided under the HSP waiver program is a rule of bClH.:ral applicability within the meaning of 5 IlLS 10011-70.

ANSWER: Defendalll denies each and every allegation contained in ~p2.

33. Under 5 [LCS 100/5-40, state agencies must adopt rules pursuant 10 the llotice and comment rulemaking procedure specified in the provision.

ANSWER: Defendant avers that this statute speaks for itself and that PlainlilThas

omitted material portions of this particular statutory provision and other provisions of the

Administrative Procedurc Act.

34. Because Defendant has not followed the notice and comment rule-making procedure set out in 5lLCS 100/5-40 for the unwrittem policy limiting Medicaid coverage for private duty nursing services for adults to the services provided under the HSP waiver program, the policy is invalid under the Illinois Administrative Procedure Act.

ANSWER: Defendant denies each and every alIegation contained in ~34. Funhermore,

Defendant avers that, effecli ve September 1> 200 I> IDPA amended 89 Illinois Administrati ve

Code §§ 140.435 and 140.436 to strike all text relating to Medicaid coverage of private duty

nursing services, thereby clarifying that payment is made for this service only for children under

21 years of age who are covered under a program waiver or are identified as needing this service

through a s~reeningunder the Early (indPeriodic Sc:reening, Diagnosis and Trealment

("EPSDT") Program.

35. Eric will suffer irreparable injury if Defendant is not enjoined from applying this invalid rule to deny Eric the full amount and scope of private duty nursing services described in the Illinois Medicaid plan.

ANSWER: Defendanl denies each and every allegation contained in ~35.

36. Eric has no adequate remedy at law.

ANSWER: Defendant denies each and every allegation contained in ~36·1J_ _ _ _ _ _ _•

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37. Ene is indigent and unable to post bond.

ANSWER Defendant is without sufficient knowledge to adml[ or deny the allegations

contained in "37.

COUNT II: VIOLATION OF THE MEDICAID PLAN

I -30. Plaintiff fe-alleges paragraphs one through thirty of Count [ as paragraphs one through thirty of Count II.

ANSWER: Defendant adopts her answers to '[11-30 of Count i as her answers to 11111-30

afCount 1I of Plaintiffs Supplemental Complaint for Injunctive Relief.

3\. The !lIinois Public aid Code directs lOPA to es(ablish standards and rules to determine the amount and nature of medical services to be included in the Medicaid program, including private duty nursing services. 305 ILCS 5/5-4, 5-5 .

. ANSWER: Defendant avers that 305 ILCS 5/5-4 and 5-5 speak for themselves.

32. The Illinois Medicaid plan sets out such standards and rules.

ANSWER: Defendant denies each and every allegation contained in 132.

33. Defendant has violated the Illinois Medicaid plan by failing to provide Eric the full

a.rr1Qunt, duration and scope~of private duty nursing services set out in the lIIinois Medicaid plan.

. .

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. '. ..

.

ANSWER: Defendant denies each and every allegation contained in ~33.

34. Eric will suffer irreparable injury if Defendant is not enjoined from failing to afford Eric the full amount and scope of private duty nursing services described in the Illinois Medicaid plan.

ANSWER: Defendant denies each and every allegation contained in ~34.

35. Eric has no adequate renedy at law.

ANSWER: Defendant denies each and every allegation contained in ~35.

36. Eric is indigent and unable to post bond.

ANSWER: Defendant is without sufficient information to admit or deny the allegations

"

contained in '136.

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Case 1:01-cv-09551 Document 3 Filed 01/30/2002 Page 82 of 134

COUNT III: VIOLA nON OF 89 ILL.ADM CODE § 140.435

\-30. Plaintiff re-alleges paragraphs one through thirty of Count I as paragraphs one through thirty of Count Ill.

ANSWER: Defendant adopts her answers to ~~1-30 of Count I as her answers to ~~1-30

ofCountl!! ofPlaintifCs Supplemental Complaint for Injunctive Relief.

J I. The Illinois Public Aid Code directs IOPA to establish standards and rules to determine (he amount and nature of medical services to be included in the Medicaid program, including private duty nursing services. 305 ILCS 5/5-4, 5-5.

ANSWER: Defendant avers that 305 ILCS 5/5-4 and 5-5 speak for themselves.

32. The Department's rule at 89 Ill. Adm. Code § 140.435(8)(2) provides that Medicaid payment "shall be made" for private duty nursing services.

ANSWER: Defendant denies that 89 IILAdm. Code § 140.435(b)(2) currently provides

that payment "shall be made" for private duty nursing services. Defendant avers that, effective

September I, 2001, lOPA amended 89 Illinois Administrati ve Code §140.435 to strike all text

relating to payment for private duty nursing services.

33. Defendant's refusal to cover medically necessary private duty nursing services for Eric violates 89 1l1.Adm. Code § 140.435(b)(2).

ANSWER: Defendant denies each and every allegation contained in ~33.

34. Eric has no adequate renedy at Jaw_

ANSWER: Defendant denies each and every allegation contained in ~J4.

35. Eric is indigent and unable to post bond.

ANS WER: Defendant is without sufficient information to admit or deny the allegations

contained in 135

COUNT [V: BREACH OF CONTRACT

1-30. Plaintiff re-a\leges paragraphs one through thirty of Counl I as paragraphs one

through thirty of Count IV.

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ANS WER: Defendant adopts her answers to ~~ \- 30 of Count [ as her answers to ~~i I ·30

afCount IV of Plaintiffs Supplcmcntal Complaint for Injunctive Relief.

31. The Illinois medicaid plan is a contract between the lllinois Department of PublIc
Aid and the federal governmenl.

ANSWER: Defendant denies each and every allegation contained in ~3 L

32. Medicaid recipients, including Eric, are the clearly intended and direct beneficiaries of this contract

ANSWER: Defendant denies each and every allegation contained in ~J2.
33. By failing to afford Eric the full amount, duration, and scope of private duty nursing included in the lIlinois Medicaid Plan, defendant is in breach of contract

ANSWER: Defendant denies each and every allegation contained in '33.

34. Defendant's decision to restrict Eric's nursing services to the cost maximum of the

home Services Program, thereby denying him the benefit of the private duty nursing services

described in the Illinois Medicaid plan, has injured Eric.

...

ANSWER: Defendant denies each and every allegation contained in ~34.

35. Eric has no adequate remedy at law and requires specific performance of the terms of

the Medicaid plan in order to obtain relief.

--

ANSWER: Defendant denies each and every allegation contained in ~35.

COUNT V: VIOLATION OF THE ILLINOIS ADMfNISTRATfVE PROCEDURE ACT

1-24. Plaintiff realleges paragraphs one and two, four, six through eighteen, twenty-one and twenty-two"and twenty-five through thirty of Count I as paragraphs one through twenty-lour
of Count V.

ANSWER: Defendant adopts her answers to ~~l, 2,4,6-18,21,22 and 25-30 of Count [

as her answers to ~~ 1-24 of Count V.

25. In March 2001 Jackie Gamer replaced defendant Arm Patla as Director of the Illinois

Department of PublicAid ~ndendorses all of the actions taken by Ms. Patla relevant to this

lawsuit.

..

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ANSWER: Defendant admits the allegations contained in ~25. -10-

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26. Eric Radaszcwski was born on August S. 1979

!

ANSWER: Defendant admits the allegations contained in ~26.

27. In Augus(. 2000. when Eric turned 21 years old. Winois' Medicaid plan. as submitted
to HI·iS. included coverage for privale duty nursing, with the sole conditions that private duty
nursing services be recommended by a physician, that prior approval from the State agency be sought, and that thc nursing care not be provided by a relative. t\ copy of that provisIon as It existed at thaI timc is attached to this Complaint as Exhibit A.

ANSWER: Defendant admits that Illinois' Medicaid Plan included coverage for private

duty nursing in August, 2000, but denies that the conditions stated by Plaintiffin ~27 were the

sale conditions on such coverage. Defendant specifically denies that the Medicaid Plan eVer

provided coverage of private duty nursing for individuals 21 years of age or older- Defendant

also denies that a copy of the Plan provision regarding private duty nursing is attached as an

exhibit to Plaintiffs Supplemental Complaint for Injunctive Relief.

28. Despite the language of the Uinois State plan covering private duty nursing with the sale limitations described in paragraph 28 [sic}, above, it was the unwritten policy of the State to impose additional restrictions that eliminate private duty nursing for persons aged 21 or older and instead provide such services only through the HSP, its limited and comunity based Medicaid wai ver program.

ANSWER: Defendant admits that it was State policy to provide in-home nursing for

persons aged 21 or older only through the HSP program, but deny that this policy was unwriten,

that this policy violated Illinois' Medicaid Plan and that the Medicaid Plan contained only the

coverage limitations described by Plaintiff in 127.

29. On September I, 2000, plaintiff brought an action in the United States District Court for the Northern District oflllioois against Defendant Patia, seeking to enjoin defendant's reduction of Eric's nursing services. Plaintiff claimed that defendant's actions, deviating from its Medicaid plan, violated the federal Medicaid statute, its implementing regulations and the requirements of due process.

ANSWER: D.efend. ant denies that Director P. atla's actions deviated from Illinois'

Medicaid Plan or vio/a[ed any legal requirements. Defendant admits the remaining allegations

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contained in ~29.
30. The District COU[( denied plaintiffs motion for a preliminary injunction, and plaintiff appealed that inlerioClllory order.

ANSWER: Defendant admits rhe allegations contained in ~}O.

31. On December I, 2000, plaintiff filed the present case, bringing claims founded on state law that could not be included in the federal law suit. Plaintiffs claims, set out as counts 1[V, included that defendant's unwritten policy to deny Eric private duty nursing violated the notice and comment requirements of the (llinois Administrative Procedure Act, 5 ILCS 10011 et seq., the requirements set out in its Medicaid plan, and 89 lIl.Adm.Code 140.435(b). and deprived Eric of his rights as a third party beneficiary of the contract between the department and the federal govemment.

ANSWER: Defendant denies that Eric was denied private duty nursing pursuant to an

unwritten policy, that that denial violated any legal requirements or that Eric was deprived ofaoy

contractual rights. Defendant admits the remaining allegations contained in 13 I.

32. On December 19, 200 I? this Court entered an Order denying Defendant's Motion to Dismiss and issued a Temporary Restraining Order enjoining Defendant from reducing Eric's nursing services pending further order.

ANSWER: Defendant admits the allegations contained in ~32.

33. On January 3, 2000,without prior notice to either this Court or to the Seventh Circuit Court of Appeals, the plaintiff or the public, the department submitted to HHS an amendment to the lIlinois Medicaid plan, deleting coverage for private duty nursing services for adults. On February 2, 2001, HHS approved the amendment.

ANSWER: Defendant denies that Illinois' Medicaid Plan ever covered private duty

nursing services for adults. Defendant avers that the Plan amendment entirely removed private

duty nursing from the Plan by deleting all provisions and language regarding this service.

Defendant further avers that prior notice was not required in order to obtain HHS approval of this

amendment. Defendant admits the remaining allegations contained in ~33.

34. On March 16. 200t. lOPA published in the Ilinois Register a proposed rule to amend
89 [II.Adm.Code § 140.4 35 and § 140.436 to delete Medicaid coverage for private duty nursing
servIces. The "Complete Description of the Subjects and Issues Involved" section of the notice

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of rulcmaking stated that the changes "arc being made as clarifications.... "

ANSWER: Defendant admits the allegations contained in ~34, but avers that Plainriifs

recitation of the content of the "Complete Description of of [he Subjects and Issues Invol ved"

section of the notice of rulemaking is incomplete and that material portions have been omitted.

35. On May 23, 200 I, pursuant to public request, the Department conducted a hearing on the proposed rules.

ANSWER: Defendant admits the allegations contained in ~35.

36. On July 23, 2001, the Department submitted to the Joint Committee on Administrative Rules ("JeAR") its Second Notice of Proposed Rulemaking for the proposed amendment.

ANSWER: Defendant admits the allegations contained in ~36.

37. [n the section of the Second Notice describing the public comments objecting to the deletion of Medicaid coverage for private duty nursing services for adults, the Department claimed that "the comments received were not related to the rules, or their intended purpose or potential effect" and that the "proposed amendments do not change the Department's policy on coverage for home health services for adults." Exhibit B, Second Notice of Proposed Rulemaking, page 8.

ANSWER: Defendant denies that lOPA's rules ever provided Medicaid coverage of

private duty nursing for adults. Defendant avers that [OPA' s rules were amended to clarify that

payment was provided for private duty nursing only for children under 21 years of age who are

covered under a Medicaid waiver or are identified as needing the service through an EPSDT

screening. Defendant admits that, in response to a comment, [OPA stated in the Second Notice

that "The proposed amendments do not change the Department's policy on coverage for home

health services for adults," but avers that Plaintiff has omitted material portions of lOP A .s

response. Defendant admits that, in its Second Notice, lDPA generally stated that some of the

comments received "are not related to these rules or the intended purpose and potential effect of

the proposed amendments," but denies that such a response was made to any particular comment

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,,,

objecting to a supposed delellon of medicaid coverage of private duty nursing for adults.

3S. On August 7. 200 I, leAR reviewed the rules without objection.
ANSWER: Defendant admits the allegations contained in '138.

39, On September I, 200 I, the Department filed a certified copy of the amended rules with the office of the Secretary of State.

ANSWER: Defendant admits the allegations contained in ~39.

40. Under the Illinois Administrative Procedure Act, 5 !LCS 10011-70 each agency statement of general applicability that implements, applies, interprets, or prescribes law or policy is a rule within the meaning of the Act.

ANSWER: Defendant avers that this statute speaks for itself and that Plaintiff has omitted

portions thereof.

41.Under 5 ILCS 100/5-40, state agencies must adopt rules pursuant to the notice and comment rule making procedure specified in the provision. Among these requirel,11ents, an agency must include in the first notice of rule making a "complete description of the subjects and issues involved." 5 ILCS 100/S-40(b)(3). During the notice period, the agency must accept from interested persons data. views, arguments or comments and it must "consider all submissions received." 5 ILCS lOO/S-40(b).

ANSWER: Defendant avers that this statute speaks for itself and that-Plaintiff has

omitted portions thereof.

42. In promulgating the amendments to 89 III.Adm.Code §140.43 5 and §140.436,
defendant has not followed the letter or the spirit of the requirements set out in 5 ILCS 100/540(b). The Department refused to consider the comments of the public on the decision to delete Medicaid coverage for private duty nursing services, having deemed the comments not pertinent to the purpose of the rule making. The Department's Notice of Propos(!d Rule making did not include a complete description of the subjects and issues involved, failing to disclose that it was implementing a policy to delete Medicaid coverage for private duty nursing services for adults or the rcasons"for not covering those services.
ANSWER: Defendant denies each and every allegation contained in ~42.

43. Eric will suffer irreparable injury if Defendant is no! enjoined from applying its invalid rules to deny Eric the full amount and scope of private duty nursing services he has been, receiving under the fanner Illinois Medicaid plan.

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ANSWER: Defendant denies each and every allegation contained in ~43.

44. Eric has no adequate remedy at law.

ANSWER: Defendant denies each and every allegation contained in ~44.

45. Eric is indigent and unable to post bond.

ANSWER: Defendant is without sufficient knowledge to admit or deny the allegatlollS

contained in ~45.

COUNT V[: VIOLATION OF THE AMERICANS WlTH DlSABILITIES ACT: 42 USC §12132 and 28 CFR §3S.130

1-39. Plaintiff re-alleges paragraphs one through thirty-nine of Count V as paragraphs one through thirty-nine of Count VI.

ANSWER: Defendant adopts her answers to ~~1-39 of Count V as her answers to ~~1-39

of Count VI.

I~

40. Under the Department's policy, Eric may receive Medicaid payment for necessary

long term care services in institutions, meaning skilled nursing facilities and hospitals, but not at

home.

ANSWER: Defendant admits that Eric may receive Medicaid paymenLfor necessary long

tenu care services in skilled nursing facilities and hospitals, but denies that Eric may not receive

payment for long term care services at home. Defendant avers that lDPA has determined that

Eric is eligible to receive $4,593 per month under its Medicaid Home Services Waiver Program.

41. In-home nursing care is the most integrated setting for services for Eric, and is at least as cost-effective as trcatmcnt he would receive in an institution.

ANSWER: Defendant denies each and every allegation contained in ~41.

42. Under Title II of the Americans with Disabilities Act, 42 USC §12132 and irs implementing regulations at 28 eFR ~35.130, public entities must provide services to persons with disabilities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.

ANSWER: Defendant averS that the Americans with Disabilities Act ("ADA") and its

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Case 1:01-cv-09551 Document 3 Filed 01/30/2002 Page 89 of 134

,I,

implenting regulations speak for themselves and that Plaintiff has omitted relevant portions

thereof.

43. Eric is a qualified individual with a disability within the meaning of Title II of the
ADA.

ANSWER: Defendant denies each and every allegation contamed ill ,/43,

44. The III inois Department of Public Aid of which defendant Patla IS Director is a "public entity" within the meaning of Title [I of the ADA.

ANSWER: Defendant denies thatAnn Patla is currently Director of the Illinois

Department of Public Aid. Defendant admits the remaing allegations contained in ~44.

45. The Department's failure to provide Eric Medicaid services in his home,the most integrated setting for receipt of those services, violates the community integration requirements of Title 11 of the Americans with Disabilities Act, 42 USC §12132 and its implementing regulation 28 CFR §3S.130.

ANSWER: Defendant denies each and every allegation contained in ~45.

46. Eric will suffer irreparable injury if Defendant is not enjoined from reducing his Medicaid covered nursing services at home forcing him into an institution where his health will be in imminent danger and he will be segregated from his family and the larger community.

ANS WE R: De fendant denies each and every a !legation contai ned in ~46.

47. Eric has no adequate remedy at law.

ANSWER: Defendant denies each and every allegation contained in ~47.

48. Eric is indigent and unable to post bond.

ANSWER: Defendant is without sufficient knowledge to admit or deny the allegations

contained in ~48.

COUNT VU: VlOLATION OF SECTlON 504 OF REHABlUTATlON
ACT OF 1973: 29 USC §794 and 28 CFR 41.51 (d)

\-41. Plaintiff re-alleges paragraphs one through fotty-one of Count VI as paragraphs one

through fOrly-one of Count VIl. ......... , ..... . . c.' ...• '. '",'.

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ANSWER: Defendant adopts her answers to 1l~ \-4\ of Count V as her answers to 'I~ 1-41

of Count VI.

42. Section 504 of the Rehabilitation Act of 1973 ("Section 504") prohibits discrimination against people with disabilities on the basis of their disabilities in programs and services that receive federal financial assistance. 29 USC §794.

ANSWER: Defendant avers that the Rehabilitation Act speaks for itsclfand lilal Plaimiff

has omitted relevant portions thereof.

43. Section 504 requires that services must be provided in the most integrated setting appropriate to the needs of individuals with disabilities. 28 eFR §41.51(d).

ANSWER: Defendant avers that the Rehabilitation Act and its implenting regulations

speak for themselves and that Plaintiff has omitted relevant portions thereof.

44. The Department's failure to provide Medicaid services for Eric in his home, the most

integrated setting for receipt of those services, even though it will provide Medicaid services in

,~

institutions for Eric, violates Section 504.

ANSWER: Defendant denies each and every allegation contained in ~44.

45. Eric will suffer irreparable injury if Defendant is not enjoined from reducing the Medicaid covered nursing services he currently receives at home, forcing him-into an institution where his health will be in imminent danger, and he will be segregated from his family and the larger community.

ANSWER: Defendant denies each and every allegation contained in ~45.

46. Eric has no adequate remedy at law.

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ANSWER: Defendant denies each and every allegation contained in ~46.

47. Eric is indigent and unable to post bond.

ANSWER: Defendant is without sufficient knowledge to admit or deny the allegations

contained in ~47.

EXHIBIT

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Case 1:01-cv-09551 Document 3 Filed 130/2002 Page 91 of 134

James C. O'Connell David Adler Assistant Attorneys General (Of Counsel) 160 North laSalle Street Suite N-l 000 Chicago, Hlinois 60601 (3 t 2) 793:-2380 Attorney #400028

Respectfully submitted.
James E. Ryan,
AHorncy (jenera) of Illinois
By:

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Case 1:01-cv-09551 Document 3 Filed 01/30/2002 Page 92 of 134
" " Wnireb ~t. ate5 «ourt of ~ppea15
For the Seventh Circuit Chicago, Illinois 60604
JUDGMENT - WITH ORAL ARGUMENT

Date: March 8, 2001

~'" ..
BEFORE:

Honorable WILLIAM J. BAUER, Circuit Judge

Honorable DANIEL A. MANION, Circuit Judge

"\J No. 00-3929

Honorable lLANA DIAMOND ROVNER, Circuit Judge

DONNA RADASZEWSKI, Guardian for Eric Radaszewski, Plaintiff - Appellant
v.

ANN PATLA, Director, Illinois Department of Public Aid, Defendant - Appellee

l~peal from the United States District Court for the ~~thern District of Illinois, Eastern Division •. J. 00 C 5391, John F. Grady, Judge
This case is DISMISSED as moot. The district court's judgment on the merits is VACATED and the case is REMANDED for the district court to dismiss all previous orders entered in this case as moot. The above is in accordance with the decision of this court entered on this date.
(1061-J.I0393)

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Case 1: 01-cv-09551r--...:D=:,.o::::....c::...:u:::..:..,m;..;...e::...:.n..:..::.t...;;:.3_....:...F...:,;.li.;:::...ed=--=-O....;..1/:...::3:...::0.:....::/2::...:0-=O..=2_...:P....a....;~;;Qle 93 of 134

""" UNPUBUSHED ORDER ",.,

1

Not to be cited per Circuit Rule 53

I

•

Wniteb ~tate5 ([[ourt of ~ppea[5

For the Seventh Circuit Chicago, Illinois 60604

Argued January 26.2001 Decided March 8, 200 1

Before

Hon. WILLIAM 1. BAUER, Circuit Judge

Han. DANIEL A. MANION, Circuit Judge

Hon. [LANA DIAMOND ROVNER, Circuit Judge

No. 00-3929
DONNA RADASZEWSKI, Guardian for Eric Radaszewski
Plaintiff-Appellant,
v.
ANN PATLA, Director, minois Department of Public Aid,
Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 00 C 5391
John F. Grady, Judge.

ORDER

Plaintiff filed suit under 42 U.S.c. § 1983 seeking declaratory and injunctive relief

against defendant for reducing the private duty nursing care provided to her son, thereby

violating his due process rights and the Medicaid statute, 42 V.S.c. § 1396 et seq. The district

court entered a temporary restraining order, enjoining defendant from r:educing the nursing care.

The district court subsequently denied plaintiffs motion for a prelimin'ary injunction, concluding

that it lacked subject-matter jurisdiction because plaintiffs c1aimsdid not state a violation of the

Medicaid statute or the Constitution. Plaintiff appealed.

During oral argument before this Court. defendant's counsel notified us that a proposed

amendment to the Illinois State Medicaid Plan had been submitted to the Health Care Financing

Administration of the United States Departmen[ of Health and Human Services for approval.

The amendment proposed to wholly eliminate private duty nursing care as a service provided

under the state plan. Therefore, at the close of oral argument, we requested that the parties

apprise us of any change in the status of this case.

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Case 1:01-cv-09551 Document 3 Filed 01/30/2002 Page 94 of 134

No. 00-3929

Page 2

On February 9th, defendant's counsel notified us that the amendment had been approved on February 2nd. In light of this change, on February 21, 2001, we ordered both parties to fi Ie memoranda arguing what effect the amendment to the state plan had on this pending case. Both parties responded that the amendment renders this case moot. We agree.
Accordingly, IT IS ORDERED that this case is DISMISSED as moot, so we hereby VACATE the district court's judgment on the merits and REMAND for the district court to dismiss all previous orders entered in this case as moot. See DiGiore v. Ryan, 172 F.3d 454, 466 (7th Cir. 1999).
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Case 1:01-cv-09551 Document 3 Filed 01/30/2002 Page 95 of 134

[N THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT
. DUPAGE COUNTY, ILLfNO[S . . . . . .

DONNA RADASZEWSKI, Guardian for Eric Radaszewski. on his behalf,
Plaintiff,
vs.
JACKIE GARNER, Director, Illinois Department of Public Aid,
Defendant.

) ) ) ) ) ) No. 00 CH 1475 } ) ) ) )

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PLAINTIFF'S MOTION FOR LEAVE TO FILE SUPPLEMENTAL COMPLAINT AND TO EXTEND TEMPORARY RESTRAINING ORDER

Plaintiff, Donna Radaszewski, by cOWlse1 Prairie State Legal Services, Inc., pursuant to

'''''

735 ILCS 5/2-609, moves this Court to grant her leave to file a supplemental complaint and

further moves the Court to extend the temporary restraining order entered on December 19,2000.

In support of this Motion, plaintiff states as follows:

1. On December 19,2000, this Court entered a temporary restraining order enjoining

.

,

.

defendant to continue to provide ongoing private duty nursing services to Eric Radaszewski until

further order of the Court.

2. On September 9, 200t, defendant filed her Motion to Vacate Temporary Restraining

Order a,nd Dismiss Caseas Moot.

3. Under 735 ILCS 5/2-609, supplemental pleadings may be filed with leave of court to

address matters that arise after the original pleadings are filed.

4. Since the filing of the Complaint, several significant matters, described in plaintiffs

"

memorandum accompanying this Motion, have occurred that give rise to additional claims

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requiring supplemental pleading and which justify extension or the temporary restraining order: plaintiff will likely succeed on the merits of these claims and Eric will suffer irreparable injury with no adequate remedy at law if defendant is not enjoined to continue to provide nursing services pending the outcome of the case
5. This Motion is based on the accompanying memorandum, the affidavits attached thereto and to be submitted to the Court~ and on the papers already on file in this action.
WHEREFORE, plaintiff respectfully requests that this Court grant her leave to file her Supplemental Complaint and that the Court extend the Temporary Restraining Order entered on December 19, 2000.
Respectfully submitted,
One of the Attorneys for Plaintiff
PRAIRIE STATE LEGAL SERVICES, INC. Eliot Abarbanel Sarah Megan Bernard Shapiro Attorney No. 67545 350 S. Sclunale Road Suite 150 Carol Stream, {L 60188 630-690-2 IJO
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Case 1:01-cv-09551 Document 3 Filed 01/30/2002 Page 97 of 134

[N THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL ClRClllT DUPAGE COUNTY, ILUNOlS

DONNA RADASZEWSKI, Guardian for Eric Radaszewski, on his behal f,
Plaintiff,
VS.
JACKIE GARNER, Director, minois Department of Public Aid,
Defendant.

) ) ) ) ) ) No. 00 CH 1475 ) ) ) ) )

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PLAINTIFF'S MEMORANDUM IN SUPPORT OF MOTION TO EXTEND TEMPORARY RESTRAINING ORDER AND IN OPPOSITION TO DEFENDANT'S MOTION TO VACATE AND DISMISS
Statement

Eric Radaszewski's mother, Dotum Radaszewski, filed this suit on Eric's behalfon December t, 2000. The reason she had filed this lawsuit was because the defendant's predecessor, Ann Patia, then the Director of the Illinois Department of Public Aid, upon Eric reaching the age of 21, had reduced Medicaid coverage from the sixteen hours a day of in-home, private duty nursing he had been receiving to five hours a day. The existing record in this case indicates that Eric requires constant, round-the-clock, private duty nursing services to meet his numerous medical requirements. Without this level of private duty nursing, Eric will likely die. (See Affidavit of Janina Badowska,M.D. attached hereto as Exhibit I, and Affidavit of Paul Wibbenmeyer, R.N., attached as Exhibit 2. Plaintiff plans shortly to submit an additional a.ffidavit by Dr. Badowska, who is presently out of the country.)

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When this lawsuit was filed, the Illinois State Medicaid Plan. which defendant administers. aUlhorized private duty nursing to all persons no matter their age. As defendant acknowledges on page six of her memorandum in support of her pending motion, this Court '''apparently agreed with Plaintiffs interpretation." The applicable provision of the Plan is set forth on page eight of Plaintiffs Memorandum in Support of her Motion for a Temporary Restraining Order. Defendant has responded in this lawsuit that notwithstanding the language of that plan, it was her agency's policy to provide only very limited, private duty nursing once a person who had been receiving Medicaid reimbursement for that service reached the age of21. lin further response to this lawsuit, defendant's predecessor, Ann Patla, applied to the Health Care Financing Authority (HeFA), a division of the United States Department of Health and I-Iuman Services, for approval of an amendment to the State Medicaid Plan that would totally eliminate private duty nursing as a Medicaid service for persons aged 21 and over. (See defendant's brief at page six.) HCFA approved the amendment on february 2, 2001.
On December 19,2000, this Court entered an order enjoining defendant's predecessor to maintain Medicaid coverage for nursing services for Eric Radaszewski at the level of 16 hours per day with an additional 336 annual hours of respite nursing services. (Memorandum Opinion and Order dated December 19,2000). The Court detennined that plaintiff was likely to succeed on the merits of her claim that defendant's efforts to amend the Illinois Medicaid plan to deny Eric necessary nursing services violated that Illinois Administrative Procedure Act (5 lLCS :100/5-10) and that Eric would suffer irreparable injury, perhaps even death, without the requested injunctive relief. rd. Since that time, Eric's medical condition and needs remain unchanged. (See Affidavits of Janina Badowska, M.D., and Paul Wibbenmeyer, R.N.)

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Case 1:01-cv-09551

Document 3

Filed 01/30/2002

Page 99 of 134
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Subsequent to the issuance ()t" that prtler. The Department of Public /\id (Department l.

embarked on a rule making effort to tlekte coverage of private duty nursing services for adults.

Defendant now asks the Court to vacate the temporary restraining order. The Department's rule

making effort, however, did not follow lhe procedures required by the Illinois Administrative

wall - Procedure Act, 5 ILCS

I et seq. This failure gives rise to an additional claim under the

Administrative Procedure Act Moreover, defendant's action taken in response to this lawsuit of

terminating private duty nursing for all eligible adults, including Eric, violates provisions of the

Americans with Disabilities Act, 42 USc. §12 [32, et seq., and Section 504 of the Rehabilitation Act of 1973. 29 U.S.c. §794, et seq. Plaintiffasks that t~is Court continue the

temporary restraining order, deny the defendant's motion to dismiss as to the first three Counts of

the Complaint, and permit her to file a supplemental complaint raising these new claims.

Argument

1. Defendant Failed to Follow the Requirements of the APA in its Recent Rulemaking.

Defendant argues that Eric, as an adult, is no longer entitled to nursing services under the

amendment to the Illinois Medicaid plan approved by the Health Care Financing Administration

on February 2, 2001, and under an amendment to the Department's administrative rules

published as final on September 14, 2001. The Department did not follow either the letter or the

spirit of the rule making requirements set out in the Administrative Procedure Act, and

defendant's Motion, based on its flawed efforts at rule making, should b'edenied.

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Under the general rule making requirements of the APA ,an agency must give at least 45

days' notice of its intended action. 5 ILCS IOO/5-40(a). This first notice must appear in the

Winois Register, and must include, inter alia, a "complete description of the subjects and issues

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invol ved." 5[LCS I 00/5-40(a)(3). During this first notice period, the agency must "accept from

any interested persons data, views, arguments, or comments." ld. The APA expressly imposes

on the agency the duty to "consider all submissions received." rd. The obvious purpose of the

APA's requirements is not to force agencies to jump through meaningless procedural hoops, but

to afford members of the public a meaningful opportunity to participate in the development of

state policies that affect them. Cf. DeBraun v. Meissner, 958 F. Supp. 227,230 (E.D. Pa.

L997) (explaining the purposes of the notice and comment requirements of the federal

Administrative Procedure Act).

The Department did not follow these requirements. The perfunctory nature of the rule

making was evident even before the Department published its proposed rule in the March 16,

2001, Illinois Register. Public participation did not inform this policy. The Department first

t'~

implemented the policy by seeking, on January 3, 2001, with no notice to the public, approval

from HCFA to amend its Medicaid plan to delete private duty nursing services for adults.

Defendant's Memorandum, 4. HCFA approved the amendment on February 2, 2001. [d. One

month later, on March 16, 2001, when the policy change was already accomplished, the

Department published the first notice to change the private duty nursing rule in the Illinois

Regi.ster. The "complete description of the issues involved" section of the notice includes

reference to several changes in the Medicaid nursing services rules. Included in the description is

the cryptic description of the change to delete private duty nursing services for adults:

the ... changes are being made as clarifications because payment is provided for private

duty nursing services only for children under the age of21 who are covered under a

waiver, as described in Section 140.645, or are identified as needing the service through

an EPSDT screening (Early and Periodic Screening Diagnosis and Treatment Program) as

described in Section 140.485.

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l:xhibit J to Defendant's Memorandum. This description is not complete. and it does not

describe the issues involved - whether the Illinois Medicaid program should cover private duty

nursing services for eligible adults, the costs and benefits of such coverage. and the costs and

benefits of alternatives. Moreover, the description is misleading. The rule is not a

"clarification." It is a change. Before this change adults could receive private duty nursing under

the Department's Medicaid program. After the promulgation of this rule, they could not. Intent

on its decision to change the rule, the Department asked for comments within 30 days, even

though the APA requires a 45 day comment period. 5 ILCS 100/5-40.

"

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Comments were submitted to the Department, both in writing and at a public hearing,

objecting to the proposed deletion of Medicaid coverage of private duty nursing services for

adults. I Several commentators told the Department that by eliminating the authority to pay for

"

private duty nursing services in the home for adults in this rule making, the Department was

restricting its options to provide services in a community integrated setting, contrary to the

direction outlined in the Supreme Court's decision in Olmstead v. L.c., 527 U.S. 58 I (1999). [n

its Second Notice on the rule making delivered to the Joint Committee on Administrative Rules

(leAR), the Department characterized these comments as "not related to the rules or their

intended purpose or potential effect" and that the "proposed amendments do not change the

,"

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policy on coverag!;! of hom~ health services for adults." Exhipit Lto Qefendant's

Memorandum. The Department did not consider the views or information of the public

I Under 5 ILCS 100/5-40, an agency must conduct a public hearing when an organization representing at least 100 persons affected by the rulemaking make a timely request for such a hearing. In this instance, ARC and the Centers for Independent Living, organizations representing persons with ~isabilities, made stich a request.

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submitted in the comments. It n.:tlls~d to consider them, and proceeded to adopt the policy It had already changed with HeFA by publishing the rules as final in the Illinois Register on September 14, 200 1. [ts procedures here violated both the requirements and the spirit of the Administrative Procedure Act.
The Illinois Supreme Court has invalidated rules when the requirements of the APA were disregarded by the Illinois Department of Public Aid. [n Senn Park Nursing Center v. Miller, 104 U1.2d 169,470 N.E.2d 1029 (1984), the Department amended its Medicaid plan to adjust nursing home reimbursement rates without following the APA's rule making requirements. When the court declared the adjusted rates invalid under the APA, the Department promulgated the rate adjustment as an emergency rule in order to avoid the effect of the court's order. The Illinois Supreme Court did not just defer to the mechanical steps the Department had taken to comply facially with the APA. lnstead it examined the Department's reasons for declaring an emergency to determine if the APA were truly followed. The court found that there was no emergency within the meaning of the APA other than the emergency created by the Department's own conduct in failing to follow the general rule making requirem(!nts of the APA. Similarly here, where the agency has refused to even consider the comments of the public, the rule making should be invalidated.
The Court's inval~dation of a rule for failure to follow the requirement of the APA is consistent with decisions of courts interpreting the requirements of the federal Administrative Procedure Act 5 U.S.c. §553. Similar to the lllinois statute, the federal statute requires that when a federal agency proposes an administrative rule the general notice of the proposed rule making shall include "either the terms or substance of the proposed rule or a description 0(" the

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subjects and issues involved." 5 U.S.C §55J(b)(3). [n National Tollr Brokers Assoc. v. United

State-~, 591 F.2d 896 (D.C Cir. 1978), the court invalidated a rule of the Interstate Commerce

Commission because, among other deficiencies, the federal agency, similar to the present casc,

had misled interested parties in describing the purpose of the rule making. 591 F.2d at 900. In

its notice the ICC had stated that the purpose of the notice was to obtain suggestions for

legislative changes regarding the licensing of certain tour brokers when in fact what ultimately

occurred was the promulgation of a final rule that instituted substantive and procedural changes

in licensing such brokers. Similarly, in DeBraun v. Meissner, 958 F. Supp. 227 (E.D. Pa.

1997), the court invalidated a rule of the Immigration and Naturalization Service when the notice

of rule making failed to inform interested parties of the impact of the rule. The proposed rule

regarding the regulation of private contractors who furnished finger printing services to

,-",

immigrants making applications to the INS, mentioned that the purpose of the rule was to

maintain clean and suitable facilities available to the public. As published, the final rule

prohibited the use of temporary sites such as vans as a suitable location for such services. The

court found that the federal agency had failed to apprise interested parties that it intended to

address other issues that would be material to them. 958 F. Supp. 231. See also, Kooritzky v.

Reidl, 17 F.3d 1509 (D.C Cir. 1994)(Rule of United States Department of Labor invalidated

because it failed to accurately describe the impact of the proposed rule).

Due to the defendant's failure to follow the requirements of the Administrative Procedure

Act, the proposed amended rule should be deemed invalid and, therefore, should not serve as the

basis for a dismissal of the first three counts of this lawsuit, as requested by defendant.

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2. Defendant's Actions Violate the Community Integration Mandate of the Americans \V'jth Disabilities Act, 42 U.S.c. §§ 12131-12136. and its Implementing Regulations.
If the Htinois Medicaid program will not continue to co vcr adequate nursing services for Eric at home, Eric's only real option is institutionalization in a hospital, although the Department has indicated Eric should be placed in a skilled nursing facility. The Illinois Medicaid plan covers hospitalization and skilled nursing facilities for adults. The plan, by virtue of its recent amendment, does not cover longer term home~based nursing services for adults. As this Court has already noted, the Department's hearing officer found that placing Eric in a nursing home facility would result in Eric being seriously medically compromised. Memorandum Opinion and Order, p.5. In addition, Eric's interrelationship with his father and mother will be compromised. As described in the affidavits of Donna Radaszewski (Exhibit 3) and Paul Wibbenmeyer, R.N. (Exhibit 2), Eric's life at home and in the community provides him with a
I''.
quality of life that is highly significant for someone with his profound disabilities. His parents provide an extremely important emotional anchor for him. They have been his constant source of care and nurturing since the onset of his disability. He becomes very upset even when his parents are briefly absent. In addition, he is able to attend educational activities at the College of DuPage because of the presence of one-on-one registered nursing. Institutionalization will not only place Eric's life at risk but will eliminate those community activities that give his life meaning. He will be in the most highly segregated setting possible, separated from h~s family who have nurtured and cared for him since the onset of his illnesses in 1992. Not only does life in the community increase the quality of his life, it is also the most likely reason that he survives.
Title U of the Americans with Disabilities Act of 1990 (ADA) provides that "no qualified

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individual with a disability shalL by reason of such disability, be excluded from participation in

or be denied the benefits of services, programs or activities of a public entity, or be subjected to

discrimination by any such entity." 42 U.S.c. §§12132. In Olmstead v. L.e., 527 U.S. 581,

596-597,119 S. Ct. 2176, 144 L.Ed.2d 540 (1999), the Supreme Court decided that unjustified

plaeement or retention of persons in institutions, severely limiting their exposure to the outside

community, constitutes a form of discrimination based on disability prohibited by Title II of the

Americans with Disabilities Act. Under the Court's decision, a state violates the ADA when it

will pay only for institutional services for people with disabilities who both want to be served

and could appropriately be served in a home- or community-based setting, and the state cannot

show adequate justification for doing so. Olmstead involved two women with developmental

disabilities and mental illnesses who resided in Georgia's state-run psychiatric hospital, waiting

I'"

years for Medicaid funded community-based placement that their physicians had recommended.

Georgia officials argued that they were not discriminating against the plaintiffs based on their

disabilities, that the state was already using all available funds to provide home based services to

other persons, and that a court order directing the state to transfer the plaintiffs to the community

would fundamentally alter its services.

[n reaching its conclusion that unjustified institutionalization is discrimination, the Court

relied in part on Congress' express legislative findings, that "historically, society has tended to

isolate and segregate individuals with disabilities, and despite some improvements, such forms of

discrimination against individuals with disabilities continue to be a serious and pervasive social

problem;" that "discrimination against individuals with disabilities persists in such critical areas

as institutionalization...; " and that "individuals with disabilities continually encounter various

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forms of discrimination. including "" failure to make modifications to existing facilities and

practices" .. (and] segregation" 527 U.S. at 588 and 600.

The Justice Department's regulations implementing Title II were also key in the Court's

rationale. The "integration regulation" requires public entities to provide services in "the most

integrated setting appropriate to the needs" of the person with disabilities. 28 C.F.R. §3S. 130(d).

The Justice Department defines the most integrated setting to mean "a setting that enables

i.ndividuals with disabilities to interact with non-disabled persons to the fullest extent possible."

28 C.F.R.Part 35, App.A. [n recognizing the basis for the regulations, the Court observed that

i.nstitutional placement of persons who can live and benefit from community settings perpetuates

unwarranted assumptions that persons so isolated are incapable or unworthy of community life.

527 U.S. at 601. The Court also noted that confinement in an institution severely diminishes the

"

everyday life activities of individuals with disabilities, impairing, among other things, their

family relations, social contacts and cultural enrichment. Id.

The second regulation, key to a plurality of the Court, requires that public entities make

reasonable modifications in their practices when necessary to avoid discrimination on the basis of

disability, unless the entity can show that the modification would fundamentally alter the nature

of the service, program or activity. 28 C.F.R. §35.130(b)(7). In taking the integration and the

reasonable modifications regulations together with the express purposes of the ADA, the Court

determined that the ADA requires states to place persons with disabilities in community settings

rather than institutions when treatment professionals have determined community placement is

appropriate, community placement is not opposed by the individual, and the placement can be

reasonably accommodated, takin.g ~nto account the resources available to the state to meet the

10

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Case 1 -cv-09551 Document 3 Filed 01

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""

needs orothers. 527 U.S. at 587.

Olmstead applies to Eric's situation. From August 1995 unti I August 2000, the lllinois

Medicaid program provided Eric with 16 hours/day 0 f pri vate duty nursing services in his home

and an additional 336 hours per year of respite care. Eric received these services under the

Department's Medicaid waiver program for Medically Fragile, Technology Dependent Children.

The Department's agents approved and arranged this service plan, based on the determination

that Eric needed the private duty nursing services, that he could benefit from those services at

home and that it would be cheaper to provide Eric those services at home than to pay for the iinstitutionalization he would otherwise require. 2 Last year, when the Department's agents

decided to terminate this level of nursing care for Eric, the decision was not based on any change

,I,

in Eric's medical condition or needs. It was based only on his turning age 21. The Department, however, went further. [n response to Eric's challenge to its practice of restricting private duty

nursing for adults, the Department moved to change its Medicaid Plan and its rule to officially

prohibit providing private duty nursing to all adults. These actions ignore the requirements of

Title II of the ADA. They ignore the interpretation of Title II made by the United States Supreme

Court that states affirmatively seek to utilize the community as a treatment option when it is

" :: ,:...--:,"~"".: ...'.. .'-., .,' -.c."

r"

:

_,

•

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appropriate, The DepartrrlCnt's stea~fastrefusal to continue to provide Eric the same services as

.an. a. ,qul.t

thath~ received

.

,.,-

-

lJ~for:-ehe

. ' .. "

; -

turned , "

21, when it would in any event pay the costs of

. ~, " . .

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"

institutionalizing him, is discrimination the Supreme Court determined violates Title II of the

"

2 With regard to this waiver program, the Department's Website explains that if services were not "provided in the home, these children would require institutional care in a hospital or skilled pediatric facility ....most of the funding is for the provision of private duty nursing, home health aides of respite care in the client's home. See Exhibit 4, p. 3, attached, or www.state.il.us/dpalhtmllhome.

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"

ADA.

[n a case similar to this case, a trial court in New York considered the claims of three

women each who suffered from severe disabilities and who had been receiving nursing services

at home under Ne\Ai York's Medicaidprogram. Sanonv. '.Ving~2000 N.Y: Misc. LEXIS 139

(Supreme Court of New York, New York County February 25,2000) )(copy attached as Exhibit

5). The state in that case sought to move these individuals from their homes into a nursing

facit.ity. As in this case there was evidence before the New York court that the physical condition

of each of the parties would deteriorate if she were placed into a nursing home. As here, there

was evidence before the court that institutionalizing these individuals would remove benefits

attained by living in the community and inter-relating with family and friends. The court

examined New York's attempt at institutionalization under Title II of the ADA and found such

"'1

action to be a violation of that provision as interpreted by 42 CFR §35.130(d), the "integration

regulation. "

Defendant may argue, as Georgia did in Olmstead, that to require her to provide nursing

services to Eric as an adult at home would fundamentally alter the Department's Medicaid

program. The only alteration that has occurred here, however, is the Department's alteration of

its Medicaid plan to eliminate coverage of private duty nursing services for adults outside its

waiver programs, and its alteration of its administrative rules to accomplish the same.

Moreover, as described above, a key aspect of the home~based services Eric has received for the

past six years is the Department's determination that the cost of services provided to Eric in his

home would be cheaper than the cost of Medicaid covered services he would need in an

institution. With very small modification in its practices, the Department can provide Eric the

12

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134

services he needs. the services that are life-saving for Eric. in his home. Instead. the Department

wants to force 22 year old Eric into an institution, which, its own hearing office has

acknowledged, will endanger Eric's life. Under Title II of the ADA, as interpreted by the

Supreme Court in Olmstead, the Department's actions are prohibited as unlawful discrimination.

3. Defendant's Actions Violate the Community Integration Mandate of Section 504 of the Rehabilitation Act of 1973 and its Implementing Regulations.

Section 504 of the Rehabilitation Act prohibits discrimination against persons who have

disabilities on the basis of disability in programs and services, like Medicaid, that are federally

funded. 29 U.S.c. §794. The Department of Justice has promulgated an integration regulation

for implementation of §504 that served as its model for its integration regulation implementing

the ADA: "[R]ecipients [of federal funds] shall administer programs and activities in the most

integrated setting appropriate to the needs of qualified handicapped." 28 C.F.R. §41.51(d). The

Supreme Court in Olmstead relied in part on §504 and the Justice Department's interpretation of

§504's requirements, to determine that unjustified institutionalization of persons with disabilities

by public entities is discrimination based on disability. Olmstead v. L.e., 527 U.S. at 590-59l.

. .

_. . :. ,,-'.'

.

'...

. ... ", - ' .

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:

For all the reasons stated in the previous section, Defendant's actions, forcing Eric into an

institution instead of providing Eric the services he needs at home, are unjustified, and violate 29

U.S.c. §794 and 28 C.F.R. §41.SI(d), as well as Title II of the ADA.

13 EXHIBIT
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Conclusion For the foregoing reasons, Plaintiff respectfully requests that this Court deny Defendant's Motion to Vacate Temporary Restraining Order and Dismiss Case As Moot- and grant Plaintiffs Motion For Leave To File Supplemental Complaint And To Extend Temporary Restraining Order.

Respectfully submitted,
Eliot Abarbanel One of the Attorneys for Plaintiff

PRAIRIE STATE LEGAL SERVICES, INC. Eliot Abarbanel Sarah Megan Bernard Shapiro Attorney No. 67545 350 S. Schmale Road Suite 150 Carol Stream, IL 60188 630··690-2130
14

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Case 1 -cv-09551 Document 3 Filed

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uNiTED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLfNOIRECf=]\fFD

EASTERN DIVISION

~

DONNA RADASZEWSKI, Plaintiff.
v,

SEP -1 2000
MICHAtL W, ,-,,-,,,,,w, .• ::> ,_ t;LERK U.S. DISTRICT COURT
l
No.

ANN PATLA, Director. Illinois Department of Public Aid.

OOC 5391

Defendant', .

AFFlDAVIT

Janina Badowska, M.D" having been duly sworn stales as follows:

t.

My name is Janina Badowska, M,D.

2.

I am a physician, board certified in pedialrics,

},

My medical practice is located at 10 W, Manin in Naperville~ Illinois, 60540.

4,

I presently have in my care as a patient, Eric Radaszcwski.

5,

Except for a brief period, in approximately 199 [. I have treated Eric since he was four and one·

~~ years old.

6.

Eric is twenty-one years old,

7.

In 1992 Eric cOntracted melanocyclic medulloblastoma which is a cancer in the brain. His medical

treatment for this disease consisted of surgery, radiation and chemotherapy.

8.

In November of 1993. Eric suffered a mid brain stroke, The mid-brain regulates those body

functions that a person performs unconsciously such as swallowing and urinating,

9,

These two medical events and the necessary medical treatment Eric has received have caused the

following medical problems for Eric:

A. His immunity to disease has been substantially reduced. He is at a substantial risk for infection which can occur very quickly, Immediate detection and treatment, often in a hospital. are necessary to prevent the rapid progression of the particular disease he may have contracted,

EXHIBIT

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"

B. He has fractunng osteoporosis which has thinned the mass of his bones. He IS thus prone to his bones breakmg.

C. He has contractures to his hands and feet. This condition leaves his hands and feet urmaturally rigid so that he is subject to falling or other body movements that can result in bone fractures.

D. Because of the fracturing osteoporosis and his contractu res he is confined 1O bed or a wheelchair and is not supposed to walk.

E.

He has hydrocephalus which means that he has cerebral fluid within his skull cavity. This

condition has resulted in Eric's mental deterioration and has caused seizures.

F.

He has double vision, 100 percent loss of hearing in his right car and 80 percent loss of

hearing in left car.

G. He is apraxic and unable to move his arms and legs knowingly~ aphasic meaning he has lost the majority of his ability to speak and suffers from a condition known as Syndrome of Inappropriate Anti-Diuretic Hormone (SIADH) which affects his ability to urinate properly. This medical condition results in nausea, vomiting and can cause seizures. Because of Eric's loss of motor skills, vomiting can be a life threatening event to him.

10. These medical conditions require that the following medical procedures be available at all times and administered when needed:

A. Eric requires a person with sufficient medical knowledge and training to identify the onset of infections. That person, at a minimum, should be a registered nurse.

B.

Eric is primarily fed intravenously eight hours each night. He cannot feed himself. To

reduce elimination problems. he is also fed solid foods. His tolerance for these solid foods

is low and can lead to intractable vomiting. When this occurs he must be fed first stage

baby foods through an NO tube which is inserted through his nose to his stomach. His NG

tube is also used to administer his medications.

c.

[n addition to the NO tube he has a catheter to urinate, a ventricular pleural shunt that

drains the fluid in his skull into the pleural space of his lungs, and a Groshung catheter by

which he receives food and hydration. All of these tubes are prone to infection and must

be constantly monitored. He requires a registered nurse level of medical assistance to

provide the sterile care of these tubes, to place his NG tube, to.provide suctioning, and to

prepare drugs that must be measured and administered sometimes rapidly.

D. Because Eric has deficiencies in long and short tenu memory, he does not remember his disabilities and limitations and is prone to undertaking activities which threaten his well being and even his life such as attempting to walk or pulling on his tubes. Accordingly, he must be conSlantiy monitored to ensure that he docs not injure himself.

E.

He requires constant monitoring by a person with a registered nurse level of training for

2
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Case 1:01-cv-09551 Document 3 Filed 01/30/2002 Page 113 of 134

seizures, shunt malfunction and dcsaturalion

F.

He requires care at a registered nurse levcllO admmister intravenous drugs, hydration,

triphosopyridine nucleotide (TPN) (Intravenous feedings), injections and oxygen.

G. Because he suffers from SIADI-!, the quantity and quality of his urine and its composition must be monitored by a trained person.

H. The quality of his skin must be monitored

1.

Because Eric does not have the mental capacity to protect his airway, he at times requires

emergency suctioning to prevent aspiration.

I, I. The above medical conditions render Eric totally dependant for all activities of daily living (ADL).

l. 2. Eric's chronic health problems will continue to multiply due [0 the damage he received from his cancer treatments. Only in his home, with proper medical care and support, can he medically survive and achieve some quality of life in the caring and (oving environment that his parents provide.

J3. For Eric, the alternative to home care is hospital care, A skilled nursing facility cannot provide the one-on-one around the clock medical care that Eric requires.

14. His survival to this point is attributable to (he high level of registered nursing care he has received. Without this level of care, it would have been necessary to admit him to a hospital many times a year.

I S. He requires a high level of registered nursing care to properly perform the medical tasks outlined above. This care needs to be one-on-one and { reconunend that he receive such care 24 hours each day. Any amount ofdaily care less than this level endangers Eric's fragile medical condition. His survival depends upon his receiving this level of carc.

SUBSCRIBED AND SWORN to
. befor~ mc this 3k
~l1U:A~.
NOT YPUBUC

OFFICIAL SEAL CYNTHIA A Al.rmy
NOTMY PUBLIC. STATE Of' H.LlNO/S MY COMMISSION E"XPIRES; 12109.'00

J

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Case 1:01-cv-09551 Document 3 Filed 01

Page 114 134
"

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUorCIAL CIRCUIT DUPAGE COUNTY, ILLlNOIS

DONNA RADASZEWSKI, Guardian £:)1' Eric Radaszewski, on his behalf,
Plaintiff,
vs.
JACKIE GARNER, Director, Hlinois Department of Public Aid,
Defendant.

) ) ) ) ) ) No. 00 CH 1475 ) ) ) ) )

AFFIDAVIT I, Paul Wibbenmeyer, having been duly sworn under oath, state as follows: 1. I am a registered nurse. 2. I have been involved in Eric Radaszewski's care since May 1992. 3. I am the lead nurse and coordinate the care and treatment of Eric by the various nurses working for the Radaszewskis. [have been Eric's lead nurse since May 1992. 4. I have had extensive training and experience in treating severely disabled patients such a.s Eric. 5. Since Dr. Badowska's report in her affidavit of August 31, 2000, Eric's condition remains the same. Eric continues to experience all the medical conditions which are described in Dr. Badowska's affidavit. In addition, he continues to require all the nursing services described in Dr. Badowska's affidavit of August 31,2000. 6. Fortunately, due to the excellent nursing care received by Eric during the past year, his
EXHIBIT G
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Page 115 134

condition has not deteriorated. 7. Given the technological complexity, skill, and judgment reljuircd to administer these
multiple skilled nursing tasks, it is inconceivable that his care could be handled by anyone other than a fully licensed registered nurse on a one-to-one basis.
8. He is at risk of exacerbation of his chronic health problems and they could escalate to acute life threatening problems.
9. All these multiple health problems require the continuoLls monitoring by someone with the training and education of a registered nurse.
10. It is important to Eric's care and progress that he remain in his home, where he is eomfortable and oriented. He receives consistent care in the home from the same nurses, with very little turnover of staff.
II. His parents are his anchors. Their constant presence contributes greatly to his quality of life. He is very dependent on them. Without their presence, he would be more confused, scared, and frightened. He has not been away from his parents in his entire life.
12. In my opinion, Eric's condition would markedly deteriorate ifhe were placed in an institution away from his parents and without the constancy of care that he receives at home.
13, Also, by remaining at home. Eric is able to participate in several educational activities. He attends the College of DuPage with the assistance of a registered nurse for independent learning activities. These activities would not be possible 'without the constant presence of a registered nurse.

2

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Case 1:01-cv-09551 Document 3
", '

Filed 01

Page 116 134

The foregoing is true and accurate to the best of my knowledge and belief, and I would so testify if called upon to do so in a court of law.

SUBSCRIBED AND SWORN to before me this /'i'lIay· .
of 0<:\0"0 .... ] , 2001.
~e<~~D
NOTARY PUBLIC

OFFICIAL SEAL
SUSAN E BEARD
NOTMY PUBlIC, STATE Of ILUNOIS, tI('( COMMISSION EXPlAES:09J08,106
""J

3

EXHIBIT
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Case 1:01-cv-09551 Document 3 Filed 01
n

Page 117 134

IN THE CIRCUIT COURT OF THE EIGHTEENT! [JUDICIAL CIRCUIT
DUPAGE COUNTY, ILLINOIS

DONNA RADASZEWSKI, Guardian for Eric Radaszewski, on his behalf,
~laintiff,
vs.
JACK1E GARNER, Director, lllinois Department of Public Aid,
Defendant.

) ) ) ) ) ) No. 00 CH 1475 ) ) ) ) )

AFFIDAVIT I, DOirna Radaszewski, having been duly sworn under oath,state as follows: 1. I am the mother and plenary guardian of Eric Radaszewski. 2. I have been actively involved in the care and treatment of Eric since he first developed severe medical problems in 1992. 3. I and my husband, Lester Radaszewski, provide a loving and caring home environment for Eric. He has known no other home during his entire life. 4. We provide a clean and healthy environment for Eric, changing his clothes and bed sheets daily. 5. We make special foods that we know Eric likes and can tolerate, such as waffles, pancakes, and hamburgers. 6. I cut his hair, finger nails, and toe nails at least 0l1ce a week.

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,I,

n

"

7. Eric is vcry dependent on my husband and me for emotional and psychological

support.

8. My husband and [ talk with Eric, watch television with him, and play various games

with him. Eric enjoys watching sporting events with my husband and also enjoys doing puzzles

with both of us.

9. We assist in his education by doing homework with him. Since he can't read, we

often read his homework materials to him and he is able to answer the questions. I work with

him on his reading and math.

10. My husband often rough houses with Eric, which promotes an emotional attachment

with him.

11. Many of our conversations serve to alleviate Eric's anxieties about his medical and

~~

physical condition. We talk about how he got the way he is and what he can expect in the future.

12. Eric gets depressed when he is away from us for any period of time. For example, [

was recently hospitalized for several days. Eric became very depressed during that period.

13. When we're gone from the house, even for brief periods, Eric constantly asks when

we will return.

14. Eric has episodes of dementia; we provide positive reinforcement of where and who

he is.

15. We also attempt to foster his self-sufficiency by requiring him to perform as many

tasks as we think he is capable of.

2

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Case 1. -cv-09551 Document 3 Filed 01/30/2002 Page 119 of 134

or foc (nrog(Hng IS lrue and accurJt( LO Lhe tx~1 my ;,;,nowlcdf,C 411<1 bdrd, l{HJ I \\()uld ,0

"

It::-;ufy If calkd upon 10 do ~o In .) coun 01 \jW

SUBSCRIBED AND SWORN lu
befon::: me this \ )11iay
- . of \.O. (..\20-Io- ~(r
-~ .
NOTARYPUBUC

OFFICIAL SEAL
SUSAN E BEARD NOTNrf rueuc. &TAT E Of IU..IHOtI
MY COMMr8SIOH rXAR(aloelOeo<l4S

"

I EXHIBIT G Pg. 25 of 40

Case 1 -cv-09551 Document 3 Filed 01

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Ilorne and Commu!:itY-Base~~rviCt:s Waivers Medical Annual Repo~

"

HOME AND COMMUNITY BASED SERVICES (HeBS) WAIVERS

SE~ction 1915(c) of the Social Security Act authorized the Secretary of Health and

Human Services (HHS) to waive certain Medicaid statutory requirements. The

waivers enable State Medicaid programs to offer HeBS, not otherwise furnished

under the Medicaid State Plan, as an alternative to hospital and nursing facility care.

Services can be targeted to a limited, select group of individuals. Cost-effectiveness

must be demonstrated by reasonable estimates of annual expenditures for waiver

individuals compared to average per capita costs of institutionalization. Most

waivers are not directly administered by the Department. As the single State

Medicaid Agency, the Department is responsible for oversight and monitoring of the

aclministering agencies in enforcement of health and safety standards and fiscal

responsibility.

.

.

. ..

The Department has entered into Interagency agreements with the administering agencies, described below, that are responsible for the day-to-day ope~i3tionsof the individual waiver programs. The Department works closely with these agencies to assure that Federal requirements are being met. The Bureau of Interagency Coordination performs monitoring of the seven HCBS waiver programs with day to dclY operations administered by other agencies. The Bureau of Long Term care aciministers the Supportive Living Program Waiver. Some monitoring activities have been in place for two to three years, others are in the implementation or development stages. The following is a description of nine waivers and the Department's monitoring activities.

Supportive living Program (SlP)

This waiver serves those over the age of 18 with disabilities and the frail elderly. Supportive Living Facilities combine housing, personal and health related services for indiViduals who would otherwise be institutionalized in a nursing facility. The Department administers this waiver which was originally approved September 23, 1997. This waiver was amended on April 22, 1999, to cover a three year period commencing July 1/ 1999.

The Department has contracts with nine entities that were selected through a

request for proposal process, to develop ten sites around the state that would serve

up to 1,000 persons. One entity will develop two sites. It is anticipated that by end

of Fiscal Year 2001, all sites will be operational and offer the following services to

residents:

.

.....

o Intermittent NurSing Services o Personal Care o Medication Oversight and Assistance in Self-Administration o Meals o Laundry o Housekeeping

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htlt):II\\fWW.state.iLlIs/dpafhlmlihornc and community-based servi.htm

I O!7!O I

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Page 121 134

Home and COll1munity~Baseq--:,vicesWaivers Medical Annual Rcpo~

Page.2 of 5

o Maintenance
o Social and Recreational Programming o Ancillary Services (Le., group activities, arranging outside services,
shopping assistance)
o 24 Hour Response/Security Staff o Health Promotion and Exercise Programming
o Emergency Call System

Service rates paid by the Department will be 60 percent of what would be spent on NF care. The Department wants to determine how effective SLP is to postponing entry into a NF, while offering a less costly alternative to NF care.

AI[)S/HIV

This HeBS waiver services medically needy individuals diagnosed with HIV or AIDS, who are eligible for hospital or nursing home level of care. This waiver was renewed on October 1, 1998, for five years. During Fiscal Year 1999, 1,225 persons were served. This program is operated by the DHS - ORS. Services in this waiver include homemaker, personal assistant, nursing and therapies not covered in the State Plan, home delivered meals, emergency home response and home. modifications. The Department is currently developing processes to monitor program and financial activities. A pilot review of this program will be conducted in the Spring of 2000.

Adults With Developmental Disabilities

"

This waiver program serves individuals with developmental disabilities, eighteen yE!ars or older, and aJlows them to remain in their homes or home-like community residential settings rather than be institutionalized in an Intermediate Care Facility
for the Mentally Retarded (ICF/MR). The waiver served 6J73 individuals during the Fiscal Year 1999.

On July I, 1999, a new waiver application was approved by the HCFA to provide habilitation services, which includes residential, developmental training, and su pportive employment. Foster care services are not covered under the new waiver. Other available services, not covered by the State Plan, include physical, occupational and speech/language therapies and behavioral services which are currently bundled under reSidential habilitation; and home modifications and special medical eqUipment and supplies, individually approved based on need. At HCFA's request, DHS, the administering agency, will phase in unbundling (separate • funding) of therapy services over the next year.

In Spring 1999, the Department completed four pilot onsite monitoring visits of

residential and developmental training sites, two in the Chicago Metropolitan area

and two downstate. The Department also completed onsite reviews of over 650 .

individuals in foster care homoes.' . . .

. 0 " 0 ' . , . . . . . o·

The pilot reviews allowed the Department to work with DHS in coordinating onsite

processes and develop a comprehensive monitoring protocol. Since August 1999, the Department has completed record reviews of 225 individuals receiving waiver services. In addition, four comprehensive onsite reViews, coordinated with the DHS

monitoring process, were completed, Findings are referred to DHS for follow-up and

response.

~--E·X·H·IB-IT--'"

Early Intervention (EI)

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Case 1 -cv-09551 Document 3 Filed 01

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Home and Communily-Bascd~jviccs Waivas Medical Annual Rcpor"

This waiver serves infants and toddlers under age three who are experiencing a 40 percent or more developmental delay with cognitive, physical, language and speech, psychological or self-help skills; or who have a physical or mental condition that has a high probability of resulting in a 40 percent or more developmental delay, such as Down's syndrome or cerebral palsy. The severity of the delay is at a level that could require institutional care. Cost-effectiveness of these waiver services are compared to institutionalization in an ICF/MR.

The Department of Human Service's Bureau of Early Intervention is the aclministering agency for the EI waiver. Developmental Therapy is the only service provided under this waiver. No EI waiver services have been claimed for the second yE~ar of this waiver (Fiscal Year 1999). In February 1999, to improve accessibility, DHS broadened eligibility for EI services to include infants and toddlers with a delay of 30 percent or more in one area. Since the waiver only applies to children with a delay of 40 percent or more, not all developmental therapy services are eligible for Federal match under the approved waiver. There is currently no means to el4~ctronically identify and sort out the 40 percent level of delay for reimbursement and the cost to capture the eligible population is estimated to exceed the potential Federal reimbursement.

Elderly

This waiver provides services to individuals who are 60 years and older, who would

otherwise be in nursing facilities. This waiver was approved by HCFA, effective

October 1, 1999, for a five year renewal. It is operated through the Department on

A9in9 (DoA). The number of persons served in this waiver for Fiscal Year 1999 was

17,602.

"

Services for this waiver primarily include homemaker and adult day care services.

Other services approved in the waiver are emergency home response and home

delivered meals. The Department expanded oversight of this waiver during the past

year to include record reviews at Case Coordination Units, the case management

entity for this program, Interviews of individuals in the waiver haye also be,en

conducted. The Department plans to continue intensive quarterly reviews of a

selected sample. These reviews look at individual satisfaction and DoA oversight of

individual services, case coordination, and providers.

Medically Fragile, Technology Dependent Children

This waiver serves medically fragile, technology dependent children under the age • of 21. Over 230 individuals were served through this waiver in Fiscal Year 1999. If
waiver services were not provided in the home, these children would require institutional care in a hospital or skilled pediatric facility. Cost-effectiveness for eligibility is compared to service costs in these institutional settings. The University of IllinoiS at Chicago, Division of Specialized Care for Children (DSCC) implements the waiver program, through case management, claims management and monitoring of the waiver services. Most of the funding is for the provision of private duty nursing, home health aides or respite care in the client's home. Other covered services include: environmental modification, special medical equipment and supplies, and placement counseling.

"

The Department recognizes the benefit of respite services for families and care givers. On December 27, 1999, the Department requested an amendment to the waiver to include an optional setting for respite services that are now only provided in the child's home. In August 1999, the first Children's Respite Care Center Model,

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1017'01

Case 1 -cv-09551 Document 3 Filed 01

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i-lome and Communily-f{aSed",rvices Waivers Medical Annual RerOn

Page -i of 5

Respite House, was licensed by the Department of Public Health, under the Alternative Health Care Delivery Act. The Children's Respite Care Center Model will provide technological support and nursing care, for a period of one to fourteen days, in a horne-like environment. Medicaid coverage for services is limited to Medicaid elj,;Jible children, under age 19, participating in this waiver. Again, this is not an additional service, but an optional setting allowing the family more flexibility. It is not expected to increase the cost of the waiver.

The Department's Bureau of Comprehensive Health Services (BCHS) reviews the individual service plans. The Department's Bureau of Interagency Coordination (BIC), and BCHS meet quarterly with the DSCC to discuss issues. The Department's BIC has been reviewing a sampling of records for service needs and costeffectiveness and will implement case review and onsite monitoring of services early in Fiscal Year 2000.

Physically Disabled

The Physical Disabilities HeSS waiver provides services to those individuals under age 60 with physical disabilities (including ventilator dependent adults), who would otherwise require admittance to a nursing facility. The waiver renewal was approved by HCFA, effective October 1, 1999 for five years. It is operated through DHS ORS. The waiver served approximately 12,290 individuals for Fiscal Year 1999.

Primary services for this waiver include homemaker services, provided through home health care agencies and/or personal assistants (PAs) that are hired, supervised, and/or fired by individual customers. Other services include Adult Day Care, Extended State Plan Nursing and Therapy Services, Emergency Home Response, Home Delivered Meals and Environmental Modifications.

The Department expanded oversight of this waiver during the past year beyond record reviews to include interviews of individual customers on a selected sample. These reviews also focus on the provider's delivery of services for those interviewed and DHS-ORS oversight of provider compliance.

Traumatic Brain Injury

The Traumatic Brain Injury (TBI) HCBS waiver provides services to medically needy individuals with acquired brain injuries that occurred as a result of injury or disease rather than degenerative, congenital or neurologic disorders related to aging. The alternative to waiver services would be nursing home level of care. This program is operated by DHS-ORS.

"

This waiver was approved by HCFA with an effective date of July 1, 1998, but was

not implemented until July 1999. The Department is currently amending the waiver

to change the effective date to July 1, 1999. DHS-ORS contracted with eleven case

management entities and trained them to meet the needs of the individuals with

traumatic brain injury. There are currently 250 partiCipants in this program.

Approximately 150 individuals were transferred from the HCBS waiver for persons

with physical disabilities. The remaining 100 participants are new to waiver services.

This waiver is unique as other HCSS waivers do not provide the array of services

that are needed to keep a person with traumatic brain injury in the community.

ServicE:s for this waiver include services provided in the physically disabled waiver

and additional services including habilitation, occupational therapy, speech, hearing and language services, and behavioral services.

EXHIBIT

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Case 1 -cv-09551 Document 3 Filed 01

Page 124 134

Home and CommunilY-Base~rvices Waivers Medical Annual Repo""

Page 5 of 5

The Department has been meeting regularly with DHS-ORS staff as the program

bE!en implemented. The Department will be developing protocols and complete a

"

pilot review of the program in the second half of Fiscal Year 2000.

Medlc:~rP!Qg!:~rD.? I K.i.d.Q9L~ I CDi!(:L$l.lpp.o!1~n~qf<::em.ent Ag~r1GY InJQ I !!U?p'!?ctQr(?.~D.er<;l1
l;.:.r:Df!.li.! DPA \'Y.~b .Mas~[ I E-mQJU:!!ledic:§LA.-§~jS.tpD(;:~
HQm.~ Page. I G.9r1.t~C~ u..? j gQ.o\Jt '.oPA I Ne\hl? I Site Map

http://www.state.il.us/dpa/htmlfhome_and_community-based._scrvi.htm

EXHIBIT

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Case 1 -cv-09551 Document 3 Filed 01 Gel a Document - by Cilalio[~O()() ~ Y \-1I:;c. LEX[S 139

Page 125

134
I'a~,,; I of II

SeNice: Get by LEXSEE® Citation: 2000 n.y misc. lexis 139

2000 N. Y. Mise. LEX/S 1]9, *

[n the Matter of the Application of CLARICE SANON, Petitioner, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules, v. BRIAN WING, as Commissioner of the New
York State Office of Temporary and Disability AsSistance, BARBARA A. DeBUONO, as Commissioner of the New York State Department of Health; JASON TURNER, as
Commissioner of the New York City Human Resources Administration, Respondents.

Index No. 403296/98

SUPREME COURT OF NEW YORK, NEW YORK COUNTY

2000 N.Y. Misc, LEXIS 139

February 25, 2000, Decided
!NOTICE: [*1] THE LEXIS PAGINATION OF THIS DOCUMENT IS SUBJECT TO CHANGE F)ENDING RELEASEOfTHE FINALPUBLISHED. VERSION.

CASE SUM.~ARY

PROCEDURAL POSTURE: Petitioners sought to annul decisions of respondents state department of heath and city department of social services to terminate Medicaid home care services, that would result in disabled petitioners' placement in nursing homes, based upon issues of due process, defective standards, and procedures in evaluating an I=xception to fiscal assessment law, and compliance with the Americans with Disabilities
Act of 1990, 42..U..?,c.S. § 1210~.et seq.

lOVEll-VIEW: Disabled plaintiffs were receiving Medicaid home health care from

defendant city and state health agencies. The defendants decided to terminate that care

such that plaintiffs' placement in a nursing home for the care would likely follow. The

court determined that the decisions were to be annulled in order to enable defendants to

consider the requirements of the Americans With Disabilities Act of 1990 (ADA), 42

IJ.S.C.S. § 12101 et seq. The ADA requirements to provide appropriately integrated

!:;€rvices were not absolute. The ADA did not require that a state make fundamental

i:llterations in its Medicaid program. However, unless the stat~.could demonstrate that

accommodating Medicaid recipients who otherwise qualify for 24-hour home care would
result in a fundamental alteration in the Medicaid program, the state had to provide

services in the most integrated setting appropriate to the needs of plaintiffs. The state

was required to demonstrate what the cost of such an undertaking would be with respect to thE~ system as a whole and not just the comparative cost with respe<;tto the ....

individual. That showing was not made by the state here, so in-home service to plaintiffs

was to continue.

_ _ _....~~-

EXHIBIT

OUTCOME: This court set aside and annulled the determinations of defendants to ~

G

discontinue personal care services and such that referral of plaintiffs to a reSidential j Pg. 31 of 4

health care facility would likely fOllow, in order to enable defendants to consider an

follow the requirements of the Americans With Disabilities Act to demonstrate what

cost would be with respect to the system as a whole and not just the individual.

CORE: TERMS: home care, placement, recipient, regulation, nursing home, integrated, faIr hearing, disabilities, contraindicated, integration, health care, reSidential, dal,lghter,

Case 1 -cv-09551 Document 3 Filed 01 Gel. a Dl)(lItllCnt ~ by Citat lotl('1000 N. y~ Misc. LEXIS 139

Page 126 134 Page 2 of 11

,.,

substantial evidence, Disabilities Act, appropriateness, discontinue, continuous, disabled, diminIsh, vacated, fiscal, services provided, ability to perform, hypertension, entitlement, monitoring, alteration, attendant, constant

CORE CONCEPTS - + Hide Concepts

i:® Adminis.trative Law: Agency Adjudic.Cl.tiQn:.Hg.aJi[lgs
Z, Where a petition raises questions which could terminate the proceeding, other than substantial evidence, the [AS court must address them.

CJ Pensions & Benefits L~L~~.jl.mericans..YJith Disabilities Act
.t;The Americans With Disabilities Act of 1990, il2 U~.C.~!..§141QJ.. et seq. is an effort Congress to combat discrimination against people with disabilities and to provide integration into the economic and social mainstream of American life for these
individuals.

I~ tt~9J.th~C;:.Qr~.J~.CLV·L..:.JIlsJ.lranc;:e. :J"t~gl~<;:IJd
j";One of the objectives for individuals with disabilities, the statute states, is independent
living. 4lJi.•s...C...SL §. 1,.2101 (a)(8).

[:J Eensions & Benef.i.!;~J=Q.w.._: Americans WlttLDisabilities Act

f;The Americans With Disabilities Act of 1990 (Act), 42 U,_$.,C.$ .. §_J2.tO.J.. et seq., directs

the United States Attorney General to promulgate regulations necessary to implement

the Act. 42 U.S.C.S. § ~2134(a). These regulations are entitled to substantial

deference.

..

[:J Eel]sions & Benefits UlW_.: Americans With Disabilities Act
j; See 28 c'F.R. § 35.130(d).

[J E~nsions & Benefits Law,..: Americans With Disabilities Act

±28 c'F.R. §35.130(d) is virtually identical to the § 504 integration regulation of the

Rehabilitation Act of 1973, 29 U.s.C.s. § 701 et seq., in effect since 1981. Because

Congress approved the earlier regulation by mandating that the Americans With

Disabilities Act of1990 (Act)t4~ U.s.C..-'.S.§..J.210_!. et seq., regulations be patterned

after the § 504 regulatiops,2,8 C~F~R. § 3S.130(d) hasthe force of law.

..

~) tt.e.~lU!care Law : In$lInmc:.e...;..J~:'I.e.djcaid
~~ While the analysis which demonstrates that disabled people are being treated differently from non-disabled people is appropriate when comparing services provided
to both disabled and non-disabled people, it does not apply to services provided only to
disabled individuals, who seek compliance with the integration mandate of the
re9ulations contained in 28 C.F.R. § 3S.130(d).

D L..QI;LQr & I;mQloyment .l",q1lY...:..f!Jl...Qloy[n~l1tDiscriminat!9n
[ ] Pensions & Benefits Law : Americans Witb_ Disabilities Ac:.t
±. The Supreme Cou rt has rejected the proposition that, in order to constitute
discrimination, a party must demonstrate that he or she was treated differently from
Similarly Situated individuals.

[.J PE;.nsj9.ns~.e~.DJ~_mst,..aw : Am.~[i<;Ml? Wi.tI1.. QisaqiliQ§ .Act

~:. Congress explicitly identifies unjustified segregation of persons with disabilities as a

form of discrimination.

,-~~~~~_. .
EXHIBIT

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fn.... tc

Case 1 -cv-09551 Document 3 Filed 01/30/2002 Page 127 134

Get ,1 [)ucLlmcnl - by Citationtj)OO.N.Y. Misc. LEX[S \3<)

Page 3 of I I

:~ The Americans With Disabilities Act of 1990 (Act), 42 U.S.C.S. § 12101 et seq., mandates integration.
(j Healthcare Law: Insurance: Medicaid
CJ Pensions & B~~efits Law: Americans With Disabilities Act : O~fenses
:11: The Americans With Disabilities Act of 1990 (Act), 42 U.S.C;:::..S.§ 12101 et seq.,
provides an affirmative defense to a violation of the integration requirement of the Act if a defendant proves that making a modification would fundamentally alter its service
or program. 28 C.F.R. § 35.130(b)(7). tn order to establish this affirmative defense,
the defendant must prove that the requested relief would alter the essential nature of the program or impose an undue burden or hardship in light of the overall program.
u~ Healthcare Law: Insurance: Medicaid
CJ P~;~~i~~-~&B;~~fit~ _La'~ -:-h~_~.Lca~?.with Disabilities Act
;tIn evaluating a state's fundamental-alteration defense to the integration requirement of The Americans With Disabilities Act of 1990 (Act), 42 U.S.C.S, § 121Q1 et seq., the court must consider, in view of the resources available to the state, not only the cost of providing community-based care to the litigants, but also the range of services the state provides others with mental disabilities, and the state's obligation to mete out those services equitably. The focus is, therefore, not only on the impact on the state's budget of providing the services, but also on the competing demands of others requiring services and the state's available resources.
CJ Pensions & Benefits LQw .-=-P.meri~ar)~yVith Disabilities Act
,±.A state's obligation to provide appropriately integrated services is not absolute as The Americans With Disabilities Act of 1990 (Act), 42 U.s.C.S. § 12101 et seq .• does not require that a state make fundamental alterations in its Medicaid program.
{~ Healthcare Law: Insurance: Medicaid
[ j ~~~si~-;;&Be~;fits .~~_~·L~)\m~~j~~n$..Wlth Disabilities Act
,±.The Director of Social Services (DSS) must address the requirements of the Americans With Disabilities Act of 1990, 4~.JJ-,-S.,(:.,S. § 12101 et seq" in considering the provision of services. Unless DSS can demonstrate that accommodating Medicaid recipients who otherwise qualify for 24-hour home care would result in a fundamental alteration in the Medicaid program, DSS must provide services in the most integrated setting appropriate to the needs of petitioners. 28 C.F.R. § 3S.130(d).

"

JUDGES:

'.

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KARLA .' "

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rQPINIONBY: KARLA MOSKOWITZ

OPINION: AMENDED n1 DECISION AND ORDER

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 When this deciSion was initially released on February 17, 20001 the court erroneously believed that petitioner Florence Rubin had died while the proceeding was sub judice, thus

mooting the proceeding. In a letter dated February 24, 2000, petitioner's counsel informed

the court that this was not the case; Ms. Rubin is still living, and in fact, is still living at

home. This amended decision is identical to the prior-released decision except that the

decretal paragraph(s) have been amended to address Ms. Rubin.

EXHIBIT

- - - - - - - - - - - - - - - - ·End Footnotes- - - - - - - - - . - - - - - - -

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Case 1 -cv-09551 Document 3 Filed 01 ljet ;1 Document - by Citation j('OO N. Y. Misc. LEXIS [39

Page 128 134 Page <-+ of II

KARLA MOSKOWITZ, J.
In three separate proceedings, n2 petitioners seek to annul the decisions of respondents New York State Department of Heath ("DOH") and New York City Department of Social Services ("DS5") to terminate Medicaid home care services, that would result in petitioners' placement
I: * 2] in nursing homes. Petitioners raise issues of due processr of defective standards and
procedures in evaluating whether petitioners meet an exception to the fiscal assessment law and of compliance with the Americans with Disabilities Act ("ADA").
- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - . - - - - - -
n2 The other two proceedings are Matter of Rubin v DeBuono, Index No. 402767/1998 and Matter of Jackson v DeBuono, Index No.: 402855/98
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -
Because the legal issues involved in the three proceedings are closely related, I am deciding them together.
Petitioner Ena Jackson
P,etitioner Ena Jackson is an 84-year-old recipient of personal care services through the M:edicaid program. She was a nurse for thirty years and is now severely disabled as a result of severe osteoarthritis and polymyositis, diabetes mellitus, hypertension and urinary incontinence. She is confined to a wheelchair due to severe muscle weakness and limited range of motion and has had 24-hour continuous care of "split shift" Medicaid personal care selvices since October 1988. Since 1979, [*3] Mrs. Jackson has lived in an apartment that was built under a Federal program to enable elderly persons to live independently. The building provides services tailored to the needs of an elderly population.
In March 1996, DSS began to conduct a reauthorization of Mrs. Jackson's services pursuant to 18 NYCRR § 505.14(b)(S)(ix). This included a "fiscal assessment" of Mrs. Jackson's home care to determine whether home care services are "cost-effective," as required by Social
Services Law §.. J.6.7-:i<.. Under that section, if the cost of a recipient's care exceeds 90% of the
average Medicaid cost of a nursing home placement, the local agency is required to determine whether the home care meets one of several statutory exceptions. Mrs. Jackson contends that the fourth statutory exception is applicable to her. That exception applies when "personal care services are appropriate for the patient's functional needs and ... institutionalization is contraindicated, based on a review by the social services district of the recipient's medical case history." Social Services Law § 367-k(1){d)(iv).
I
Dr. Mark Eberle r Mrs. Jackson's primary physician [*4] since 1988, submitted an nM-28u" form to DSS, in which he set forth his opinion that all of the enumerated activities of daily living ("ADLs") would deteriorate if Mrs. Jackson were placed in a reSidential health care facility (nRHCF" or "nursing home"). DSS then sent an RHCF Review Form known as "Form 28v" to a nursing home for review of the physician's opinion. Dr. Kaplan, medical director of Florence Nightingale Nursing Home, signed the form and checked the box stating that he had reviewed the Medical Request for Home Care completed by the treating physician and form ['v1-28u and disagreed with the patient's physician that placement in an RHCF would cause the diminishment of the ability to perform ADLs. DSS's Local Medical Director ("LMD") concluded - - - that Mrs. Jackson did not meet any of the statutory exceptions.
On May 6, 1996, DSS notified Mrs. Jackson that the cost of her home care exceeded the fiscal limits and that she must be referred to an RHCF. Mrs. Jackson requested a fair hearing r which the State DOH held, by telephone, on July 30, 1996, and continued in Mrs. Jackson's home on November 26 r 1996 and January 6, 1998. DSS appeared only at the first hearing
hUr"\·/i\\f,-\!W lpJ(i<:: r:omirf'<::p;lrr:hiretrieve? m=fc2afh9dfl7(1) ~I(' 'i ft'd 7 'i90R041 ea3b4a& fmts

Case 1 -cv-09551 Document 3 Filed 01 Gel a Document - by Citation ~OO f',;. Y. [\:lisc. LEX[S 139

Page 129 134

,jate, and relied solely [*5] on documentary evidence. Mrs. Jackson submitted a supplemental Physician's Certification form from Dr. Eberle, detailing the many risks that Mrs. Jackson would face, if she were placed in a nursing home, and explaining that the lack of the personal attention that she requires would cause her health to deteriorate and result In
a diminution of her ability to perform ADLs. Mrs. Jackson testified on her own behalf, as did
her home attendant of six years and the Director of Social Services in her building. In addition, Mrs. Jackson submitted other documentary evidence.
The State DOH's Hearing Decision, dated April 15, 1998, affirmed DSS's decision to discontinue personal care and to refer Mrs. Jackson for nursing home placement. After quoting the relevant statutes, the decision concluded that:

the record substantiates the conclusion of the local medical director. The record contains no basis for concluding that placement is contraindicated for the AppelJant, as contended by the Appellant' physician and Appellant's
Representative. The record substantiates a finding that the Appellant, who has
serious functional limitations, need for assistance with all basic personal care, including [*6] at night, and, no informal caregivers, would not be contraindicated for appropriate care in a residential health care facility.

The decision does not address the questions petitioner raises as to whether the nursing home would provide adequate care. Nor does the decision refer to any evidence presented or relied upon.

''-1rs. Jackson agreed to accept sleep-in care to avoid nursing home placement, on condition that she waived no rights to appeal the fair hearing deciSion and have the split-shift reinstated if the sleep-in care proved inadequate. By mid-July 1998, it was apparent that the sleep-in care was inadequate because of the frequency with which Mrs. Ja.ckson needed attention during the night. The split-shift care was reinstated when this Court granted a temporary restraining order.
Petitioner Florence Rubin

On May 1S, 1996, petitioner Florence Rubin submitted a Medical Request for Home Care consisting of chores and personal care services 24 hours a day. Mrs. Rubin had been receiving such services for several years prior to this request. Mrs. Rubin suffers from chest pain, shortness of breath, hypertension, multiple sclerosis{ arthritis, dizziness, congestive heart [*7] failure, syncope, transient ischemic attacks, cardiovascular accident, deafness, weakness and a peptic ulcer. The nursing assessment dated June 4, 1996 said that Mrs. Rubin was alert and oriented, hard of hearing, right leg amputated, wheelchair-bound and required total care in all areas of ADLs, as well as constant safety monitoring. The social (~ssessment did not recommend personal care services. Mrs. Rubin's physician indicated on the form that Mrs. Rubin's ADLs would not diminish if she were placed in an RHCF, but also checked off all the activities (apparently indicating that those activities would diminish with slich placement). Mrs. Rubin contends that the form was erroneously filled out by her physician.

The l.MD found that Mrs. Rubin requires continuous personal care services, that the cost of

slich care far exceeds 90% of the cost of an RHCF and that Mrs. Rubin does not meet any of

the statutory exceptions. On October 18, 1996, a Notice of Decision to Discontinue Personal

Care Services (Fiscal Assessment), stating that home care services would be discontinued as

of November 1, 1996, was sent to Mrs. Rubin. The notice set forth the computations of the

cost of her care [*8] and the average cost of an RHCF in her district and that Mrs. Rubin

did not meet any of the statutory exceptions.

~-~E~X~H~IB~IT--

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Case 1 -cv-09551 Document 3 Filed 01

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-:-l1e StdLe DOH helel a fil/r heanng on November 14, 199G Lhdt continued on April 14, 1998. Hrs. Rubln"s doctor submitted a letter In which he stated UlclL tvlrs. Rubin must be turned every two hours_ DUring a recent hospital stay, she was not turned and an ulcer developed in only two days. Mrs. Rubin is also unable to use a catheter and requires constant diaper changes throughout the night and day. She has had many flap surgeries and, If the surgery area is not kept extremely clean, she develops infections easily. Her leg amputation resulted from the lack of proper decubitus care and improper turnmg and positioning. Trained personnel must transfer Mrs. Rubin between bed and chair for limited periods several times a clay on a wooden board. The doctor also stated that Mrs. Rubin has lived in her apartment for 46 years and that her daughter and grandchildren live nearby and visit her often. She also 90es shopping and sits in the park with neighbors and friends. The doctor concluded that ~1rs. Rubin needed a great deal of individual round-the-clock attention, that she could not (*9] get in an RHCF, and that she would incur medical problems if taken out of her home and neighborhood.

Mrs. Rubin testified on her own behalf, as did her daughter, Annabelle Waldman, and her long-time home attendant. They testified about her need for one-on-one assistance roundthe-clock and the importance of her independence in choosing her activities, shopping and meal planning. Mrs. Rubin goes out daily to meet with friends, sit in the park, and visit with family members, including her older sister.

The fair hearing decision, dated June 19, 1998, found that placement of Mrs. Rubin in an RHCF was not contraindicated and that statutory exception four did not apply. The decision states that the physician's letter does not imply that the care which Mrs. Rubin needs cannot be adequately provided at an RHCF.

Petitioner Cla. rice Sa. non
Petitioner Clarice Sanon submitted a Medical Request for Home Care to DSS's Home Care Services Program on March 14, 1996. She, too, has received services for several years. Mrs. Sanon is a 79-year-old widow who lives with her daughter, Myriamme Sanon, and suffers from dementia, hypertension, depression and anxiety, as well as occasional disorientation [* 10] and agitation. Mrs. Sanon speaks only French and Creole and eats only creole food. She will accept food only from her daughter or from a home attendant whom she has grown to know and trust. Mrs. Sanon will not allow strangers to touch her and will refuse to eat and become agitated when confronted by strangers. The nursing assessment found Mrs. Sanon to be alert but disoriented, prone to wandering, incontinent of bladder and bowel, verbally abusive and physically assaultive. The assessment recommended continuing current care, while noting that this care does not comply with the fiscal assessment. On the M-28u form, (Vlrs. Sanon's physician stated that her ability to perform ADLs would not diminish as a result of placement in an RHCF.

The LMD, in a report dated September 6, 1996, set forth his opinion that Mrs. Sanon requires continuous care services and that her health and safety cannot be ensured through the provision of home care services. The LMD also found that the cost of continuous home care services exceeds 90% of the cost of an RHCF, that Mrs. Sanon is not an appropriate candidate for any other services, and that she does not meet any of the exceptions. On September 10,1996, DSS [*11] sent a Notice of Decision to Discontinue Personal Care Services to Mrs. Sanon, along with a copy of the assessment.

A fair hearing was held on August 4, 1997 and continued on February 10, 1998. Mrs. Sanon

was represented by her daughter, Myriamme Sanon. The fair hearing deciSion, dated April 7,

0

1998, found that placement in an RHCF was not contraindicated and that DSS's decision was f- "'1'

!-B(!J correct. In an affirmation dated July 15, 1998, Mrs. Sanon's physician recants his earlier
:z:: o~lnion Cln::] Q("II:es that Mrs. Sanon's ADLs would diminish If sh.? were placed ~n a ntlrsing

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Case 1:01-cv-09551 Document 3 Filed 01

Page 131 134

hOml!. Mrs. Sanon, through legal counsel, s01l9ht ufl<;LJcccssfully to reopen the hearing, dfter which she Initiated thiS proceeding.

DISCUSSION

Pespondents contend that the questions raised Hl these proceedmgs are substantial eVidence que~;tlons, and, therefore, that the court must transfer these proceedings to the Appellate [)Iw;ion. CPLR 7804(g). While a number of Issues raised in the petitions are substantial
evidence questions, not all can be so categorized. Petitioners also challenge respondents' failure to comply with the ADA. +Where a petition raises questions which could terminate the proceeding, [*12] other than substantial evidence, the IAS court must address them. G&(;
Shops, Inc. v New York c;ity("pn f34, 193 A.O.2d 405, 597 N.Y.S.2d 65; QI,!50 v Kralik, 216 A.D.2d 297, qf]JIJ__ 'C_S. . .£d 749...<. Thus, this court must address the applicability of the ADA to
respondents' determinations.

1i'congress passed the ADA in an effort to combat discrimination against people with
clisabilities and to provide integration into the economic and social mainstream of American
'=. . life for these individuals_ Hillen I!QLOario, 46 F.3d 325 (3d Or), cert denied sub nom
Pennsylyq.ni9$~(;[~.t?!'[)('.9LPub. Wfffar£;. v..IcJeIl S., 516 U.s. 813, 1.331".~9,_2,d_2J~.,.HG.S, q.
64, citing S. Rep. No 116, 20: H.R.Rep. No 485(II), 50. It is undisputed that all three petitioners are disabled within the meaning of the statute.

'{'One of the objectives for individuals with disabilities, the statute states, is independent living. 42 USC § 12101(a)(8), +Ihe ADA directs the Attorney General to promulgate regulations necessary to implement the Act. 42 USC § 12134(a). These regulations are
entitled to substantial deference. [*13] @l.L}J!1I{~a.C:Qn, 4.51_U.s ....l~1L...l±LJ2 L. Ed. 2d 728, 1Q2 $,_ <;:1,.2Js'!2J1982) ..
'1:ADA regu lation 28 CFR 35 .130(d) provides that " [a J public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." +Ihis regulation is virtually identical to the section 504 integration regulation of the Rehabilitation Act in effect since 1981. Because Congress approved the earlier regulation by mandating that the ADA regulations be patterned after the section 504 regulations, 28 CFR 3S.130(d) has the force of law. Helen 1..,.. v Q(QC}[iof suprq, at
~32.

DSS contends that the ADA does not apply to petitioners' situations because petitioners

cannot demonstrate that they are being treated differently from non-disabled people. +While

this analysis is appropriate when comparing services provided to both disabled and non-

disabled people (see, AIf!>'<il.f]9.f~.r y {:h.Qate, 469 U.S. 287, 83 L. Ed. 2d 661, ~QS S. Ct. 712), it

does not apply to services provided only to disabled individuals, who seek compliance with

the integration mandate of the regulations. In fact, in Cercpg,t;;,."!_H.e..?lLth and HosQ, CO..aL(14?

F.3d 165), [* 14] upon which DSS rei ies, the Second Ci rcu it specifically declined to address

the issue of integration.

'

'.."

More recently, the United States Supreme Court addressed this issue in Q!m~t~gJLv.I,,!r;· gX

reI. Zimring (527 V.. S... ~131._U9S.Q. 2176, 144 L. Ed. 2d 540 [1999}). The Supreme Court

specifically rejected the State's position +'that, in order to constitute discrimination, a party

11--- must demonstrate that he or she was treated differently from similarly situated individuals.
119 S. Ct. at 2186. The Supreme Court noted that "+Congress explicitly identified unjustified 'segregation' of persons with disabilities as a 'form of discrimination. II. [d. at 2187. Even

before this decision, many courts required agencies to provide services in the most

0

integrated setting feasible. See, Helen L. v OiDario, supra; Kathleen 5. v Department of Pub.

'<I'

Welfare of the CQrnmQnw.e_i#th of PennsylviJnla, 10 F. Supp. 2d 460 (ED Pa 1998); Messier v !::: IJ..l

Southbury Tri,Jining Sch90L1999 U.s. Dlst. LEX[S 1479, F. Supp. 2d ,1999.WL 20910 (0 Conn 1999); Cramer v Chiles, 33 F. Sl!;)~l.~d 1342, (SO Fla 1999); Williams v·

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Case 1 -cv-09551 Document 3 Filed 01

Page 132 134

Was;eunan, 9)7 F. Supp. 524 (0 Md 199G); [*'15] Cable v Department of De v Servs. of the 5tcik ofCaJifornia, 973 F. Supp. 937 (CO Cal 1997); Charles Q. v HO(lstoun, 1996 U.S. Olsl. LEX[S 21671,1996 WL 447549 (MO Pa t996). Olmstead dispelled any continuing uncertainty with respect to this issue, and It is now clear that +the ADA mandates in tegra tion .

..-The ADA provides an affirmative defense to a violation of this requirement if a defendant

proves that making a modification would fundamentally alter its service or program. See, 28

CFR 35.130(b)(7); Alexander v Choate, supra. In order to establish this affirmative defense,

the defendant must prove that the requested relief would alter the essential nature of the

program or impose an undue burden or hardship in light of the overall program. Q(m.!it~aqy

L. C. ex rel.Z(m(i[lg,.5upra.; W;WC!m~ v Wasserman, SlJpra; Easley Py Ff1:;fey v Snigi!3L_3.Q

f ..3d 297,:?9S (3d Cir.l~2ql ..... .

..

. .

In Olmstead, the United States Supreme Court addressed the issue of what constitutes a fundamental alteration of a service or program. The Court rejected the Circuit Court of . Appeals' construction of the reasonable-modification regulation. The [*16] Court of Appeals would have required the District Court to assess the reasonableness of each mental health care recipient'S request when measured against the entire mental health budget of the State. Thus, the inquiry would have been whether the cost of providing Jackson, Rubin and Sanon with home care services would be unreasonable given the demands of the State's overall Medicaid budget.

The Supreme Court concluded that this standard is too restrictive of a state'sability to maintain a range of services and to administer services with an even hand. Instead, the SupremeCourt stated the ~tandardasfollows:

"

+'
In evaluatinga State's fundamental-alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of:

providing community-based care to the litigants, but also the range of services

the State provides others with mental disabilities, and the State's obligation to

mete out those services equitably.

C){m5tf!<;JQ v L. C. ex reI. Zimring, 119 S. Ct.__QJ.2l11S.. The focus is, therefore, not only on the
impact on the State's budget of providing the services, but also on the competing demands
of others requlring services [*17] and the State's available resources. [d.; RQ!!iJ.Od 1.': Celluccj, J.91 F.R.D. 3, 15, 2000 WL 60927. at *14 (D Mass 2000).

The Appellate Division, First Department, touched upon the issue of the applicability of the J!l,DA to the state's provision of services under Medicaid in Egan vQ~f2yonoJ£S~J\,.Q,2.d 4~ 1588 N. Y.S.. ;Z.Q_J1ll.. In that case, the First Department unanimously affirmed the determination of DOH that petitioner was no longer eligible for 24-hour in-home personal care services. Nter concluding that the respondents did not violate petitioner's due process rights, the Appellate Division stated that, although the petitioner had pled a cognizable claim under the ADA, "+a State's obligation 'to pr:ovide appropriately integrated services is not absolute as the ADA does not require that [a State] make fundamental alterations in its [Medicaid]
program. '" £9. at 41~,. Respondents maintain that the Egan decision is dispositive here.

J:nitially, it should be noted that Egan was decided before Olmstead. Therefore, if there is any conflict, the requirements set forth in Olmstead must prevail.

Egan recognizes that a petitioner can [* 18] set forth a cognizable claim for continuing personal care services at home under the ADA, but that integrated services are not an

xIm-C)

><
W

Case 1 -cv-09551 Document 3 Filed 01

Page 133 134

"

absolute requirement. This merely states the standard to use and is 10 accordance with ttlC Supreme Court's decision in Ormstead. While the First Department rejected the petitioner's ADA claims in Egan, the deCision does not reveal the basIs for that rejection. Nor does the decision discuss whether respondents' procedures complied with ADA reqUirements. Thus, the decision in Egan does not mandate a finding that respondents complied with the ADA in these proceedings.
DSS contends that the adoption of a requirement that home care be continued will substantially alter or modify the State's Medicaid program. However, there is no indication in the record that any factual inquiry took place here with regard to the application of the ADA to petitioners' applications. DSS merely alleges that the public would be required to pay for 24-hour personal care services whenever the Medicaid recipient "prefers" home care. DSS does not, however, dispute the fact that 24-hour home care is a service already provided by Medicaid! and that DSS did not consider what [*19] would be the most integrated setting in reaching its determination. Nor has DSS demonstrated that there would be a "massive" change in the program.
Before that determination can be made, DSS must demonstrate what the cost of such an UndE!rtaking would be with respect to the system as a whole and not just the comparative
cost with respect to the individual. Olmstead v L. C. by Zimring, supra; H.t:;.!l1fL'=, Y. PiOa,rio,
SUP[9:,. Further, any other costs that have not been addressed r but that can be substantiated, should also be considered. For exampler petitioners have alleged that there are increased hospitalization costs incurred when people are placed in RHCFs compared to hospitalization for those receiving home care. If petitioners can prove those costs, pSS llJust take them into account in determining whether providing care in the most integrated setting would amount to a fundamental change in the services provided. See, Olmstead. U9.S,.,J;t. at 218.9... ' ' . Accordingly, +respondents must address the reqUirements of the ADA in considering the provision of services. Unless respondents can demonstrate that accommodating Medicaid reCipients who otherwise qualify for 24-hour home care [*20] would result in a fundamental alteration in the Medicaid programr respondents must provide services in "the most integrated setting appropriate to the needs of" petitioners. 28 CFR 3S.130(d); [d.
The parties have brought a number of recent cases to the Court's attention that arguably
could affect this court's decision. In KUPRflr.$.mi..th..v.QQwJjng.e~.3__N_.Y..2d 90,988 N.Y.s.2d 96,
710 N.E.2d 66Q)., the Court of Appeals addressed the issue of whether an agency must consider a physician's estimate in determining the number of hours of home care services that a recipient requires. The Court of Appeals determined that the agency need not consider the physician's recommendation because the determination relies on more than just a medical determination. This is not an issue in these proceedings because all parties agree that petitioners require constant care. To the extent that Kuppersmith may have some bearing on substantial evidence questions petitioners also raise, this court need not address the deciSion because those issues are for the Appellate Division. CPLR 78Q4(g).
[n RgdrjgyezX City ofNeW\(Qrk, (197 f.}Q 61lt the Second Circuit' [*21] Court of Appeals
addressed the application of the ADA to the provision of services under Medicaid. The plaintiffs sought to have their home health care services expanded to include safety monitoring, so that they could remain in their homes. In that case, the Second Circuit determined that the ADA did not apply to the plaintiffs, because they were seeking services that IVJedicaid did not provide, i.e., safety monitoring. Thus r the issue was not where to provide services, as in Olmstead, but which services to provide. At barr there is no question that lVJedicaid provides the services petitioners seek. The question, as in Olmstead, is where _ - - I-espondents must provide those services. Consequently, Rodriguez does not affect the outcome in this matter.
l'1itcht;11 \I E)arnos-Paoli (25) A.D.2d 281,6.~7 N,Y.S.2d 319) is a case involving workfare recipients' challenge of workfare's failure to accommodate their disabilities. The Fir-st

Case 1 -cv-09551 Document 3 Filed 01 (jet a Document - by Citation ~UUN. Y. Mise. lTX[S [3<)

Page 134 134 Page !() of t t

"
.~ ,,:: ,1

Department held that the reCIpients were entitled to notice and an opportunity for a hearing

on their right to contest the appropriateness of their work placements. Petitioners maintain

that this is analogous to their claim that they are [*22] entitled to notice and an

opportunity for a hearing on the appropriateness of any particular nursing home placement.

This position is without merit. [n Mitchell, the respondents conceded that workfare recipients,

who were acknowledged to be employable only within certain limitations, were entitled to

challenge medically inappropriate assignments. Thus, the petitioners were not seeking to

ueate a right. The challenge concerned respondents' failure to adequately advise the

recipients of how to protect their rights without endangering either their benefits or their

health. The holding in Mitchell does not, however, create any new right for either the

petitioners in that proceeding or foi- the petitioners here.'

.'

'.

P,etitioners raise a number of due process claims regarding the appropriateness of the State's
forms, the appropriateness of the particular RHCF selected, and adequacy of the notice
supplied to the petitioners informing them of the specific basis on which respondents denied continued home care. Petitioners make many allegations of impropriety with respect to the application of Mrs. Sanon, \'\tho did not know that her physician had filled out the .M-28u form
saying that her ADLs [*23] wouldnotbeadversely affected. Inasmuch as this court is·' .
sl~ttin9 aside the determinations of DSS in order to enable DSS to consider the requirements of the ADA, it is unnecessary to decide these issues.

Accordingly, it is hereby

ORDERED AND ADJUDGED that so much of this court's order dated February 17, 2000 as dismissed the petition of Florence Rubin as moot because she was believed to be deceased, shall be and hereby is vacated upon her, counsel's advice that Mrs. Rubin is still living. It is further

ORDERED AND ADJUDGED that the petitions are granted as follows:

1) The determination of respondent New York City Human Resources Administration, dated May 6, 1996, to discontinue personal care services to Ena Jackson and to refer her to a residential health care facility is vaca~ed~ln.d. annuUed and the rtlatter is remanded to respondent to reassess petitioner Jackson's entitlement to continued personal care services lil~ht of the requirements of the Americans with Disabilities Act.

2} The determination of respondent New York City Human Resources Administration, dated October 18, 1996, to discontinue personal care services to Florence Rubin and to refer her to a residential health [*24] care facility is vacated and annulled and the matter is remanded to respondent to reassess petitioner Rubin's entitlement to continued personal care services in light of the requirements of the Americans with Disabilities Act.

3} The determination of respondent New York City Human Resources Administration, dated September 10, 1996, to discontinue personal care services to Clarice Sanon and to refer her to a rE!sidential health care facility is vacated and annulled and the matter is remanded to respondent to reassess petitioner Sanon's entitlement to continued personal care services in 1i9ht of the requirements of the Americans with Disabilities Act; and it is further

The foregoing constitutes the decision and judgment of this court, copies of which have been provided to the parties before filing.

Dated: February 25, 2000 KARLA MOSKOWITZ, J. 5. C.

EXHIBIT
u G
~
sF-g. 4Q of 40

 </s> Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 1 of 61

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI, Guardian, on )

Behalf of Eric Radaszewski,

)

)

Plaintiff,

)

)

v.

)

)

BARRY S. MARAM, Director of the

)

Illinois Department of Healthcare

)

and Family Services,

)

)

Defendant.

)

No. 01 C 9551 Judge John W. Darrah Magistrate Judge Ian Levin

DEFENDANT’S RESPONSE TO PLAINTIFF’S MEMORANDUM REGARDING ENFORCEMENT OF SETTLEMENT AGREEMENT

INTRODUCTION

On September 23, 2005, Plaintiff, by her attorneys, reported to Magistrate Judge Levin

that settlement had been reached. (Civil Docket, 01 C 9551, Document 45). Pursuant to the

settlement, which had been negotiated up to and agreed upon immediately prior to walking into the Magistrate Judge’s courtroom on September 23rd, Defendant’s counsel drafted a final version

of a Settlement Agreement and General Release (“Settlement Agreement”) that fully and

accurately reflected all terms of the settlement. Plaintiff does not claim the Settlement

Agreement is inaccurate; rather, she wants previously agreed upon terms changed. By letter

dated October 18, 2005, Plaintiff’s counsel tried to renegotiate matters (which she had expressly

accepted as agreed) concerning waiver of sovereign immunity, a forum for enforcement, and the

confidentiality clause.

After the Magistrate Judge terminated the referral upon settlement, this Court set the

matter for status hearing on November 3, 2005. (Civil Docket, 01 C 9551, Document 47). After

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 2 of 61
the parties appeared at the November 3rd status hearing, the Court entered an order continuing status to December 6, 2005, “for either presentation of dismissal order or scheduling for trial.” (Civil Docket, 01 C 9551, Document 48).
At the December 6, 2005 status hearing on the settlement, one of Plaintiff’s counsel, Mr. Eliot Abarbanel, portrayed the case as “settled” but for some items, including an enforcement mechanism. Senior Assistant Attorney General John E. Huston informed the Court that agreement had been reached on all issues and that Plaintiff had reneged on her agreement. The Court ordered the parties to brief the issue of the enforcement of the Settlement Agreement. (Civil Docket, 01 C 9551, Document 49). Specifically, the Court expressed interest in whether the Illinois Court of Claims, which has exclusive jurisdiction to hear and determine claims against the State founded upon any contract entered into with the State, could provide Plaintiff with an effective forum for enforcement of the Settlement Agreement.
The terms in the Settlement Agreement and General Release Defendant tendered to Plaintiff subsequent to the September 23rd Magistrate Judge’s status hearing accurately reflect the agreements reached and reported to the Magistrate Judge. (Civil Docket, 01 C 9551, Document 45). Plaintiff now tries to persuade this Court to impose terms onto the settlement that Defendants did not and could not agree to. As will be shown below, Plaintiff has an adequate means of enforcing the Settlement Agreement. Consequently, this Court should decline to impose any further terms on Defendant, and should dismiss this action pursuant to the Agreed Order of Dismissal.
FACTS Between the period of April 27, 2005 and September 23, 2005, the parties engaged in a series of settlement conferences with Magistrate Judge Ian Levin, pursuant to this Court’s
2

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 3 of 61
referral order of October 27, 2004. Throughout the settlement process, Plaintiff pressed for the retention of jurisdiction by the federal court to enforce any settlement the parties reached. Defendant steadfastly rejected the proposal that the federal court retain jurisdiction to enforce an agreement to settle this action and would not agree to any order that retained jurisdiction in the District Court. Plaintiff could not persuade Magistrate Judge Levin that the federal court should retain jurisdiction. Magistrate Judge Levin told the parties that the federal court would not retain jurisdiction. Plaintiff then abandoned her position that the federal court should retain jurisdiction to enforce the agreement, and pressed for other mechanisms, including the state’s administrative processes and retention of jurisdiction by the Circuit Court of DuPage County, Illinois. The DuPage County Circuit Court case, Radaszewski v. Maram, 00 CH 1474, consists only of statelaw claims which this Court remanded after the Defendant removed the DuPage County case to federal court. See Radaszewski v. Garner, 2002 WL 31430325 (N.D. Ill. Oct. 21, 2002). On the counts remanded to DuPage County Circuit Court, the court awarded judgment on the pleadings for the Defendant. The Plaintiff appealed. The appellate court reversed and remanded the case finding that the Plaintiff should be allowed to prove facts at trial contesting the Department’s rulemaking activities under the State’s Administrative Procedure Act. After remand, the only issue before the DuPage County Circuit Court involves the Department’s rulemaking under state law. The Plaintiff’s Motion to Reinstate the DuPage County case after remand is pending, subject to the Defendant’s objections to reinstatement.
During the period settlement discussions took place with the Magistrate Judge, the parties discussed enforcement of the agreement and the state’s sovereign immunity. At all times, Defendant’s discussion strictly conformed to the Illinois Attorney General’s General Settlement Agreement and Release. According to office policy, the format and language of a number of
3

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 4 of 61
provisions, including language stating that sovereign immunity is not waived and language requiring dismissal of the action with prejudice, is mandatory and is not subject to negotiation. A copy of the Attorney General’s General Settlement Agreement form is attached hereto as Exhibit A. Since confidentiality is a provision of the Settlement Agreement and the terms of the Settlement Agreement relating to the specifics of the funding of services to Mr. Radaszewski are not in dispute, Defendant does not feel it appropriate to submit the Settlement Agreement with the agreed upon terms. Rather, Defendant will illustrate the agreements the parties reached by referring the Court to Exhibit A, and disclosing such facts about the substantive agreements that do not run afoul of the confidentiality provision. Defendant is willing to submit the Settlement Agreement and all correspondence to this Court for an in camera review.
The parties, through their counsel, met outside Magistrate Judge Levin’s courtroom prior to the status hearing on September 23, 2005 to discuss substantive terms of the settlement. The parties reached agreement on all elements of the settlement. In addition to the agreement on the substantive relief, Senior Assistant Attorney General John E. Huston and Assistant Attorney Christopher Gange also discussed the issues of enforcement, confidentiality and sovereign immunity with counsel for Plaintiff, Ms. Sarah Megan and Mr. Eliot Abarbanel. Ms. Megan and Mr. Abarbanel specifically agreed to entry of a Settlement Agreement that: 1) did not retain jurisdiction in the federal court to enforce the Settlement Agreement; 2) kept the provisions concerning non-waiver of the state’s sovereign immunity; and 3) kept the Settlement Agreement’s confidentiality provisions. At the status hearing on settlement on September 23, 2005, Plaintiff’s counsel, Ms. Megan and Mr. Abarbanel, informed the Magistrate Judge that the case had settled. All that remained was drafting an agreement for signature incorporating a newly accepted substantive provision concerning a cap on the number of hours of payment for
4

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 5 of 61
private duty in-home nursing. The Magistrate Judge promptly issued a minute order noting settlement of the case and terminating the referral for settlement. (Civil Docket, 01 C 9551, Document 45).
On October 4, 2005, counsel for Defendant drafted and mailed to Plaintiff’s counsel a letter and draft Settlement Agreement accurately incorporating the terms of the settlement for approval and signature. That Settlement Agreement, except for Paragraph 1, included the terms contained in the General Settlement Agreement at Exhibit A.1 In general, settlement in cases defended in federal court by the Illinois Attorney General’s Office that do not involve class actions, such as the present case, are effected by the General Settlement Agreement. By its terms, the Settlement Agreement cannot be entered as an order of the court nor filed with the court. Exhibit A, ¶ 11. The Settlement Agreement contemplates that the parties will submit an Agreed Order of Dismissal With Prejudice to the Court. Exhibit A, ¶ 6.
Since the relief provided to Plaintiff here is reimbursement for an agreed upon number of private duty in-home registered nursing services and reimbursement for additional hours up to a specified maximum on a showing of medical need, it is simply an agreement for the payment of money from the State of Illinois. The General Settlement Agreement is designed for just those circumstances. Exhibit A. The parties to this case merely amended and tailored Paragraph 1 of the Settlement Agreement to fit the circumstances of Mr. Radaszewski’s care. There is no provision in the Settlement Agreement negotiated by the parties that changes the terms or operation of the Medicaid program or any Departmental policies.
1 The portions of Paragraph 1 of the Settlement Agreement material to this case call for the Department to: 1) continue to pay for private duty in-home registered nursing services for a certain number of hours; and 2) pay for an increase in such nursing hours not to exceed a certain cap upon a demonstration of “medical necessity.”
5

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 6 of 61
In addition, the Settlement Agreement may not be modified without the written agreement of the parties and the Illinois Attorney General. Exhibit A, ¶ 10. The Settlement Agreement contains a provision that Plaintiff may not disclose the terms and conditions of the Settlement Agreement to anyone. Exhibit A, ¶ 11. Finally, the Settlement Agreement states that it shall not be construed as a waiver of the state’s sovereign immunity. Exhibit A, ¶ 12.
On October 18, 2005, after Defendant tendered the Settlement Agreement described above, Plaintiff’s counsel sent a letter to Defendant’s counsel that tried to renegotiate matters that Plaintiff had previously expressly accepted as agreed. Among other things, the October 18th letter wanted the Defendant to waive sovereign immunity, agree that enforcement of the Settlement Agreement would be in the Circuit Court of DuPage County, and waive the confidentiality clause. Plaintiff and her counsel have refused to sign the Settlement Agreement.
The parties have appeared before this Court twice on status. After the November 3, 2005 status hearing, counsel for Plaintiff orally attempted to renegotiate terms of the Settlement Agreement to which they had previously agreed. Defendant’s counsel informed Plaintiff’s counsel that those matters were previously agreed upon, and renegotiation would not be entertained.2 By order of this Court, entered December 6, 2005, the parties were directed to file briefs on the enforcement issue. (Civil Docket, 01 C 9551, Document 49).
Plaintiff filed her Memorandum Regarding Enforcement of Settlement Agreement on January 10, 2006, hereinafter “Pltf’s Memorandum of Law.” (Civil Docket, 01 C 9551, Document 50). Plaintiff analyzed four possible enforcement mechanisms and rejected three of those methods. Despite the fact that Plaintiff now seeks to reinstate the case in DuPage County,
2 The parties continued to tweak than language of the substantive portion of the Settlement Agreement, at Paragraph 1, up to November 30, 2005. On that date, Defendant mailed to Plaintiff’s counsel a final draft of the Settlement Agreement that incorporated those minor changes to Paragraph 1. The matters negotiated concerning Paragraph 1 in October and November, 2005 are not in dispute.
6

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 7 of 61
Plaintiff concluded that the only viable enforcement mechanism was to have this Court retain jurisdiction for purposes of enforcing the Settlement Agreement. (Id. at, p. 10). Since Plaintiff is repudiating state administrative procedures and the retention of jurisdiction in the Circuit Court of DuPage County, Illinois, Defendant’s response will only address two of the mechanisms discussed by Plaintiff: 1) the Illinois Court of Claims, and 2) retention of jurisdiction by the United States District Court.
ARGUMENT I. THE ILLINOIS COURT OF CLAIMS HAS EXCLUSIVE JURISDICTION
TO ENFORCE THE SETTLEMENT AGREEMENT. IN ADDITION, THE ILLINOIS COURT OF CLAIMS COULD AFFORD COMPLETE RELIEF. As a general rule, settlement agreements in lawsuits brought in federal courts are contracts subject to enforcement in state courts. Kokkonen v Guardian Life Ins. Co. of America, 511 U.S. 375, 381-382, 114 S. Ct. 1673, 1677 (1994); Jessup v. Luther, 277 F.3d 926, 928 (7th Cir. 2002). The Illinois Constitution of 1970 abolished the doctrine of sovereign immunity “[e]xcept as the General Assembly may provide by law.” Ill. Const. 1970, art. XIII, § 4. A copy of this portion of the Illinois Constitution is attached hereto as Exhibit B. Pursuant to its constitutional authority, the Illinois General Assembly reestablished sovereign immunity in the State Lawsuit Immunity Act. 745 ILCS 5/0.01 et seq. A copy of this statute is attached hereto as Exhibit B City of Springfield v. Allphin, 74 Ill.2d 117, 123, 23 Ill.Dec. 516, 384 N.E.2d 310 (1978). A copy of this opinion is attached hereto as Exhibit D. Section 1 of that enactment states that “[e]xcept as provided in [an act] to create the Court of Claims * * * the State of Illinois shall not be made a defendant or party in any court.” 745 ILCS 5/1. The Court of Claims Act, in turn, provides that the Court of Claims shall have exclusive jurisdiction over “[a]ll claims against the
7

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 8 of 61
State founded upon any contract entered into with the State of Illinois.” 705 ILCS 505/8(b). A copy of this statute is attached hereto as Exhibit E. PHL, INC. v. Pullman Bank and Trust Co., 216 Ill.2d 250, 836 N.E.2d 351, 356-57 (2005). A copy of this opinion is attached as Exhibit F.
Since the Settlement Agreement is a contract between a private party and the State of Illinois (the Director of the Illinois Department of Healthcare and Family Services, in his official capacity), the Illinois Court of Claims has exclusive jurisdiction over any claim based on the Settlement Agreement. 705 ILCS 505/8(b). Contrary to Plaintiff’s claims, at pp. 6-9, of her Memorandum of Law, the Court of Claims would afford Plaintiff a complete remedy.
Plaintiff’s conclusion that the Illinois Court of Claims “would not serve as a means of enforcement in this case” (Pltf’s Memorandum of Law at p. 6) is based on the wrong election of remedies and a misunderstanding of the Settlement Agreement.
Under the substantive terms of the Settlement Agreement at Paragraph 1, Defendant agreed to, first, “provide reimbursement for a service plan of care . . . consisting of up to “xxx” hours of private in-home registered nurse (“RN”) services . . . .” The Settlement Agreement is very clear that the Defendant is providing reimbursement for registered nursing services, and not actually providing the nursing services. Reimbursement for services is by its very nature monetary, and a failure to properly reimburse is remedied by an award of money damages in the Court of Claims. A-Reliable Auto Parts & Wreckers, Inc. v. The State of Illinois, 54 Ill. Ct. Cl. 455, 2001 W.L. 34677738, *1 (Ill. Ct. Cl. 2001). A copy of this opinion is attached as Exhibit G. In no other forum could Plaintiff be awarded money damages. Consequently, there is no need to address any remedy Plaintiff might seek that included injunctive relief or specific performance.
Second, as stated previously at footnote 1, Defendant agreed, additionally, under the substantive terms of Paragraph 1 of the Settlement Agreement to make reimbursement for an
8

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 9 of 61
additional number of nursing hours up to a maximum cap upon Plaintiff’s showing of medical necessity. Were Defendant to breach the agreement to increase the number of nursing hours to the cap limit, the Court of Claims would have jurisdiction to declare the Defendant in breach of the Settlement Agreement on the basis of the evidence of medical need submitted. In cases cited by Plaintiff, (Pltf’s Memorandum of Law at p. 7), the Court of Claims has consistently ruled that it has jurisdiction to render a declaratory judgment and/or award monetary damages if appropriate. A-Reliable Auto Parts & Wreckers, Inc. v. The State of Illinois, 54 Ill. Ct. Cl. 455, 2001 W.L. 34677738, *1 (Ill. Ct. Cl. 2001); Ace Coffee Bar, Inc. v. The University of Illinois, 51 Ill. Ct. Cl. 395, 1999, W.L. 33246477, *2 (Ill. Ct. Cl. 1999). A copy of this opinion is attached hereto as Exhibit H. Simply stated, if Defendant were to breach either prong of the substantive portions of Paragraph 1 of the Settlement Agreement, the Plaintiff’s remedy is an action for monetary damages against the State of Illinois. The only forum for that relief under the authorities cited on pages 7 through 9 of this Response is the Illinois Court of Claims. By bringing the appropriate claims in the Illinois Court of Claims, Plaintiff has a forum to seek an adjudication/remedy for an alleged breach of the Settlement Agreement. Johnson v. Board of Trustees of the University of Illinois, 2003 WL 22117778, *2 (N.D. Ill.). A copy of this opinion is attached hereto as Exhibit I. The Illinois Court of Claims affords effective and complete relief. II. THE COURT HAS NO AUTHORITY TO PLACE CONDITIONS ON A
VOLUNTARY DISMISSAL UNDER FRCP 41(a)(1). THE DEPARTMENT OF HEALTHCARE AND FAMILY SERVICES AND ITS DIRECTOR, IN HIS OFFICIAL CAPACITY, ARE THE STATE OF ILLINOIS AND CANNOT AGREE TO THE RESERVATION OF JURISDICTION BY THIS COURT TO ENFORCE SETTLEMENT. In Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S. Ct 1673 (1994), the Supreme Court held that when a district court simply dismisses a claim under FRCP 41(a)(1)(ii),
9

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 10 of 61
“by filing a stipulation of dismissal signed by all the parties who have appeared in the action and causes the dismissal to be with prejudice, if the stipulation so specifies,” “jurisdiction of the court over disputes arising out” of that agreement is not implied. Id. at 114 S.Ct. 1673, 1675 (1994). Instead, because enforcement of the Settlement Agreement “is more than just a continuation or renewal of the dismissed suit,” the district court must require its own basis for jurisdiction. Id. at 1675-76; Johnson v. Board of Trustees of the University of Illinois, 2003 WL 22117778, *2 (N.D. Ill.).
On September 23, 2005, Plaintiff agreed to settlement of this action and her counsel so announced to Magistrate Judge Levin. Such settlement expressly reserved the State’s sovereign immunity, and did not reserve jurisdiction in the federal court to enforce the agreement. Plaintiff then repudiated her obligation to enter and sign the Settlement Agreement and General Release that accurately reflected the agreement of the parties. See King v. Walters, 190 F.3d 794 (7th Cir. 1999). Instead, she now comes to this Court, and requests that the Court impose a condition on the Settlement Agreement that Defendant never agreed to, will not now agree to, and that Plaintiff abandoned during the settlement process after the condition had been rejected by Magistrate Judge Levin.
Plaintiff concedes that state officials cannot by their actions waive sovereign immunity since waiver is solely within the province of the Illinois General Assembly. (Pltf’s Memorandum of Law at p. 6). However, Plaintiff now asks this Court to impose this condition on Defendant. (Pltf’s Memorandum of Law at p. 10).
A court has no authority to disapprove or place conditions on a dismissal under FRCP 41 (a)(1). Republic of the Philippines v. Westinghouse Electric Corporation, 43 F.3d 65, 81 n. 21 (3rd Cir. 1994); Gardiner v. A.H. Robbins Co., 747 F.2d 1180, 1190 (8th Cir. 1984). This is
10

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 11 of 61
especially true where both parties agreed to the terms of dismissal (no waiver of sovereign immunity and no retention of federal jurisdiction for enforcement). Plaintiff’s action in refusing to sign the Settlement Agreement can only be deemed to be judge shopping, since at the settlement conferences Magistrate Judge Levin told Plaintiff that the federal court would not retain jurisdiction, and Plaintiff agreed to settlement without retention of federal jurisdiction. Plaintiff should not be rewarded for her attempt to take a second bite from the apple. In any event, Defendant objects to this Court placing any conditions on the Settlement Agreement. Defendant cannot agree to any conditions that this Court might impose at Plaintiff’s belated request.
Finally, Plaintiff’s conduct in agreeing to settlement and then attempting to renegotiate the terms of the settlement, both informally by correspondence to Defendant’s counsel and by her litigation before this Court, has a chilling effect on the settlement process. There is no incentive to negotiate a “settlement” and then have to litigate what has already been explored, rejected, and already settled. See King v. Walters, 190 F.3d 794 (7th Cir. 1999). Plaintiff’s case of “settler’s remorse” should be dealt with by simply requiring Plaintiff to live up to her agreement. See King v. Walters, 190 F.3d 794 (7th Cir. 1999). Any other ruling simply encourages a party to agree to one thing to the Judge presiding over the settlement conferences, and then attempt to get what the party wanted all along from another Judge. Such a process wastes the parties’ and court’s time and resources, discourages the resolution of cases through the mechanisms usually utilized in the District Court, and calls into question the sincerity of the representations made during the settlement conferences. The Court should admonish parties to cases in the District Court that conduct such as Plaintiff’s will not be condoned by enforcing the Settlement Agreement against the Plaintiff.
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Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 12 of 61
WHEREFORE, for the reasons stated above, Defendant requests that this Court: 1) deny Plaintiff’s request that the federal court retain jurisdiction for purposes of enforcement of the settlement agreement; 2) enforce Plaintiff’s agreement to settle this matter on the terms embodied in the Settlement Agreement and General Release tendered to Plaintiff on November 30, 2005; and 3) enter the Agreed Order of Dismissal With Prejudice.
Respectfully submitted, LISA MADIGAN Attorney General State of Illinois By: /s/ John E. Huston___________________________ KAREN KONIECZNY #1506277 JOHN E. HUSTON #3128039 CHRISTOPHER GANGE #6255970
Assistant Attorneys General 160 N. LaSalle Street, Suite N-1000 Chicago, IL 60601 (312) 793-2380 DATED: February 10, 2006
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Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 13 of 61
EXHIBIT A
13

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 14 of 61
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION (Case Caption)
SETTLEMENT AGREEMENT AND GENERAL RELEASE
This Settlement Agreement and General Release, (“Agreement”), is made and entered into by and between the Plaintiff (full name), (hereinafter “Plaintiff”), and the Defendants (full names) (hereinafter “Defendants”).
RECITALS
WHEREAS, the Plaintiff filed this lawsuit in the United States District Court for the Northern District of Illinois, Eastern Division, entitled (Case Title), Number (Case Number), (hereinafter referred to as “Action”) alleging violations of rights protected by statute(s), regulation(s), common law, the Constitution of the State of Illinois and/or the Constitution of the United States;
WHEREAS, the Defendants deny the allegations and deny any statutory, common law, constitutional or regulatory violations, and affirmatively state that the Plaintiff has failed to state a claim upon which relief can be granted; and
14

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WHEREAS, so as to avoid further expense and in recognition of the positions of the parties to the above case, the parties wish to settle and compromise the pending Action, thereby terminating this litigation;
IT IS HEREBY AGREED, by and between the parties as follows:
1. In consideration for the full and complete settlement of this claim, the Plaintiff shall receive the payment of the sum of (written amount) ((numeric amount)) payable from appropriations made to the Indemnification Fund administered by the Illinois Department of Central Management Services pursuant to the State Employee Indemnification Act. 5 ILCS 350/0.01 et seq. The amount payable under this Agreement shall be subject to state laws governing the State Comptroller’s obligation to withhold funds that the Plaintiff may owe to other persons or to state agencies. The Plaintiff may contest the validity of these claims through applicable state procedures.
2. It is expressly agreed that the Defendants in their individual capacities shall not be responsible for payment of any sum under this Agreement.
3. It is further understood and agreed that the above tendered consideration is not to be construed as an admission of any liability therefore, such liability having been expressly denied. No inducements or representations have been made by any agent or attorney of any party hereby released as to the legal liability or other responsibility of any party claimed responsible, and it is agreed that this release applies
15

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to known or unknown injuries, costs, expenses and/or damages alleged to have been suffered or incurred by the Plaintiff due to the actions or inactions of the Defendants as stated in the Plaintiff’s complaint(s) filed in the Action, and is intended to be a full and complete disposition of the entire claim(s) and/or cause(s).
4. The Plaintiff, his heirs, successors and assigns, agrees to release, and hereby releases and forever discharge the Defendants in their individual and official capacities, the Illinois Department of (agency name) and the State of Illinois, their agents, former and present employees, successors, heirs and assigns and all other persons (hereinafter “Releasees”) from all actions, claims, demands, setoffs, suits, causes of action, controversies, disputes, equitable relief, compensatory and punitive damages, costs and expenses which arose or could have arisen from the facts alleged or claims made in the Action, which the Plaintiff owns, has or may have against the Releasees, whether known or unknown, from the beginning of time until the effective date of this Agreement, including but not limited to those at law, in tort (including actions under 42 U.S.C. Section 1983) or in equity.
5. The Plaintiff and his attorney release, waive and relinquish any claims or rights to attorney’s fees, expenses and costs allegedly incurred or due in the Action pursuant to 42 U.S.C. Section 1988, or under any other statute, rule or common law provision.
16

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6. The parties agree that the Action shall be dismissed with prejudice and without attorney’s fees, costs or expenses by submitting a fully executed Stipulation to Dismiss to the Court for entry of an order reflecting said dismissal within ten (10) days of full execution of this Agreement.
7. No promise has been made to pay or give the Plaintiff any greater or further consideration other than as stated in this Agreement. All agreements, covenants, representations and warranties, express or implied, oral or written, of the parties hereto concerning the subject matter of this Agreement are contained in this Agreement. No other agreements, covenants, representations or warranties, express or implied, oral or written, have been made by any party hereto to any other party concerning the subject matter of this Agreement. All prior and contemporaneous negotiations, possible and alleged agreements, representations, covenants and warranties, between the parties concerning the subject matter of this Settlement Agreement are merged into this Settlement Agreement. This Agreement contains the entire agreement between the Parties.
8. The Plaintiff enters into this Agreement as a free and voluntary act with full knowledge of its legal consequences. The Plaintiff has not relied on any information or representations which are not contained in this Agreement.
9. This Agreement shall be construed and interpreted in accordance with the laws of the State of Illinois, without regard to principles of conflict of laws.
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10. This Agreement may not be changed, modified or assigned except by written agreement of the Plaintiff, the Illinois Department of (agency name) and the Illinois Attorney General.
11. The Plaintiff shall not file this Agreement in any court or disclose to anyone the terms and conditions of this Agreement, and all terms otherwise discussed in settlement negotiations or any particulars thereof, except as is necessary to enforce the terms of this Agreement or except as expressly required by law. Upon inquiry, the Plaintiff shall simply state that these matters were settled to the satisfaction of the parties.
12. This Agreement shall not be construed to constitute a waiver of sovereign immunity of the State of Illinois or (agency name).
13. If any provision of this Agreement is declared invalid or unenforceable, the balance of this agreement shall remain in full force and effect.
14. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all counterparts so executed shall constitute one agreement binding on the parties hereto, notwithstanding that all of the parties are not signatory to the same counterpart.
18

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 19 of 61 AGREED:

Plaintiff

Date

Counsel for Plaintiff

Date

On behalf of Defendants Title:

Date
General Settlement Agreement Rev. 7/05

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EXHIBIT B

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 21 of 61
WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED CONSTITUTION OF THE STATE OF ILLINOIS ARTICLE XIII. GENERAL PROVISIONS
§ 4. Sovereign Immunity Abolished Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.
Current through 4/1/2005
© 2005 Thomson/West

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EXHIBIT C

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 23 of 61
WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED CHAPTER 745. CIVIL IMMUNITIES
ACT 5. STATE LAWSUIT IMMUNITY ACT 5/0.01. Short title
§ 0.01. Short title. This Act may be cited as the State Lawsuit Immunity Act.
Current through P.A. 94-726 of the 2005 Reg. Sess.
5/1. Immunity of State as defendant or party in court
<Text of section as amended by P.A. 93-414>
§ 1. Except as provided in the Illinois Public Labor Relations Act, [FN1] the Court of Claims Act, [FN2] or Section 1.5 of this Act, the State of Illinois shall not be made a defendant or party in any court.
[FN1] 5 ILCS 315/1 et seq.
[FN2] 705 ILCS 505/1 et seq.
5/1.5. Exceptions; State employees
§ 1.5. Exceptions; State employees.
(a) An employee, former employee, or prospective employee of the State who is aggrieved by any conduct or action or inaction of the State that would constitute a violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621 et seq., as amended, if committed by an employer covered by that Act may bring an action under the Age Discrimination in Employment Act of 1967 against the State in State circuit court or federal court.
(b) An employee of the State who is aggrieved by any conduct or action or inaction of the State that would constitute a violation of the Fair Labor Standards Act of 1938, 29 U.S.C. 201 et seq., as amended, if committed by an employer covered by that Act may bring an action under the Fair Labor Standards Act of 1938 against the State in State circuit court or federal court.
(c) An employee, former employee, or prospective employee of the State who is aggrieved by any conduct or action or inaction of the State that would constitute a violation of the Family and Medical Leave Act, 29 U.S.C. 2601 et seq., as amended, if committed by an employer covered by that Act may bring an action under the Family and Medical Leave Act against the State in State circuit court or federal court.
(d) An employee, former employee, or prospective employee of the State who is aggrieved by any conduct or action or inaction of the State that would constitute a violation of the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., as amended, if committed by an employer covered by that Act may bring an action under the Americans with Disabilities Act of 1990 against the State in State circuit court or federal court.
(e) An employee, former employee, or prospective employee of the State who is aggrieved by any conduct or action or inaction of the State that would constitute a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., as amended, if committed by an employer covered by that Act may bring an action under Title VII of the Civil Rights Act of 1964 against the State in State circuit court or federal court.
Current through P.A. 94-726 of the 2005 Reg. Sess.
© 2005 Thomson/West

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EXHIBIT D

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Supreme Court of Illinois. The CITY OF SPRINGFIELD et al., Appellees,
v. Robert H. ALLPHIN, Director of Revenue, et al.
Appeal of Robert H. ALLPHIN. No. 49897.
Oct. 6, 1978. Rehearing Denied Jan. 25, 1979.
City and unincorporated association of state municipalities sought declaratory judgment that bill, which reduced Department of Revenue's service charge for collection of municipal retailers' occupation taxes and municipal service occupation taxes from four to two percent of taxes collected, became effective on day that governor's veto was overridden and sought to have Director of Department of Revenue, state treasurer, and state comptroller ordered to refund excess service charge to plaintiff. The Circuit Court, Sangamon County, Byron E. Koch, J., entered judgment declaring effective date of bill and dismissed count for failure to state cause of action, and plaintiffs appealed. The Appellate Court, Fourth Judicial District, 50 Ill.App.3d 44, 8 Ill.Dec. 11, 365 N.E.2d 249, reversed and remanded with directions, and Director of Revenue appealed. The Supreme Court, Clark, J., held that bill was effective on date when governor's veto was overridden, rather than on the following July 1st.
Affirmed as modified and remanded with directions.
West Headnotes
[1] Courts 472.1 106k472.1 Most Cited Cases Action wherein city and unincorporated association of state municipalities sought declaratory judgment that bill, which reduced Department of Revenue's service charge for collection of municipal retailers' occupation taxes and municipal service occupation taxes from four to two percent of taxes collected, became effective on date governor's veto was overridden and sought to have Director of Department of Revenue, state treasurer and state comptroller ordered to refund excess service charge to plaintiff was not action against state which could only have been brought in the court of claims. S.H.A. ch. 127, § 801.
[2] Courts 472.1 106k472.1 Most Cited Cases Where issue is whether a state officer has refused to

disburse appropriated funds according to law, and relief sought is injunction directing that those funds be released in accordance with appropriation, action is not one against the state required to be brought in court of claims. S.H.A. ch. 127, § 801.
[3] States 191.10 360k191.10 Most Cited Cases
(Formerly 360k191(2)) Where action is, in effect, one to quiet title in realty, adverse to interest of state, where there is no issue as to lawfulness of state officer's actions in obtaining title, action is against the state. S.H.A. ch. 127, § 801.
[4] Taxation 2871 371k2871 Most Cited Cases
(Formerly 371k604) Taxpayer's failure to avail himself of extensive statutory procedures which exist for protection of taxpayer's interest may constitute a waiver of his rights against the state.
[5] States 123 360k123 Most Cited Cases Framers of 1970 Constitution did not intend the requirement that all "payments from public funds" be made "only as authorized by law" as a limitation upon powers of circuit courts to fashion appropriate remedies. S.H.A.Const.1970, art. 8, § 1(b).
[6] Statutes 248 361k248 Most Cited Cases Date on which a bill "becomes a law" need not coincide with date on which that law becomes effective. S.H.A.Const.1970, art. 4, § 10.
[7] Statutes 255 361k255 Most Cited Cases Effective date of law which was subject of simple, nonamendatory veto would be time of its final legislative action prior to presentation to the governor. S.H.A. ch. 131, § § 21-23; S.H.A.Const.1970, art. 4, § § 9, 10.
[8] Courts 89 106k89 Most Cited Cases A well-reasoned opinion of the Attorney General is entitled to considerable weight in resolving a question of first impression in state regarding construction of Illinois statute; however, such opinions are not binding upon the court.
[9] Statutes 255 361k255 Most Cited Cases

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Effective date of public act which reduced Department of Revenue's service charge for collection of municipal retailers' occupation taxes and municipal service occupation taxes from four to two percent of taxes collected would be day on which second house overrode the governor's veto, rather than on the following July 1st. S.H.A.Const.1970, art. 4, § § 9(c), 10; S.H.A. ch. 24, § § 8-11-1, 8-115; ch. 131, § 21 et seq. **311 *120 ***517 Thomas R. Meites, Sp. Asst. Atty. Gen., Chicago, for appellants.
Frank M. Pfeifer and Thomas W. Kelty, Pfeifer & Kelty, P. C., and Fredric Benson, Corp. Counsel, Springfield, for appellees.
CLARK, Justice:
This case involves several aspects of the relationship between Illinois municipalities, which may impose certain taxes, and the State of Illinois, whose agents collect those taxes and distribute to the municipalities the revenue therefrom. Because of the complex nature both of that relationship itself, and of the role of the courts Vis-a-vis that relationship, we deem it necessary to set forth the facts of the dispute in some detail.
Plaintiff city of Springfield is an Illinois municipality *121 which has, pursuant to sections 811-1 and 8-11-5 of the Illinois Municipal Code (Ill.Rev.Stat.1973, ch. 24, pars. 8-11-1, 8-11-5), enacted a municipal retailers' occupation tax and a municipal service occupation tax (Municipal Code of Springfield, secs. 41.33 through 41.39). Plaintiff Illinois Municipal League is an unincorporated association of Illinois municipalities. (See Ill.Rev.Stat.1973, ch. 24, par. 1-8-1.) It apparently is conceded that some or all of the league's member municipalities also have enacted such taxes. (For convenience, the city and the league's member municipalities hereinafter will be referred to collectively as "plaintiffs" or "plaintiff municipalities.")
Defendant Robert Allphin was the Director of Revenue at the institution of this cause and, as such, was the officer in charge of the Illinois Department of Revenue. (See Ill.Rev.Stat.1973, ch. 127, par. 4.) The Department is empowered to collect the municipal retailers' occupation tax and the municipal service occupation tax on behalf of plaintiffs. (Ill.Rev.Stat.1973, ch. 24, pars. 8-11-1, 8-11-5.) In doing so, the Director was empowered to enforce plaintiffs' ordinances. (Ill.Rev.Stat.1973, ch. 127, par. 39b1.) After collecting the tax, the Department was

required to "forthwith pay over to the State Treasurer, ex officio, as trustee, all taxes and penalties collected." (Ill.Rev.Stat.1973, ch. 24, pars. 8-11-1, 811-5.) On or before the 25th day of each calendar month, the Department was required to certify to the State Comptroller the amount of money payable to plaintiffs, as determined according to a statutory formula. The formula calls for the State's retention of a specified percentage of the amount otherwise payable to plaintiffs, to compensate the State for the cost of collecting and administering the tax. Within 10 days of the receipt of the Director's disbursement certification, the State Comptroller must draw orders for the disbursement of plaintiffs' share and for the deposit of the State's share into the General Revenue Fund. Ill.Rev.Stat.1973, ch. 24, pars. 8-11-1, *122 811-5.
Public Act 78-1255 reduced the State's share from 4% To 2%. The central issue in this case is whether the Act became effective on December 5, 1974, or on July 1, 1975. The Director claims that the Act did not become effective until the latter date. Accordingly (with an exception not relevant here), during the period December 5, 1974, through June 30, 1975, he followed the old formula and certified that the larger amount be withheld by the State, and a correspondingly smaller amount be disbursed to plaintiffs.
**312 ***518 Plaintiffs, however, claim that the Act became effective on the earlier date, and that in the interim (between December 5 and June 30) the Director wrongfully certified that the higher amount be withheld, resulting in the State's wrongfully withholding about $3 million from the plaintiff municipalities. In count I of their first amended complaint, plaintiffs sought a declaratory judgment (see Ill.Rev.Stat.1973, ch. 110, par. 57.1) that the Act became effective on the earlier date. In counts II through IV plaintiffs seek reimbursement from funds currently being collected by the State. (The pleadings, however, do not precisely describe the funds to be placed into the protest fund. E. g., count II, paragraph 11, refers to "tax revenues presently being collected," and count III, paragraph 10, refers to "sales tax receipts presently being collected.")
Defendants moved to dismiss the amended complaint, arguing (1) that the Act did not become effective until the later date, and, alternatively, (2) even if the Act became effective on the earlier date, the circuit court was without power to grant the relief requested. The circuit court granted judgment for defendants as to count I and dismissed counts II through IV.

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On appeal, the Appellate Court, Fourth District, reversed as to count I (agreeing with plaintiffs' position on the effective date of the Act). As to counts II through IV, *123 the appellate court in effect vacated the circuit court's judgment, and remanded the cause to permit plaintiffs to amend their pleadings to pray for an alternative remedy suggested by the appellate court. (50 Ill.App.3d 44, 50-51, 8 Ill.Dec. 11, 365 N.E.2d 249. We granted defendant Allphin's petition for leave to appeal. We affirm the judgment of the appellate court as to count I, modify the judgment as to the remaining counts, and remand the cause to the circuit court. (For convenience, we will continue to refer to "defendants" even though the defendant Treasurer and the defendant Comptroller no longer are parties and have taken no position on the merits, promising instead that they will perform whatever ministerial acts are necessary to enforce the decree.)
[1] We postpone discussion of the effective date of the Act until we have addressed defendants' other arguments. Defendants first contend that the circuit court was without power to grant the requested relief because this action was, in effect, a suit against the State, and as such only could have been brought in the Court of Claims. (See Ill.Rev.Stat.1973, ch. 127, par. 801.) We disagree. The drafters of our 1970 constitution considered the question of sovereign immunity to suits against the State in some detail. (See generally 2 Record of Proceedings, Sixth Illinois Constitutional Convention 871 (hereinafter cited as Proceedings); 3 Proceedings 1829-45.) In the end, the drafters adopted language permitting the General Assembly to reenact sovereign immunity. "Though our constitution of 1970 abolished sovereign immunity (Ill.Const. 1970, art. XIII, sec. 4) it was restored by the General Assembly, as the Constitution permitted." (Department of Revenue v. Appellate Court (1977), 67 Ill.2d 392, 394, 10 Ill.Dec. 536, 537, 367 N.E.2d 1302, 1303.) Thus, the net effect of the legislature's response to the "sovereign immunity" provisions of the 1970 Constitution must be viewed as an adoption of the law as it existed under the 1870 *124 Constitution. Yet even under the 1870 Constitution, the instant action would not be considered a suit against the State.
"[2][3] Whether or not a particular action falls within the prohibition of the constitution has not been determined solely by an identification of the formal parties to the record. The determination has rather depended upon the particular issues involved and the relief sought." (Moline Tool Co. v. Department of

Revenue (1951), 410 Ill. 35, 37, 101 N.E.2d 71, 72.) Where the issue is whether a State officer has refused to disburse appropriated funds according to law, and the relief sought is an injunction directing that those funds be released in accordance with the appropriation, the action is not one against the State. (County of Cook v. Ogilvie (1972), 50 Ill.2d 379, 383, **313 ***519 280 N.E.2d 224.) This is because "(t)he presumption obtains that the State, or a department thereof, will not, and does not, violate the constitution and laws of the State, but that such violation, if it occurs, is by a State officer or the head of a department of the State, and such officer or head may be restrained by a proper action instituted by a citizen." (Schwing v. Miles (1937), 367 Ill. 436, 44142, 11 N.E.2d 944, 947.) On the other hand, where the action is, in effect, one to quiet title in realty, adverse to the interest of the State (where there is no issue as to the lawfulness of a State officer's actions in obtaining title), the action is against the State. Schwing v. Miles (1937), 367 Ill. 436, 11 N.E.2d 944. See also Georgeoff v. State (1965), 32 Ill.2d 534, 538, 207 N.E.2d 466.
More difficult are some of the cases involving suits by taxpayers seeking refunds of disputed taxes. In Montgomery Ward & Co. v. Stratton (1930), 342 Ill. 472, 477, 174 N.E. 547, the taxpayer availed itself of a statutory remedy of paying a disputed tax under protest (which temporarily prohibited the deposit of the disputed amount into the State treasury), but then failed to pursue the case in the manner provided by the statute. Instead the taxpayer sought to reduce its future taxes by the disputed amount. This court *125 held that the taxpayer was barred from "obtain(ing) indirectly what it could not obtain directly" (a refund from the State treasury). (342 Ill. 472, 477, 174 N.E. 547, 550.) However, there is some ambiguity in the opinion, as to whether its holding was based upon constitutional grounds, or merely an equitable one, I. e., waiver. Our research has revealed no subsequent decision of this court relying upon Montgomery Ward in support of the broad proposition for which it is advanced by defendants that the Constitution bars one from obtaining indirectly what one could not obtain directly.
Adams v. Nudelman (1940), 375 Ill. 217, 30 N.E.2d 742, is of limited applicability here, because its applicability has been narrowed substantially in subsequent decisions of this court. In Adams, taxpayers filed suit for a refund of taxes which had not been paid under protest and, consequently, already had been paid to the State treasury. Plaintiffs sought relief either out of the State treasury, or out of funds currently being collected by the State and not

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yet deposited in the treasury. This court held (1) that the suit was against the State, and, alternatively, (2) that no relief could be had without a legislative appropriation. (375 Ill. 217, 219, 30 N.E.2d 742.) However, almost immediately, in People ex rel. Swartchild & Co. v. Carter (1941), 376 Ill. 590, 594, 35 N.E.2d 64, and People ex rel. Adams v. McKibben (1941), 377 Ill. 22, 24, 35 N.E.2d 321 the court narrowed Adams second alternative holding, limiting it to the prevention of payments directly from the State treasury, and refusing to apply it to court or administrative orders which had the effect of withholding funds from the State treasury. A decade later, in Moline Tool Co. v. Department of Revenue (1951), 410 Ill. 35, the court also narrowed Adams first alternative holding, stating that "a proceeding to review the determination of an agency of State government which, itself, has the force of a judicial determination" is not a suit against the State. 410 Ill. 35, 38, 101 N.E.2d 71, 73.
*126 While Moline Tool was a proceeding under the Administrative Review Act (Ill.Rev.Stat.1949, ch. 110, par. 264 Et seq.), its applicability is not confined to such cases. (E. g., E. H. Swenson & Son v. Lorenz (1967), 36 Ill.2d 382, 385, 223 N.E.2d 147.) The Swenson case also is particularly significant in that, like the instant case, it involved a claim that a State department wrongfully directed that certain funds be withheld from plaintiffs. This court rejected defendants' claim that, because the burden of any declaratory judgment would fall upon the State, the action was one against the State, and therefore barred by sovereign immunity. Rather, the court intimated that the action was, in essence, a review of the legality of the defendants' withholding of funds from plaintiffs, and as such was not a suit against the State. Significantly, the court capped its analysis by observing: "We think that the basic nature of the plaintiffs' claim **314 ***520 is not altered by the circumstance that in this case the Department * * * was able to resort to self-help * * *." 36 Ill.2d 382, 385, 223 N.E.2d 147, 149.
[4] Our review of the foregoing cases leads us to conclude that the issues involved in the instant case (the effective date of a statute) and the relief requested (a declaratory judgment and the withholding of certain funds from the State treasury) do not render the instant case a suit against the State. That the relief requested necessarily will have an impact on the State's General Revenue Fund is not dispositive. As in Swenson, defendants' resort to "self-help," in ordering the deposit of the disputed funds into the State's General Revenue Fund does not prohibit the courts from fashioning an appropriate

form of relief. The cases relied upon by defendants for the contrary proposition (E. g., Adams v. Nudelman; Montgomery Ward & Co. v. Stratton ), to the extent they remain viable, involve the ancient and much-litigated adversary relationship between the taxpayer and the tax collector. Extensive statutory procedures exist for the protection of the taxpayer's *127 interest in an orderly fashion which also will protect the State's interest. A taxpayer's failure to avail himself of such procedures may constitute a waiver of his rights against the State. (See, E. g., S.A.S. Co. v. Kucharski (1972), 53 Ill.2d 139, 142, 290 N.E.2d 224.) The instant case, however, involves the fiduciary relationship between the State government's central tax-collection authorities, and local governments who would be, in practical effect, at the mercy of those authorities if there were no equitable means to remedy unlawful actions of State officers. Neither our constitution nor any act of the General Assembly contemplates that State officers be given such unlimited power.
[5] Finally, contrary to defendants' position, the framers of our 1970 constitution apparently did not intend the requirement that all "payments from public funds" be made "only as authorized by law" (Ill.Const.1970, art. VIII, sec. 1(b)) as a limitation upon the powers of the circuit courts to fashion appropriate remedies. (See 2 Proceedings 871 (colloquy of delegates Kamin and Cicero).) (None of the foregoing, however, is intended to address limitations imposed upon the judicial power of the United States by the eleventh amendment to the United States Constitution. (Cf. Edelman v. Jordan (1974), 415 U.S. 651, 668, 94 S.Ct. 1347, 1358, 39 L.Ed.2d 662, 675-76.) There might well be a difference between a State's amenability to suit in State and Federal court. See, E. g., McDonald v. Illinois (7th Cir. 1977), 557 F.2d 596.)
[6] We now turn our attention to the merits of the underlying dispute. Our constitution directs the General Assembly to "provide by law for a uniform effective date for laws passed prior to July 1 of a calendar year," and further provides that bills "passed after June 30 shall not become effective prior to July 1 of the next calendar year unless the General Assembly by the vote of three-fifths of the members elected to each house provides for an earlier *128 effective date." (Ill.Const.1970, art. IV, sec. 10.) It therefore is important not to confuse the date on which the bill "becomes a law" with the date on which that law becomes effective; the two need not coincide.
To execute its responsibilities under section 10 of

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article IV, the legislature enacted and the Governor approved "An Act in relation to the effective date of laws" (Ill.Rev.Stat.1971, ch. 131, par. 21), which provided as follows:
"A law passed prior to July 1 of a calendar year and after June 30, 1971, shall become effective on October 1 following its becoming a law unless by its terms it specifically provides for a different effective date. A law passed prior to July 1, 1971, shall become effective on July 1, 1971, or upon its becoming a law, whichever is later, unless such law by its terms specifically provides for a different effective date." In People ex rel. Klinger v. Howlett (1972), 50 Ill.2d 242, 278 N.E.2d 84, this court held that a bill which had been the subject of an amendatory veto by the Governor (see Ill.Const.1970, art. IV, sec. 9(e)) did not "pass" **315 ***521 for purposes of the foregoing constitutional and statutory provisions until the legislature had approved the Governor's specific recommendations. The court reasoned that "passage" meant "the last legislative act necessary so that the bill would become law upon its acceptance by the Governor without further action by the legislature" (50 Ill.2d 245, 247, 278 N.E.2d 87), and that the approval of the Governor's recommended amendments to the language previously adopted by the legislature was such a legislative act, before which no bill may be said to have "passed" (50 Ill.2d 245, 247-48, 278 N.E.2d 84).
[7] Subsequent to the 1972 decision in People ex rel. Klinger v. Howlett, the legislature passed and the Governor approved "An Act to revise the law in relation to the effective date of laws * * * " (1973 Ill.Laws 196, Ill.Rev.Stat.1973, ch. 131, pars. 21 through 26), which, Inter alia, provided that "(f)or purposes of determining the effective *129 dates of laws, a bill is 'passed' at the time of its final legislative action prior to presentation to the Governor pursuant to paragraph (a) of Section 9 of Article IV of the Constitution" (Ill.Rev.Stat.1973, ch. 131, par. 23). We need not and we do not decide whether this new statutory definition of "passage" is constitutional and, if so, what impact, if any, it has upon the effective date, as determined according to Klinger, of laws which have been subject to an amendatory veto. (But see Gherardini, Effective Date of Laws, 11 J.Mar.J.Prac. & Proc. 363, 375 (1978).) The instant case involves only the question of the effective date of a law which had been the subject of a simple, nonamendatory veto, and we hold that, in this situation, the new statutory provision accurately codifies our interpretation of the constitutional provision.

Public Act 78-1255, which did not contain an effective date, originally passed in the General Assembly (as Senate Bill 265) on May 29, 1974. The Governor vetoed the bill on July 26, 1974; the Senate voted by the requisite three-fifths majority to override the veto on November 21, 1974, and the House did the same on December 5, 1974, on which date the bill became a law. (See Ill.Const.1970, art. IV, sec. 9.) Thus, the question presented is whether, for purposes of section 10 of article IV (Ill.Const.1970, art. IV, sec. 10) and section 1 of "An Act in relation to the effective date of laws" (Ill.Rev.Stat.1975, ch. 131, par. 21), Senate Bill 265 "passed" at the time of its initial passage by the General Assembly. We conclude that it did.
Unlike the override of an amendatory veto, the override of a simple nonamendatory veto does not involve any additional "legislative act" (50 Ill.2d 242, 247, 278 N.E.2d 84), as that term is used in Klinger, because the original language of the bill remains intact, and no additional time need lapse to assure that the public has adequate notice of that language. Rather, the situation here is analogous to that in *130 Board of Education v. Morgan (1925), 316 Ill. 143, 147 N.E.34 (construing Ill.Const.1870, art. IV, sec. 13), where a bill passed by the General Assembly prior to July 1 and approved by the Governor subsequent to July 1 was, for purposes of determining its effective date, held to have "passed" prior to July 1. In determining the effective date of an act, we see no reason to treat the legislature's override of the Governor's simple veto any differently than the Governor's signature. Each has the same effect on the contents of the enactment and the public's notice thereof. To the extent that the purpose of determining the effective date of an act according to the date of its passage is to afford the public adequate notice of the contents of the enactment (see, E. g., 6 Proceedings 1390), actions which similarly affect the contents should have a similar effect upon their effective date. To the extent that the constitutional provision is intended as a check upon the year-round drafting of laws by the legislature (see, E. g., 4 Proceedings 2900-03), that intent also is in no way undermined by our holding today.
[8][9] Although it is true that the Constitution itself uses the term "passes" to describe the legislature's override of the Governor's veto as well as the legislature's **316 ***522 initial passage of a bill (Ill.Const.1970, art. IV, sec. 9(c)), that usage is not dispositive of the meaning of the term in the different context of section 10 of article IV. (Cf. generally Chapman v. County of Will (1973), 55 Ill.2d 524, 304 N.E.2d 287.) We find additional support for this

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conclusion in an opinion of the Attorney General (1975 Ill.Atty.Gen.Op. 77) regarding the effective date of Public Act 78-1257, which has a legislative history similar to the act at issue here. As the appellate court correctly noted (50 Ill.App.3d 44, 47, 8 Ill.Dec. 11, 365 N.E.2d 249), a well-reasoned opinion of the Attorney General is entitled to considerable weight in resolving a question of first impression in this State regarding the construction of an Illinois statute (People v. Simpkins (1977), 45 Ill.App.3d *131 202, 207, 3 Ill.Dec. 969, 359 N.E.2d 828; Alsen v. Stoner (1969), 114 Ill.App.2d 216, 222, 252 N.E.2d 488; Strat-O-Seal Manufacturing Co. v. Scott (1966), 72 Ill.App.2d 480, 485, 218 N.E.2d 227; City of Champaign v. Hill (1961), 29 Ill.App.2d 429, 442, 173 N.E.2d 839; see generally Scott, The Role of Attorney General's Opinions in Illinois, 67 Nw.U.L.Rev. 643, 649-53 (1972)), though, of course, such opinions are not binding upon this court (People v. Savaiano (1976), 66 Ill.2d 7, 16, 3 Ill.Dec. 836, 359 N.E.2d 475; Rogers Park Post No. 108 v. Brenza (1956), 8 Ill.2d 286, 292, 134 N.E.2d 292). Accordingly, we hold that Public Act 78-1255 became effective on December 5, 1974, the day on which the second house overrode the Governor's veto.
Finally, because we hold that the remedy requested by plaintiffs was an appropriate one, we need not reach the merits of the alternative remedy suggested

by the appellate court. We do direct, however, that, upon remand, the circuit court grant plaintiffs leave to amend their complaint to define more precisely the tax revenue from which the plaintiffs may obtain reimbursement. The relief requested should be amended to limit the funds from which each plaintiff municipality may obtain relief to the municipal retailers' occupation tax revenues and municipal service occupation tax revenues subsequently collected by the Director on its behalf. The net effect of such relief should be to reduce the amount of such taxes withheld by the State until the earlier overwithholding is compensated for.
For the foregoing reasons, the judgment of the appellate court is affirmed, as modified, and the cause is remanded to the circuit court with directions to proceed in accordance with the views expressed in this opinion.
Affirmed as modified; cause remanded, with directions.
KLUCZYNSKI, J., took no part in the consideration or decision of this case.
74 Ill.2d 117, 384 N.E.2d 310, 23 Ill.Dec. 516
END OF DOCUMENT

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EXHIBIT E

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Formerly cited as IL ST CH 37 ¶ 439.8
WEST'S SMITH-HURD ILLINOIS COMPILED STATUTES ANNOTATED CHAPTER 705. COURTS COURT OF CLAIMS ACT 505. COURT OF CLAIMS ACT
505/8. Court of Claims jurisdiction
§ 8. Court of Claims jurisdiction. The court shall have exclusive jurisdiction to hear and determine the following matters:
(a) All claims against the State founded upon any law of the State of Illinois or upon any regulation adopted thereunder by an executive or administrative officer or agency; provided, however, the court shall not have jurisdiction (i) to hear or determine claims arising under the Workers' Compensation Act [FN1] or the Workers' Occupational Diseases Act, [FN2] or claims for expenses in civil litigation, or (ii) to review administrative decisions for which a statute provides that review shall be in the circuit or appellate court.
(b) All claims against the State founded upon any contract entered into with the State of Illinois.
(c) All claims against the State for time unjustly served in prisons of this State where the persons imprisoned shall receive a pardon from the governor stating that such pardon is issued on the ground of innocence of the crime for which they were imprisoned; provided, the court shall make no award in excess of the following amounts: for imprisonment of 5 years or less, not more than $15,000; for imprisonment of 14 years or less but over 5 years, not more than $30,000; for imprisonment of over 14 years, not more than $35,000; and provided further, the court shall fix attorney's fees not to exceed 25% of the award granted. On December 31, 1996, the court shall make a one-time adjustment in the maximum awards authorized by this subsection (c), to reflect the increase in the cost of living from the year in which these maximum awards were last adjusted until 1996, but with no annual increment exceeding 5%. Thereafter, the court shall annually adjust the maximum awards authorized by this subsection (c) to reflect the increase, if any, in the Consumer Price Index For All Urban Consumers for the previous calendar year, as determined by the United States Department of Labor, except that no annual increment may exceed 5%. For both the one-time adjustment and the subsequent annual adjustments, if the Consumer Price Index decreases during a

calendar year, there shall be no adjustment for that calendar year. The changes made by Public Act 89689 apply to all claims filed on or after January 1, 1995 that are pending on December 31, 1996 and all claims filed on or after December 31, 1996.
(d) All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit, and all like claims sounding in tort against the Medical Center Commission, the Board of Trustees of the University of Illinois, the Board of Trustees of Southern Illinois University, the Board of Trustees of Chicago State University, the Board of Trustees of Eastern Illinois University, the Board of Trustees of Governors State University, the Board of Trustees of Illinois State University, the Board of Trustees of Northeastern Illinois University, the Board of Trustees of Northern Illinois University, the Board of Trustees of Western Illinois University, or the Board of Trustees of the Illinois Mathematics and Science Academy; provided, that an award for damages in a case sounding in tort, other than certain cases involving the operation of a State vehicle described in this paragraph, shall not exceed the sum of $100,000 to or for the benefit of any claimant. The $100,000 limit prescribed by this Section does not apply to an award of damages in any case sounding in tort arising out of the operation by a State employee of a vehicle owned, leased or controlled by the State. The defense that the State or the Medical Center Commission or the Board of Trustees of the University of Illinois, the Board of Trustees of Southern Illinois University, the Board of Trustees of Chicago State University, the Board of Trustees of Eastern Illinois University, the Board of Trustees of Governors State University, the Board of Trustees of Illinois State University, the Board of Trustees of Northeastern Illinois University, the Board of Trustees of Northern Illinois University, the Board of Trustees of Western Illinois University, or the Board of Trustees of the Illinois Mathematics and Science Academy is not liable for the negligence of its officers, agents, and employees in the course of their employment is not applicable to the hearing and determination of such claims.
(e) All claims for recoupment made by the State of Illinois against any claimant.
(f) All claims pursuant to the Line of Duty Compensation Act. [FN3]
(g) All claims filed pursuant to the Crime Victims Compensation Act. [FN4]

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(h) All claims pursuant to the Illinois National Guardsman's Compensation Act. [FN5] (i) All claims authorized by subsection (a) of Section 10-55 of the Illinois Administrative Procedure Act [FN6] for the expenses incurred by a party in a contested case on the administrative level.
[FN1] 820 ILCS 305/1 et seq. [FN2] 820 ILCS 310/1 et seq. [FN3] 820 ILCS 315/1 et seq. [FN4] 740 ILCS 45/1 et seq. [FN5] 20 ILCS 1825/1 et seq. [FN6] 5 ILCS 100/10-55. Current through P.A. 94-726 of the 2005 Reg. Sess.
© 2005 Thomson/West END OF DOCUMENT

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EXHIBIT F

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Supreme Court of Illinois. PHL, INC., et al., Appellees,
v. PULLMAN BANK AND TRUST COMPANY et al.
(Judy Baar Topinka, Treasurer, Appellant).
PHL, Inc., et al., Appellees, v.
Pullman Bank and Trust Company et al. (Pullman Bank and Trust Company, Appellant). Nos. 96250, 96294.
June 3, 2005. Rehearing Denied Sept. 26, 2005.
Background: Prospective purchasers of two mortgage loans originated through Illinois Insured Mortgage Pilot Program and held in trust brought action against State Treasurer and trustee, alleging Treasurer's refusal to close on the sale. The Circuit Court, Madison County, Randall A. Bono, J., granted summary judgment to plaintiffs. Defendants appealed. The Appellate Court affirmed. Appeal was allowed.
Holding: The Supreme Court, McMorrow, C.J., held that State Treasurer's refusal to close on sale of mortgage loans simply involved alleged breach of contract and did not involve Treasurer acting in excess of her constitutional authority, and thus, officer suit exception to State's sovereign immunity did not apply, under which exception the action would not be considered a suit against State and the Court of Claims therefore would not have exclusive jurisdiction over the action. Reversed and remanded with directions.
Freeman, J., filed a dissenting opinion.
West Headnotes
[1] States 191.10 360k191.10 Most Cited Cases Officer suit exception to state's sovereign immunity applies where an action at law or suit in equity is maintained against a state officer or the director of a state department on the ground that, while claiming to act for the State, he violates or invades the personal and property rights of the plaintiff under an unconstitutional act or under an assumption of authority which he does not have, so that such suit is not against the state.
[2] Courts 472.1

106k472.1 Most Cited Cases
[2] States 191.10 360k191.10 Most Cited Cases State treasurer's refusal to close on sale of two mortgage loans originated through Illinois Insured Mortgage Pilot Program and held in trust for state simply involved an alleged breach of contract and did not involve treasurer acting in excess of her constitutional authority, and thus, officer suit exception to state's sovereign immunity did not apply, under which exception the action would not be considered a suit against state and the Court of Claims therefore would not have exclusive jurisdiction over the action; treasurer's refusal to close after execution of buy-sell agreement with prospective loan purchasers was based on treasurer choosing to follow Attorney General's advice, and while state constitution made treasurer responsible for safekeeping, investment, and disbursement of monies and securities deposited with treasurer, such general grant of authority did not prohibit treasurer from receiving or choosing to follow Attorney General's advice on legal matters relating to proper interpretation of trust documents for the mortgage program. S.H.A. Const. Art. 5, § 18; S.H.A. 705 ILCS 505/8(b); 745 ILCS 5/1.
[3] States 66 360k66 Most Cited Cases A state officer's erroneous exercise of a broad grant of delegated authority does not constitute an ultra vires act.
[4] States 191.10 360k191.10 Most Cited Cases Sovereign immunity will not bar a cause of action in the circuit court where the plaintiff seeks to bar a state officer from taking future actions in excess of his delegated authority. *352 Lisa Madigan, Attorney General, Springfield (Gary S. Feinerman, Solicitor General, Deborah L. Ahlstrand, Assistant Attorney General, Chicago, of counsel), for appellant Judy Baar Topinka.
Andrew B. David, Pamela S. DiCarlantonio, of Sugar, Friedberg & Felsenthal, Chicago, for appellant Pullman Bank & Trust Company.
William J. Harte, Joseph E. Tighe, Chicago, for appellees.
**829 Chief Justice McMORROW delivered the opinion of the court:

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Section 8(b) of the Court of Claims Act provides that the Court of Claims shall have exclusive jurisdiction over "[a]ll claims against the State founded upon any contract entered into with the State of Illinois." 705 ILCS 505/8(b) (West 2000). At issue in this case is whether plaintiffs' claim for breach of contract, which was brought against the Treasurer of the State of Illinois, constitutes an action "against the State" so as to come within this provision. The appellate court concluded that it did not. No. 5-00-0206 (unpublished order under Supreme Court Rule 23). For the reasons that follow, we reverse.
BACKGROUND In 1982, the State of Illinois established the Illinois Insured Mortgage Pilot Program (Mortgage Program) in an effort to stimulate economic development within the state. Although the workings of the Mortgage Program are somewhat complicated, it may be said, in general, that the program was implemented through the creation of a trust, funded with state money, from which loans were made to various commercial enterprises that had difficulty obtaining conventional financing. [FN1]
FN1. The original investment of state funds for the Mortgage Program trust was made under section 22 1/2 of the Deposit of State Moneys Act (Ill.Rev.Stat.1983, ch. 130, par. 41a), a general provision which, at that time, authorized the state Treasurer, with the approval of the Governor, to invest state funds in programs such as the Mortgage Program trust.
The details of the Mortgage Program, including the terms governing the creation of the trust and the manner in which loans were to be made by the trustee, were embodied in a purchase agreement, a trust indenture and a servicing agreement (collectively, the Trust Agreement). The Trust Agreement was executed on July 14, 1982, by the State of Illinois, acting through Treasurer Jerome Cosentino, with the concurrence of Governor James Thompson, and American National Bank and Trust Company of Chicago, both individually and as trustee. Under the terms of the Trust Agreement, the state is the sole owner of the trust estate and, through the Treasurer, directs the trust's activities.
In November 1982, in connection with the Mortgage Program, a first mortgage loan in the amount of $13.4 million was made to an Illinois limited partnership known as the Collinsville Hotel Venture. The funds from the loan were used by the partnership to finance a hotel in Collinsville, Illinois, which is now known

as the Collinsville Holiday Inn. In December 1983, a first mortgage loan was made to another limited partnership, known as the President Lincoln Hotel Venture, in the *353 **830 amount of $15.5 million. The funds from this loan were used to finance the construction of a hotel in Springfield, Illinois, which is now known as the Springfield Renaissance Hotel.
Throughout the 1980s, both hotel ventures had difficulties meeting their obligations under the Mortgage Program loans. As a result, both loans were restructured on at least two occasions. In 1992, a dispute arose between the hotel ventures and thenTreasurer Patrick Quinn regarding a term of the restructured loan agreements which required each hotel venture to provide the Mortgage Program trustee with a yearly "reliance letter." The trustee and Treasurer threatened to declare the loans in default because they believed that the reliance letters they had received were inadequate. In response, the hotel ventures filed suit against the Treasurer and trustee to enjoin the declaration of default.
The circuit court of Cook County dismissed the hotel ventures' action based on the doctrine of sovereign immunity. In October 1994, the appellate court affirmed. See President Lincoln Hotel Venture v. Bank One, 271 Ill.App.3d 1048, 208 Ill.Dec. 376, 649 N.E.2d 432 (1994). The hotel ventures' request for rehearing in the appellate court was denied on May 5, 1995. Thereafter, the hotel ventures filed a petition for leave to appeal in this court, which remained pending until October 1995.
In November 1994, defendant Judy Baar Topinka was elected Treasurer of the State of Illinois. After assuming office, Treasurer Topinka installed defendant Pullman Bank and Trust Company (Pullman Bank) as trustee of the Mortgage Program trust.
Beginning in December 1994, and continuing through the first part of 1995, the hotel ventures engaged in discussions with Treasurer Topinka about the possibility of purchasing the hotel venture loans from the state. The terms of sale which were discussed included the settlement of the reliance letter litigation, which was still ongoing at that time. As a result of these discussions, the plaintiffs in this case, which are two entities described in the record as having a "business relationship" with the hotel ventures, agreed to purchase the hotel venture loans. Plaintiff PHL, Inc., agreed to buy the first mortgage loan relating to the Collinsville Holiday Inn for $6.3 million, while plaintiff The President Lincoln Hotel Corporation agreed to pay $3.7 million to acquire the

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first mortgage loan relating to the Springfield Renaissance Hotel.
On April 19, 1995, plaintiffs entered into separate buy-sell agreements with Pullman Bank, as trustee of the Mortgage Program trust, to purchase the hotel venture loans. The agreements were identical, except for the name of the buyer and the purchase price. Joinders to the agreements were signed by the hotel ventures and Treasurer Topinka. Both buy-sell agreements expressly stated that they were being entered into, in part, to settle the reliance letter litigation and both agreements contained provisions in which the state agreed not to pursue any claims against the hotel ventures in relation to the loans. Closing on the buy-sell agreements was set for June 1995.
After the Treasurer and trustee signed the buy-sell agreements, Attorney General Jim Ryan publicly stated that he would review the terms of the agreements. In July 1995, the Attorney General announced that he would not approve the buy-sell agreements.
The Attorney General's decision to withhold approval of the agreements rested on two grounds, the first of which was financial. In a report prepared by a group of *354 **831 University of Illinois professors, the combined value of the two hotel venture loans was estimated at approximately $18 million to $19 million. Thus, because the state was to receive a total of only $10 million under the buysell agreements, the Attorney General concluded that the consideration the state was to receive for the hotel venture loans and the settlement of the reliance letter litigation was inadequate.
The second reason the Attorney General gave for withholding approval of the buy-sell agreements was found in an opinion letter issued by the Attorney General on July 10, 1995. See 1995 Ill. Att'y Gen. Op. No. 95-003. In this opinion, the Attorney General observed that the Trust Agreement, as it then existed, did not authorize the Mortgage Program trustee to settle mortgage loans for an amount less than their full value. The buy-sell agreements, however, did so. Therefore, the Attorney General concluded, unless the Trust Agreement was amended, at the direction of the state, the trustee would have no authority to surrender or execute the documents necessary to close on the buy-sell agreements.
The Attorney General's opinion further observed that the Trust Agreement did not specify who may execute the consent to amend the Trust Agreement on

behalf of the state, nor the form the consent should take. The Attorney General noted, however, that the Governor's involvement was "indispensable to the creation and ongoing operation" (1995 Ill. Att'y Gen. Op. No. 95-003, at 7) of the Mortgage Program and, further, "that in 1992, when a similar outstanding loan was settled, the Governor's signature was affixed to the direction authorizing the Trustee to execute the instruments necessary to accept the settlement." 1995 Ill. Att'y Gen. Op. No. 95-003, at 7-8. Moreover, according to the Attorney General, the Trust Agreement itself provides "that the parties to the Agreement include the Trustee and the State of Illinois, which is described as 'acting by and through its Treasurer * * *, with the consent of its Governor * * *.' " 1995 Ill. Att'y Gen. Op. No. 95-003, at 8. From this, the Attorney General concluded that
"it was clearly contemplated by the parties that the representatives of the State, for purposes of acting under the Trust Agreement, are the Treasurer and the Governor, and that the concurrence of both the Governor and the Treasurer is necessary to validate actions taken on behalf of the State thereunder. Consequently, it is my opinion that both the Governor and the Treasurer must authorize the amendment of the Trust Agreement and give their consent to the proposed transaction in order to effectuate it." 1995 Ill. Att'y Gen. Op. No. 95-003, at 9. Because the Governor had not authorized any amendment of the Trust Agreement or consented to the buy-sell agreements, the Attorney General concluded that the agreements were invalid.
After the Attorney General made his views on the buy-sell agreements known, Treasurer Topinka publicly indicated that she disagreed with the Attorney General's financial assessment of the agreements. The Treasurer stated that, in her view, the buy-sell agreements represented the best financial deal that could be made by the state with respect to the hotel venture loans. Nevertheless, based on the legal opinion of the Attorney General, and because the Governor had not consented to the buy-sell agreements, the Treasurer declined to close on the agreements.
In October 1995, the hotel ventures, the Treasurer, Pullman Bank as the Mortgage Program trustee, and the Attorney General executed an agreement settling the reliance *355 **832 letter litigation. Plaintiffs in the case at bar were not parties to this settlement, which did not reference the buy-sell agreement or any sale of the hotel venture loans. The same day that the settlement agreement was reached, the hotel ventures withdrew their petition for leave to appeal in

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the reliance letter litigation which was pending before this court. See President Lincoln Hotel Venture v. Pullman Bank & Trust Co., 163 Ill.2d 586, 212 Ill.Dec. 436, 657 N.E.2d 637 (1995) (petition for leave to appeal withdrawn).
Approximately two months after the settlement of the reliance letter litigation, on December 29, 1995, plaintiffs filed the present action in the circuit court of Madison County against the Treasurer and Pullman Bank. In their complaint, plaintiffs alleged that the Treasurer possessed the "unqualified constitutional authority" to approve the sale of the hotel venture loans without the concurrence of the Governor. Plaintiffs further alleged that, by adhering to the Attorney General's legal opinion and failing to close on the buy-sell agreements, the Treasurer was "acting in derogation of her constitutional duties and in abuse of her discretion and authority." Plaintiffs requested the circuit court to "[o]rder the Treasurer to perform her constitutional duties" and to enforce the provisions of the buy-sell agreements calling for the state to sell the hotel venture loans.
The litigation which followed the filing of plaintiffs' suit was lengthy and involved. It is recounted here only as necessary to address the issues presented in this appeal.
After plaintiffs filed their complaint, both the Treasurer and Pullman Bank filed motions to dismiss, in which they argued that plaintiffs' cause of action was barred by sovereign immunity. Defendants maintained that, although plaintiffs' suit for breach of contract was brought against the Treasurer in her individual capacity, the state was in fact the real party in interest because a judgment in favor of plaintiffs would require the state to divest itself of the hotel ventures loans. In addition, because Pullman Bank was merely the agent of the state and could only act at the direction of the Treasurer with respect to the trust estate, defendants maintained that any action against Pullman Bank was also against the state. Defendants further noted that, under section 8(b) of the Court of Claims Act (705 ILCS 505/8(b) (West 2000)), the Court of Claims has exclusive jurisdiction over claims brought against the state for breach of contract. Thus, defendants argued that the circuit court lacked jurisdiction to hear plaintiffs' complaint and that the suit properly belonged in the Court of Claims. The circuit court denied defendants' motions to dismiss.
Thereafter, the Treasurer filed a motion for summary judgment in which she argued that the buy-sell agreements were unenforceable as a matter of law

both because the Governor had not consented to them and because they lacked the Attorney General's approval. This latter argument was based on the fact that the buy-sell agreements were not simply contracts, but also settlement agreements which conclusively resolved the then-pending reliance letter litigation. Citing to Gust K. Newberg, Inc. v. Illinois State Toll Highway Authority, 98 Ill.2d 58, 74 Ill.Dec. 548, 456 N.E.2d 50 (1983), the Treasurer maintained that it is the prerogative of the Attorney General to settle pending litigation in which the state is involved. Thus, according to the Treasurer, because the Attorney General had not consented to the settlement portions of the buy-sell agreements, the settlement was invalid. And, the Treasurer argued, because the settlement of the reliance litigation was a material *356 **833 covenant to the buy-sell agreements, the agreements themselves never became valid contracts and were therefore unenforceable. Pullman Bank also filed a motion for summary judgment which raised similar arguments.
In response to defendants' motions, plaintiffs filed a cross-motion for summary judgment, in which they argued that the Treasurer had the exclusive authority to close on the buy-sell agreements and that the Attorney General's approval of the buy-sell agreements was unnecessary. Plaintiffs did not dispute defendants' contention that, in general, it is the prerogative of the Attorney General to settle state litigation. However, plaintiffs argued that, in this case, the settlement of the reliance letter litigation in October 1995, although separate from the buy-sell agreements, nevertheless rendered the settlement portions of the buy-sell agreements irrelevant. Accordingly, because the settlement portions of the buy-sell agreements were no longer at issue, plaintiffs maintained that the Attorney General's approval was not needed and that the court could order specific performance of the buy-sell agreements.
After hearing argument, the circuit court denied defendants' motions for summary judgment and granted plaintiffs' cross-motion. In so ruling, the circuit court held that consent of neither the Governor nor the Attorney General was necessary to render the buy-sell agreements enforceable. In a subsequent order, the court held that plaintiffs had been ready, willing and able to fulfill their obligations under the buy-sell agreements in June 1995. Finally, on March 13, 2000, the circuit court entered judgment in favor of plaintiffs. The court ordered the Treasurer and Pullman Bank, as trustee of the Mortgage Program trust, to specifically perform the buy-sell agreements. Defendants appealed.

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In a divided opinion, the appellate court affirmed. No. 5-00-0206 (unpublished order under Supreme Court Rule 23). The appellate court rejected defendants' contention that plaintiff's suit was barred by sovereign immunity. In so holding, the appellate court observed that an exception to the doctrine of sovereign immunity applies when the state officer who is the subject of the complaint acts in excess of his or her authority. The appellate court reasoned that this exception was applicable in the case at bar because the Treasurer had "back[ed] out of an obligation based on an opinion of the Attorney General" and, in so doing, had improperly "relegat[ed]" her constitutional authority as Treasurer to the Attorney General.
Both defendants filed separate petitions for leave to appeal in this court. The petitions were allowed and defendants' appeals were consolidated.
ANALYSIS The Illinois Constitution of 1970 abolished the doctrine of sovereign immunity "[e]xcept as the General Assembly may provide by law." Ill. Const. 1970, art. XIII, § 4. Pursuant to its constitutional authority, the General Assembly reestablished sovereign immunity in the State Lawsuit Immunity Act. 745 ILCS 5/0.01 et seq. (West 1998); City of Springfield v. Allphin, 74 Ill.2d 117, 123, 23 Ill.Dec. 516, 384 N.E.2d 310 (1978). Section 1 of that enactment states that "[e]xcept as provided in [an act] to create the Court of Claims * * * the State of Illinois shall not be made a defendant or party in any court." 745 ILCS 5/1 (West 1998). The Court of Claims Act, in turn, provides that the Court of Claims shall have exclusive jurisdiction over "[a]ll claims against the State founded upon any contract entered into *357 **834 with the State of Illinois." 705 ILCS 505/ 8(b) (West 2000).
As they did in the courts below, defendants maintain that plaintiffs' complaint is barred from the circuit court by section 8(b) of the Court of Claims Act. Defendants contend that plaintiffs' complaint is one for breach of contract; that Pullman Bank may act only at the direction of the Treasurer and, therefore, the Treasurer's actions are the relevant focus of inquiry in this case; that the complaint against the Treasurer is, in fact, against the state because a judgment in plaintiffs' favor would "operate to control the actions of the State" (emphasis omitted) (Currie v. Lao, 148 Ill.2d 151, 158, 170 Ill.Dec. 297, 592 N.E.2d 977 (1992)) by forcing the state to sell the hotel venture loans; and, therefore, that plaintiffs' complaint must be heard in the Court of Claims.

Plaintiffs, in response, do not dispute that their complaint alleges a breach of contract, that the Treasurer's actions should be the focus of this appeal, or that an adjudication in their favor would cause the state to sell the hotel venture loans. Nevertheless, plaintiffs contend that section 8(b) is not controlling in the case at bar because an exception to the doctrine of sovereign immunity, often referred to as the "officer suit" exception, is applicable here.
[1] In Illinois, the leading historical expression of the officer suit exception is found in Schwing v. Miles, 367 Ill. 436, 11 N.E.2d 944 (1937):
"where the action at law or suit in equity is maintained against a State officer or the director of a department on the ground that, while claiming to act for the State, he violates or invades the personal and property rights of the plaintiff under an unconstitutional act, or under an assumption of authority which he does not have, such suit is not against the State. (Noorman v. Department of Public Works and Buildings, supra [366 Ill. 216, 8 N.E.2d 637 (1937) ]; Fitts v. McGhee, 172 U.S. 516 [19 S.Ct. 269, 43 L.Ed. 535]; United States v. Lee, 106 id. 196 [106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171]; White Eagle Oil and Refining Co. v. Gunderson [48 S.D. 608], 205 N.W. (S.Dak.) 614; 43 A.L.R. 397.) The presumption obtains that the State, or a department thereof, will not, and does not, violate the constitution and laws of the State, but that such violation, if it occurs, is by a State officer or the head of a department of the State, and such officer or head may be restrained by proper action instituted by a citizen." Schwing, 367 Ill. at 441-42, 11 N.E.2d 944. Stated otherwise, it is said that when an action of a state officer is undertaken without legal authority, such an action "strips a State officer of his official status * * * [and] his conduct is not then regarded as the conduct of the State, nor is the action against him considered an action against the State." Moline Tool Co. v. Department of Revenue, 410 Ill. 35, 37, 101 N.E.2d 71 (1951).
The officer suit exception has a long and complex history, with its origination in the federal courts. See Schwing, 367 Ill. at 441, 11 N.E.2d 944, citing Fitts v. McGhee, 172 U.S. 516, 19 S.Ct. 269, 43 L.Ed. 535 (1899); United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171 (1882); see also Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). In Illinois, the officer suit exception has been described as a means of protecting the rights of plaintiffs:
"[W]here the defendant officer act[s] in excess of his statutory authority, the rights of the plaintiffs to

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be free from the consequences of his action outweigh the interest of the State which is served *358 **835 by the sovereign immunity doctrine." Senn Park Nursing Center v. Miller, 104 Ill.2d 169, 188, 83 Ill.Dec. 609, 470 N.E.2d 1029 (1984). See also Moline Tool Co., 410 Ill. at 37, 101 N.E.2d 71 (not all suits against state officers are barred because "[s]uch a holding would have blunted the effectiveness of many constitutional guaranties by preventing their judicial enforcement").
In Smith v. Jones, 113 Ill.2d 126, 100 Ill.Dec. 560, 497 N.E.2d 738 (1986), this court held that the officer suit exception may be raised, as a general matter, in breach of contract cases which would otherwise fall under section 8(b) of the Court of Claims Act. Smith, 113 Ill.2d at 131-32, 100 Ill.Dec. 560, 497 N.E.2d 738. However, this court also held that the exception does not apply when the action which the plaintiff alleges was taken in excess of authority is simply a breach of contract and nothing more. Smith, 113 Ill.2d at 132-33, 100 Ill.Dec. 560, 497 N.E.2d 738 ("The plaintiffs ['] complaint, thus, alleges only that the Director exceeded his authority by breaching a contract. Such an allegation does not deprive the defendants of the protection of the bar of sovereign immunity"). In the case at bar, defendants cite to Smith and contend that plaintiffs' cause of action is merely a breach of contract case and, therefore, that the officer suit exception is inapplicable.
[2] Plaintiffs, however, maintain that the present case is unlike Smith. According to plaintiffs, in this case, the Treasurer did not simply breach a contract, she also acted in excess of her legal authority, specifically, the authority given her under article V, section 18, of the Illinois Constitution of 1970. That provision states:
"The Treasurer, in accordance with law, shall be responsible for the safekeeping and investment of monies and securities deposited with him, and for their disbursement upon order of the Comptroller." Ill. Const. 1970, art. V, § 18. Plaintiffs allege in their complaint that the Treasurer acted "in derogation of her constitutional duties" under article V, section 18, by "adhering to the Attorney General's financial analysis and legal opinion." Thus, plaintiffs contend, the officer suit exception applies and their complaint properly belongs in the circuit court.
Initially, we note that the Treasurer did not, in fact, adhere to the Attorney General's financial analysis of the buy-sell agreements. Indeed, there has never been any question in this case that, after the Attorney

General announced the findings from the report prepared by the University of Illinois professors, the Treasurer publicly stated that, in her view, the buysell agreements were the best financial deal that could be made for the state with respect to the hotel venture loans. The circuit court, in its order on the parties' cross-motions for summary judgment, stated as an "undisputed fact" that "[t]he parties never closed on the Buy-Sell Agreements or the related Settlement Agreements because, on advice of the Attorney General, the Treasurer refused to do so." On appeal, the appellate court agreed, stating that "[a]fter entering into the Agreements, the Treasurer declined to act, based upon the advice contained in an opinion letter." No. 5-00-0206 (unpublished order under Supreme Court Rule 23). The lower courts' statements of the facts are not contested by the parties on appeal. Thus, with respect to whether the Treasurer acted "in derogation of her constitutional duties," the question we must decide is whether the Treasurer's decision to "adher[e] to the Attorney General's * * * legal opinion" violated article V, section 18, of the Illinois Constitution. The answer to this question is no.
*359 **836 Article V, section 18, is a general grant of authority. Nothing in that provision forbids the Treasurer from receiving or following the advice of the Attorney General on a legal matter relating to the proper interpretation of trust documents. Accordingly, the fact that the Treasurer, in this case, chose to adopt the Attorney General's legal opinion interpreting the Trust Agreement as her own does not mean that she acted outside the authority given to her under the constitution. [FN2]
FN2. The dissent states that the Treasurer disagreed with the Attorney General's opinion letter and that she "publicly characterized the opinion as 'illogical' and 'unrealistic.' " 216 Ill.2d at 277, 296 Ill.Dec. at 843, 836 N.E.2d at 366 (Freeman, J., dissenting). Although the dissent does not indicate the source of the Treasurer's statements, it appears that the dissent has taken them from an allegation found in plaintiffs' complaint and that the allegation has been misquoted. In paragraph 40 of their complaint, plaintiffs alleged that "on July 11, 1995, the Treasurer issued a press release stating that the University of Illinois report was 'illogical' and 'unrealistic.' " (Emphasis added.) Paragraph 40 alleges that the Treasurer disagreed with the financial assessment offered by the University of Illinois professors, not that the Treasurer

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disagreed with the Attorney General's opinion letter. In addition, the press release described in plaintiffs' complaint was not mentioned in any of the circuit court's subsequent rulings and we have been unable to locate it in the record.
Plaintiffs nevertheless express concern that a holding in this case that the Treasurer did not violate the constitution would mean that the Attorney General would have "veto authority over the Treasurer's right to enter into contracts to sell state investments." We disagree. As noted, in July 1995, the Attorney General issued an opinion letter in which he reasoned that the buy-sell agreements were invalid because, in order for those agreements to take effect, an amendment to the Trust Agreement was required and such an amendment could not be made, under the terms of the Trust Agreement itself, without the consent of the Governor. From the Treasurer's perspective, the Attorney General's opinion was persuasive authority but it was not legally binding. See President Lincoln Hotel Venture, 271 Ill.App.3d at 1056, 208 Ill.Dec. 376, 649 N.E.2d 432; Bonaguro v. County Officers Electoral Board, 158 Ill.2d 391, 399, 199 Ill.Dec. 659, 634 N.E.2d 712 (1994). The opinion did not, in a legal sense, stop or block the Treasurer from taking any action she wished with respect to the buy-sell agreements. The Treasurer, of her own volition, decided to follow the legal advice of the Attorney General and forgo closing on the buysell agreements. Nothing in our decision in this case forces the Treasurer to adopt the advice of the Attorney General or gives the Attorney General the authority to unilaterally invalidate contracts entered into by the Treasurer. Our holding is simply that when, as in this case, the Treasurer chooses to follow the legal advice of the Attorney General regarding the proper interpretation of trust documents, the Treasurer does not violate article V, section 18. [FN3]
FN3. The dissent states that the Treasurer's decision to forgo closing on the buy-sell agreements was not "voluntary" (216 Ill.2d at 277, 296 Ill.Dec. at 843, 836 N.E.2d at 366 (Freeman, J., dissenting)) and repeatedly asserts that the Attorney General "would not allow" the Treasurer to proceed with the buy-sell agreements (emphasis in original) (216 Ill.2d at 275-79, 296 Ill.Dec. at 842-43, 836 N.E.2d at 365-66. (Freeman, J., dissenting)). Notably, however, the dissent never identifies the means by which the Attorney General prevented the Treasurer from closing on the agreements.

The closest the dissent comes to doing so is the dissent's statement that the "Attorney General placed the Treasurer in a situation where she was forced to choose between doing her job, i.e., exercising her judgment on financial matters with respect to the Trust, or following the unsought advice of a fellow state officer." 216 Ill.2d at 276, 296 Ill.Dec. at 842, 836 N.E.2d at 365. (Freeman, J., dissenting). In other words, according to the dissent, the Treasurer's actions were not "voluntary" because she had to decide whether or not to follow the Attorney General's legal opinion. This reasoning is unpersuasive. If the Treasurer chose to follow the Attorney General's legal opinion, then, by definition, her actions were voluntary.
*360 **837 In addition, we note that were we to hold that the officer suit exception applies in this case, it would follow that every time the Treasurer decided to adopt any legal advice she would risk violating the constitution. Indeed, counsel for plaintiffs essentially conceded this point during oral argument before this court. Explaining why plaintiffs believe the Treasurer acted improperly in this case, counsel stated that "the Treasurer had a responsibility not to allow the Attorney General to dissuade her from her contract." But this assertion is unreasonable. The Treasurer should not be placed in the position of having to refuse to hear legal advice in order to avoid violating the constitution. Important decisions affecting the finances of this state should not have to be made in a legal vacuum.
The appellate court below, in discussing whether the Treasurer had exceeded her constitutional authority, concluded that the Treasurer's argument that the buysell agreements were ineffective without the Governor's consent was incorrect, as was her contention that the Attorney General's approval was necessary because the buy-sell agreements settled the reliance letter litigation. Based on these conclusions, the appellate court determined that the Treasurer had exceeded her constitutional authority because, as the appellate court stated, she had no authority not to execute the buy-sell agreements. Again, we disagree.
[3] It is well settled that a state officer's erroneous exercise of a broad grant of delegated authority does not constitute an ultra vires act. As the United States Supreme Court has stated:
"[W]here the officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions.

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The officer is not doing the business which the sovereign has empowered him to do or he is doing it in a way which the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief. It is important to note that in such cases the relief can be granted, without impleading the sovereign, only because of the officer's lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient." (Emphasis added.) Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 689-90, 69 S.Ct. 1457, 1461, 93 L.Ed. 1628, 1636 (1949).
In the case at bar, we express no opinion on whether the Governor's consent was, in fact, required to effectuate the buy-sell agreements or whether the Attorney General's approval of the agreements was needed because the agreements settled litigation in which the state was involved. We note, however, that even accepting the appellate court's holdings on these issues as correct, the most that can be said with respect to the Treasurer's actions is that (1) she misread the terms of the Trust Agreement as requiring the Governor's consent for an amendment to that agreement when such consent was not, in fact, required and (2) she incorrectly believed that the settlement provisions contained in the buy-sell agreements were material covenants to those agreements when, in fact, *361 **838 the provisions were rendered irrelevant by the settlement of the reliance letter litigation in October 1995. These are errors of contract and trust interpretation. They are not actions forbidden under article V, section 18, and, hence, they are not ultra vires acts.
The parties also contest whether plaintiffs' cause of action is one which seeks prospective relief within the meaning of this court's decision in Bio-Medical Laboratories, Inc. v. Trainor, 68 Ill.2d 540, 12 Ill.Dec. 600, 370 N.E.2d 223 (1977). As this court has noted, Bio-Medical Laboratories "stands for the proposition that if a plaintiff is not attempting to enforce a present claim against the State, but rather seeks to enjoin a State officer from taking future actions in excess of his delegated authority, then the immunity prohibition does not pertain." Ellis v. Board of Governors of State Colleges & Universities, 102 Ill.2d 387, 395, 80 Ill.Dec. 750, 466 N.E.2d 202 (1984); see also Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (drawing a distinction between prospective and retrospective relief in the context of sovereign immunity). Plaintiffs contend that their cause of action is not a present claim because they seek only to compel the Treasurer to take future action, i.e., to close on the

buy-sell agreements. Defendants, however, maintain that because plaintiffs' action is one for breach of contract, it necessarily seeks to enforce current or existing agreements. Thus, according to defendants, plaintiffs' cause of action cannot be viewed as simply seeking prospective relief.
[4] The rule stated in Bio-Medical Laboratories is that sovereign immunity will not bar a cause of action in the circuit court where the plaintiff seeks to bar "a State officer from taking future actions in excess of his delegated authority." (Emphasis added.) Ellis, 102 Ill.2d at 395, 80 Ill.Dec. 750, 466 N.E.2d 202. Because we have determined that, in this case, the Treasurer did not take any action in excess of her delegated, constitutional authority, we need not consider whether plaintiffs' cause of action is a present claim or one which seeks prospective relief.
Finally, the dissent states that it is troubled by this court's approach to the question of "whether the Court of Claims can provide the remedy of specific performance." 216 Ill.2d at 282, 296 Ill.Dec. at 846, 836 N.E.2d at 369 (Freeman, J., dissenting). The dissent states that "[i]t would appear from the conclusion reached by this court that the implicit answer to that question is yes." 216 Ill.2d at 282, 296 Ill.Dec. at 846, 836 N.E.2d at 369. (Freeman, J., dissenting). This statement is incorrect. Nowhere in this opinion has this court made any determination, either explicit or implicit, as to whether the remedy of specific performance is available in the Court of Claims. Our decision in this case is limited solely to the question of whether the circuit court had jurisdiction to consider plaintiffs' complaint and, specifically, whether the officer suit exception is applicable in this case. The parties have not briefed the issue of whether the remedy of specific performance is available in the Court of Claims, and it is not necessary to decide that issue in order to resolve this case.
CONCLUSION The officer suit exception to the doctrine of sovereign immunity is inapplicable under the facts of this case. Thus, section 8(b) of the Court of Claims Act is controlling, and the circuit court lacked jurisdiction to hear plaintiffs' complaint. Accordingly, the judgments of the circuit and appellate courts are reversed. The cause is remanded to the circuit court with directions to dismiss plaintiffs' complaint.
*362 **839 Nos. 96250 & 96294--Appellate court judgment reversed; circuit court judgment reversed; cause remanded with directions.

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Justices GARMAN and KARMEIER took no part in the consideration or decision of this case.
Justice FREEMAN, dissenting:
The court reverses the judgments of the appellate and circuit courts in this case, which held that jurisdiction over this cause rested in the circuit court of Madison County. I am unable to join in the opinion, however, because I believe several of the more troubling aspects of this case have been overlooked in the court's haste to rule that jurisdiction lies not in the circuit court but in the Court of Claims. In my view, the court's conclusory analysis with respect to the issue of sovereign immunity is at odds with the spirit of the officer suit exception to the doctrine of sovereign immunity. I believe today's opinion will have a negative impact on the future willingness of private citizens to do business in Illinois with state officials and therefore respectfully dissent.
The sovereign immunity issue was first raised in the circuit court in a motion to dismiss filed by defendants. The trial judge denied the motion because he believed that the case involved an inseparable combination of contractual and constitutional issues, which were inappropriate issues for the Court of Claims to decide. The appellate court agreed, holding that, inter alia, "[s]overeign immunity cannot provide a defense where the court must determine if a State agent acted in violation of statutory or constitutional law or in excess of authority." PHL, Inc. v. Pullman Bank & Trust Co., No. 5-97-1064, 297 Ill.App.3d 1142, 250 Ill.Dec. 96, 737 N.E.2d 718 (July 28, 1998) (unpublished order under Supreme Court Rule 23).
The genesis of this suit was the 1982 establishment of the Illinois Insured Mortgage Pilot Program (Mortgage Program), which, as the court correctly notes, was designed to stimulate economic development in depressed areas within central and downstate Illinois. State monies were used to create a trust, which would lend money to various commercial enterprises that had experienced difficulty obtaining conventional financing. The trust agreement at issue in this case was executed by the State of Illinois, with the Treasurer directing the trust's activities. Relevant here is the fact that the Treasurer was charged under this statutory program with the responsibility of overseeing the state's investment.
In November 1982 and December 1983, two loans

were made pursuant to the Mortgage Program to different hotel ventures. Unfortunately during the years that ensued, these borrowers had difficulty in meeting their financial obligations under the Mortgage Program loans. The terms of the loans were eventually restructured, but new disputes subsequently arose over the terms of the restructuring. As a result of the disputes, in 1994, plaintiffs began discussions with Treasurer Judy Baar Topinka regarding the possibility of purchasing the loans from the state. These discussions led to the creation of the buy-sell agreements that are at the heart of this case. The Treasurer and the trustee signed the buy-sell agreement on April 19, 1995. At that time, the Treasurer held a news conference where she explained the agreement and the benefits it would inure to the state. According to the terms of the agreements, the closing date was to be on or before June 30, 1995.
Shortly thereafter, on May 3, 1995, the Illinois Attorney General announced that he would investigate the propriety of the Treasurer's selling of the loans to plaintiffs *363 **840 and that the proposed closing would not take place until his review was completed. During the tenure of the " investigation," plaintiffs were told of the actions of the Attorney General with respect to his intervention into the buy-sell agreements and of the fact that the Treasurer "was acquiescent in the Attorney General's assertion that he would make the ultimate decision related to her right to proceed with the buy-sell agreements." Affidavit of Kathleen Vyborny, Defendants' Appendix, at A-117. The final day for the closing, June 30, 1995, passed without action.
On July 11, 1995, the Attorney General announced that he would not "approve" the agreements based upon the financial advice of a team of University of Illinois professors. On that same date, he also sent an opinion to State Senator Penny Severns in which he took the position that the Treasurer does not have "the authority to create a program of this sort, which extends to matters far in excess of the Treasurer's statutory and constitutional duties." 1995 Ill. Att'y Gen. Op. No. 95-003, at 6. The Treasurer publicly disagreed with the Attorney General's financial assessment of the agreements because, in her view, the agreements represented the best financial deal that could be made by the state with respect to the initial hotel venture loans. According to the record, the proposed sale was 20% higher than any other offer received for the loans, 30% higher than the June 1994 appraised value of the loans, and 50% higher than the book value of those loans. As a result of the Attorney General's opinion, the deal was considered

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"dead." Letter of Chief of Staff of the Attorney General, dated July 11, 1995, Defendants' Appendix, at A-112. In a letter to plaintiffs' attorney, the Attorney General spoke of the need to look to the future in light of the fact that the deal was dead and that "to that end, and to aid this office in an analysis of the current status of the agreement of or any future proposal, please consider this our request to you, on behalf of your clients, to allow us the opportunity to examine the books and expense records of both hotels." Letter of Chief of Staff of the Attorney General, dated July 11, 1995, Defendants' Appendix, at A-112. Soon thereafter, this lawsuit commenced.
Plaintiffs argue that the Treasurer acted in derogation of her constitutional duties in refusing to perform her agreement to divest the state's holdings with respect to the hotel ventures after entering into binding agreements to do so. Defendants respond that the doctrine of sovereign immunity deprives the circuit court of jurisdiction over this cause. They maintain that plaintiffs' cause of action is a simple breach of contract case and that, as such, it must be brought in the Court of Claims.
Whether an action is in fact one against the state and hence one that must be brought in the Court of Claims depends not on the formal identification of the parties, but rather on the issues involved and the relief sought. Healy v. Vaupel, 133 Ill.2d 295, 308, 140 Ill.Dec. 368, 549 N.E.2d 1240 (1990). The prohibition " 'against making the State of Illinois a party to a suit cannot be evaded by making an action nominally one against the servants or agents of the State when the real claim is against the State of Illinois itself and when the State of Illinois is the party vitally interested.' " Healy, 133 Ill.2d at 308, 140 Ill.Dec. 368, 549 N.E.2d 1240, quoting Sass v. Kramer, 72 Ill.2d 485, 491, 21 Ill.Dec. 528, 381 N.E.2d 975 (1978). The doctrine of sovereign immunity "affords no protection, however, when it is alleged that the State's agent acted in violation of statutory or constitutional law or in excess of his authority, and in those instances an action may be brought in circuit court." Healy, *364 **841 133 Ill.2d at 308, 140 Ill.Dec. 368, 549 N.E.2d 1240 (and cases cited therein). The doctrine serves to "protect[ ] the State from interference in its performance of the functions of government and preserve[ ] its control over State coffers." S.J. Groves & Sons Co. v. State, 93 Ill.2d 397, 401, 67 Ill.Dec. 92, 444 N.E.2d 131 (1982).
The court holds that the officer suit exception to the doctrine of sovereign immunity is inapplicable here. In doing so, the court notes that "the most that can be

said with respect to the Treasurer's actions is that (1) she misread the terms of the Trust Agreement as requiring the Governor's consent for an amendment to that agreement when such consent was not, in fact, required and (2) she incorrectly believed that the settlement provisions contained in the buy-sell agreements were material covenants to those agreements, when, in fact, the provisions were rendered irrelevant by the settlement of the reliance letter litigation in October 1995." 216 Ill.2d at 267, 296 Ill.Dec. at 837-38, 836 N.E.2d at 360-61. The court then concludes that these errors are "errors of contract and trust interpretation" and are not unconstitutional, ultra vires acts. I find this conclusion rather troubling under the facts of this case because this case concerns more than just mere questions of contract interpretation.
As an initial matter, my disagreement with my colleagues lies not in the recitation of facts, with which I agree, but rather in the interpretation of those facts. Similar to the lower courts, I am troubled by the way in which the Attorney General left the Treasurer with little choice but to follow his opinion even though the Treasurer did not agree with it. In this case, we have a very public disagreement between the Attorney General and the Treasurer as to what steps to take to protect the state's interest in the Trust Agreement. It is clear from the record that the Treasurer was represented by counsel when she entered into the agreements with plaintiffs. The record is also clear that the Treasurer did not seek the Attorney General's input into the matter. Had the Treasurer wanted the Attorney General's opinion, it stands to reason that she would have sought it prior to signing the agreements in the first place. The record indicates clearly that the Attorney General, on his own initiative, only entered into the fray after news accounts started to be published about the impending transaction. Indeed, the Attorney General's public posturing in this case at the time in question smacks more of sound-bite politics than of true legal or even financial acumen. As I shall explain, our state constitution does not give the Attorney General authority over the Treasurer in the manner that was exercised in this case. Nor does the Trust Agreement give the Attorney General the duties of oversight that the Attorney General willed unto himself. I believe that these concerns are what caused the lower courts that have addressed this issue to rule that sovereign immunity does not lie under these facts. The record makes clear that once the Attorney General entered into the matter, the Treasurer, for all and intents and purposes "opted out," despite her conviction that the deal she brokered was in the best financial interests of the state. The

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record establishes that the Treasurer did not act in June because she was going to let the Attorney General make the ultimate decision on her right to close. It is clear from reviewing the contemporaneous statements regarding the transaction that are contained in the record that the Treasurer was ready and willing to execute the buysell agreements, which she believed to be in the best financial interests of the state, until the Attorney General intervened. As noted previously, plaintiffs were informed in early *365 **842 May 1995, that the ultimate decision regarding the sale would be made by the Attorney General. And it is here where I part company with my colleagues because I do not believe that it is proper to use the doctrine of sovereign immunity under these circumstances. The Treasurer violated her constitutional obligation by allowing the Attorney General to make the ultimate decision regarding whether the sale would be made.
As I noted, the Trust Agreement does not charge the Attorney General with any oversight responsibilities. The Trust Agreement names the Treasurer as the constitutional officer charged with such duties. The record affirmatively demonstrates that, despite having this authority, it was the Attorney General who announced that he would not "approve" the agreements. Meanwhile, the Treasurer allowed the closing date to pass while she awaited the final word regarding its merits, both financial and legal, from the Attorney General. Thus, for all intents and purposes, it was the Attorney General who took charge of the oversight of the Trust Agreement. The Attorney General's review was not completed until July 10, 1995, and it was at that time that he publicly announced that the Treasurer did not have the authority to make the transaction and that her doing so was in excess of any of her statutory or constitutional duties. The Attorney General's July 11, 1995, letter to plaintiffs, in which he requested the books and expense records of both hotels, indicates to me, at least, that the Attorney General was taking over a greater role in the handling of the Trust Agreement.
In light of the above, the Attorney General killed the deal on the basis of his legal conclusion that the buysell agreements were invalid and his conclusion that the agreements were fiscally inadvisable for the state. These facts are recounted in the news accounts that were made a part of the record, which reveal that the Attorney General on the day that he announced that the deal was "dead" was quoted as saying, "After a careful, comprehensive review by both my staff and the U of I team, I conclude that it is not in the state's best interest * * * to settle. It's a bad deal for the

state." Defendants' Appendix, at A-123. The Attorney General also took the position that any loan arrangement made by the Treasurer would need his approval. [FN4] Contrariwise, at a separate news conference held on the same day, the Treasurer was quoted as saying that she told the Attorney General that she "could not accept the numbers" and insisted that the deal she struck was financially the most lucrative the state could hope for. Defendants' Appendix, at A-121. Clearly, the record establishes that the Attorney General would not allow the Treasurer to proceed with this transaction. Stated simply, the situation we have at bar has two constitutional officers at loggerheads over who has the authority to do what. The Attorney General placed the Treasurer in a situation where she was forced to choose between doing her job, i.e., exercising her judgment on financial matters with respect to the Trust, or following the unsought advice of a fellow state officer. The court states that the Treasurer's actions must be construed as voluntary because the Attorney General's advice was not legally binding and that she was free to disregard it. *366 **843 I disagree because the tone and tenor of the contemporaneous comments suggest otherwise. The Attorney General repeatedly stated publicly that the deal would not go through without his approval. Indeed, letters contained in the record indicate that it was the Attorney General, not the Treasurer, who would examine "the books and expense records" with respect to any analysis of the agreement in question or any future proposal. It would seem that this type of conflict would fall within the officer suit exception to the doctrine at least with respect to the circumstances here.
FN4. It is important to note that nowhere in the statutory program which spawned the Trust Agreement is authority to approve loan arrangements given to the Attorney General. Nor does the statute provide the Attorney General with fiscal oversight with respect to the best interests of the state. Rather, under the statutory framework of the Mortgage Program, the Treasurer was charged with these responsibilities.
On the day that the Attorney General stated his opinion and announced that the deal was dead, the Treasurer publicly characterized the opinion as "illogical" and "unrealistic" and likened the Attorney General's actions to "reversing the outcome of the Super Bowl on the basis of armchair speculation from Monday morning quarterbacks." The Treasurer further stated that the agreements were valid, yet still inexplicably followed the Attorney General's opinion.

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The Treasurer's colorful sporting analogy reveals that the Treasurer did in fact delegate her duties to the Attorney General. The only way a Monday morning quarterback can control the outcome of the Super Bowl is if the officials whose job it is to rule on calls allow themselves to be reversed by others. The Treasurer, whose job it was to "make the call" in this case allowed herself to be reversed by an official who had no legal or constitutional right to "make the call." This demonstrates the type of constitutional derogation of duty that both the lower courts in this case were troubled by and why they ruled that the doctrine of sovereign immunity did not apply to this case. The court today chooses to characterize the Treasurer's actions as purely voluntary, but I do not. In my view, the Treasurer, at the time all of these events occurred, took a "my hands are tied" approach to the Attorney General's intervention. The plaintiffs allege that by taking such approach, the Treasurer delegated her constitutional duties in such a way as to render inapplicable the doctrine of sovereign immunity. I agree. The record indicates that the Treasurer believed the agreements were valid and the Attorney General was wrong on a financial level. The Treasurer was constitutionally and statutorily obligated to protect the state's assets and follow through on her contractual obligations.
In her brief, the Treasurer claims that her actions in failing to perform the contract cannot be equated with her violating any constitutional or statutory duty. I believe her argument, however, oversimplifies matters to an extent-- the Treasurer failed to perform the contract because the Attorney General would not let her proceed and she did nothing to prevent him from doing so. This raises the troubling specter of our Attorneys General having the power to invalidate every contract entered into by state officials at his or her whim. It is also suggests that the Attorney General has the power to "go over the head" of the Treasurer in matters related to the duties of her office. Such a holding would appear to be at odds with our case law in this area.
Under our current state constitution, the Treasurer "in accordance with law, shall be responsible for the safekeeping and investment of monies and securities deposited with him." Ill. Const. 1970, art. V, § 18. Although our Constitution does not provide a precise explanation of the Treasurer's duties, this court has noted that
"[i]n the absence of a constitutional definition of his powers and duties the primal functions of a treasurer are necessarily implied. He is required to *367 **844 perform the duty of receiving and safely keeping the public funds which are entrusted

to him, even in the absence of a statute. The very name given to his office denotes his obligation in this regard and the constitution implies it. Both the power and the duty of receiving and safely keeping the public funds entrusted to him are within the purview of the powers and duties which are inherent in his office and in no way depend upon the authority of the General Assembly. He can neither be deprived of the power nor relieved of the duty." People ex rel. Nelson v. West Englewood Trust & Savings Bank, 353 Ill. 451, 465, 187 N.E. 525 (1933). Moreover, the Treasurer, under the terms of the Trust Agreement, was made the state officer responsible for directing the trust activities, a trust which was funded with state monies.
Here, it is clear that the Treasurer believed that she had the authority to enter into the agreements and, until the time the Attorney General intervened, was prepared to close on the deal because she believed that it represented the best financial deal the state could get. These actions are consistent with her authority under the Trust Agreement and under her general duties as Treasurer. The Attorney General then stepped into the matter and asserted both his legal and financial opinions over it. I believe that once the Treasurer signed the agreements with plaintiffs, it was too late for the Attorney General to offer his opinion as to the validity of the agreements. Had the Attorney General had doubts about the legality of the Treasurer's actions, the better approach would have been for him to have initiated, as the state's chief legal officer, some type of injunctive action to preclude the sale in which a judicial determination regarding how many of this state's constitutional officers were needed to authorize these agreements could be made. In fact, the Attorney General's office's "Guidelines" suggest that this is the proper course of action to take in such instances. See appendix ("Statement of Policy of the Attorney General Relating to Furnishing Written Opinions, Adopted March 29, 1962"). [FN5] The legal questions regarding the authority to enter into the agreements are, at the end of the day, questions that can only be resolved with definitiveness by the judicial branch. Attorney General opinions are advisory in nature and are not binding upon the state or the courts. Bonaguro v. County Officers Electoral Board, 158 Ill.2d 391, 199 Ill.Dec. 659, 634 N.E.2d 712 (1994); W. Scott, The Role of Attorney General's Opinions in Illinois, 67 N.W. L.Rev. 643 (1972). Thus, we do not know whether the Attorney General's opinion is correct--the analysis used in today's opinion is such that judiciary need never determine whether that opinion withstands scrutiny.

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See 216 Ill.2d at 266-67, 296 Ill.Dec. at 837-38, 836 N.E.2d at 360-61 (expressing "no opinion" as the correctness of the Attorney General's opinion). Unfortunately, the court's treatment of this issue prevents our courts from addressing any of these important matters.
FN5. The Guidelines give four examples of situations in which no opinion will be issued. At least three of the four situations indicated in the guidelines are arguably at play in this case, including (i) opinions will not be furnished regarding the exercise of executive judgment, (ii) opinions should not be requested unless a bona fide need exists by the party requesting it with respect to the performance of his or her official duties, and (iii) opinions should not be furnished in cases of difficult or important questions of law and resort should be made to a declaratory judgment action. See appendix ("Statement of Policy of the Attorney General Relating to Furnishing Written Opinions, Adopted March 29, 1962").
*368 **845 The primary case upon which the court relies, Smith v. Jones, 113 Ill.2d 126, 100 Ill.Dec. 560, 497 N.E.2d 738 (1986), can be distinguished in that the plaintiffs there did not allege a violation of the law. Indeed, the complaint itself recognized that the state official's actions in question were done "pursuant to the letter of the [Lottery] Act and the rules and regulations thereunder." (Emphasis in original.) Smith, 113 Ill.2d at 132, 100 Ill.Dec. 560, 497 N.E.2d 738. The court in Smith stressed that the allegations of the complaint were only that the official exceeded his authority by breaching the contract. In contrast, the allegations here are that the Treasurer abdicated her authority to the Attorney General. Plaintiffs argue that the contract was breached, not because the Treasurer was following the letter of the law, but was allowing, contrary to the constitution and her duty under the Mortgage Program, another state official to make calls that she alone had the authority and the discretion to make. Whereas what was involved in Smith was, in the court's words, "simply a drawing in which the amount of prize money due the plaintiffs is in dispute" (Smith, 113 Ill.2d at 133, 100 Ill.Dec. 560, 497 N.E.2d 738), what is involved here is whether it is proper for a constitutional officer to pass her duties on to another constitutional officer.
As noted previously, one of the purposes of sovereign immunity is to preserve the state's coffers. Ironically, the court's decision to invoke the doctrine

here does more to harm those coffers than to protect them. The record is replete with references to the financial cost to the state in maintaining the initial loans. The agreement reached by the Treasurer and the plaintiffs had many benefits--the first of which was that state would no longer be liable for the hotel properties, which had the potential to end up in foreclosure. The state was also to receive more money than was previously offered by other potential buyers. The record contains no mention of the current financial status of the loans, and the parties have not apprised us of any change to that status. As a result, there is no reason for this court to ignore the record evidence in this case, namely, that the agreements reached by the Treasurer had many financial benefits for the state. Based on the facts as they are currently before us, it is my belief that the application of sovereign immunity to this case frustrates, rather than serves, the goal behind the doctrine.
In my view, the court's opinion simply concludes that any errors made by the Treasurer in this case constitute errors of contract law. I believe this approach fails to address the crux of plaintiffs' arguments. The question is not whether the Treasurer made a mistake in interpreting a contract or a trust agreement. Rather, the question is whether the Treasurer abdicated her duty by allowing her actions to be dictated by the Attorney General knowing that the financial interests of the state were better served by closing on the agreements. The court states that the Treasurer "should not be placed in the position of having to refuse to hear legal advice in order to avoid violating the constitution." 216 Ill.2d at 266, 296 Ill.Dec. at 837, 836 N.E.2d at 360. I am not advocating putting the Treasurer in the position of "refusing to hear legal advice." The Treasurer in this case did not have to "refuse to hear" the Attorney General's advice, but she did have an obligation to refuse to follow that advice when she believed that the advice was not in the best interests of the state. The record makes clear that the Treasurer publicly and openly disagreed with the Attorney General on every level--she believed that her agreements with plaintiffs were valid and that the deal was in the financial interests of the state. *369 **846 When such conflicts arise amongst constitutional officers, the solution is not for one to "back down" to the other as the court seemingly suggests today. I am concerned about this because I believe this case, at root, represents the ability of our citizens to trust and have faith in the actions of our public officials. They need to trust, for example, when dealing with a state treasurer in negotiations such as these, that another constitutional officer will not be able to "kill" the

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deal with such unfettered power. Today's opinion certainly does not allay fears that dealings with state officials are not fair and evenhanded.
I also find another aspect of the court's opinion troubling. The court notes that the proper tribunal for the adjudication of this claim is the Court of Claims. Plaintiffs here, however, are seeking specific performance. During oral argument, the parties were asked whether the Court of Claims can provide the remedy of specific performance. It would appear from the conclusion reached by this court that the implicit answer to that question is yes. The Court of Claims, however, has persistently recognized that it cannot grant equitable relief (see Garimella v. Board of Trustees of the University of Illinois, 50 Ill. Ct. Cl. 350 (1996) (and cases cited therein)) despite pronunciations by this court and our appellate court which would appear to take a contrary view. See Ellis v. Board of Governors of State Colleges & Universities, 102 Ill.2d 387, 80 Ill.Dec. 750, 466 N.E.2d 202 (1984); Management Ass'n of Illinois, Inc. v. Board of Regents of Northern Illinois University, 248 Ill.App.3d 599, 188 Ill.Dec. 124, 618 N.E.2d 694 (1993); Brucato v. Edgar, 128 Ill.App.3d 260, 83 Ill.Dec. 489, 470 N.E.2d 615 (1984). Given the differing opinions that exist on this issue and the fact that questions were raised at oral argument with respect to it, I would order additional briefing on the matter so that our opinion in this case would speak clearly on this important issue.
In light of the above, I am unable to join in my colleagues' opinion and respectfully dissent.
APPENDIX (SEAL)
STATEMENT OF POLICY OF THE ATTORNEY GENERAL RELATING
TO FURNISHING WRITTEN OPINIONS Adopted March 29, 1962
The Attorney General of the State of Illinois makes the following statement of policy relating to the constitutional and statutory duty to give written opinions.
A. Persons to Whom Opinions Will Be Issued 1. The Attorney General will furnish written opinions as required by law to the Governor and other elected and appointed State officers upon legal or constitutional questions relating to the duties of those officers, respectively. 2. The Attorney General will furnish written opinions to the officers of either branch of the General Assembly and chairpersons and minority spokespersons of committees thereof on matters that relate to their duties as such.

3. The Attorney General will consult with and advise the several State's Attorneys in matters relating to the duties of their offices and will furnish written opinions to State's Attorneys in matters relating to their official duties, when appropriate. *370 **847 4. The Attorney General is not authorized to furnish written opinions to the officers of, or attorneys for, public corporations, municipal corporations, townships or other policital subdivisions of the State, in the absence of specific statutory authority providing therefor. 5. The Attorney General is not authorized to furnish opinions to private persons or entities. B. Form in Which Opinion Requests Should Be Made 1. Requests must be in the form of a letter and addressed to the Attorney General, attention Opinions Bureau, 500 South Second Street, Springfield, Illinois 62706. 2. All requests must contain a clear, concise question of law and a complete statement of the facts describing the situation out of which the legal issue arises. The Attorney General will not seek out the facts or infer the question from enclosed correspondence. All requests should name a person whom the staff of the Attorney General may contact to discuss the request. 3. Requests made by executive officers, by chairpersons, directors, heads or executive secretaries of boards, commissions, departments and agencies of the State, by officers of the General Assembly and its committees and commissions and by State's Attorneys must be signed or endorsed by such officers. 4. Requests from officers under the jurisdiction of the Governor must also be forwarded through his office, in accordance with his policy. C. Situations in Which No Opinion Will Be Issued 1. The Attorney General will not furnish opinions regarding the exercise of executive judgment or discretion, nor on questions of fact. 2. The Attorney General will not furnish opinions on questions scheduled for determination by the courts. 3. No opinion should be requested unless a bona fide need exists by the party requesting it with respect to the performance of his or her official duties. 4. For a particularly difficult and important question of law, officials should resort to a declaratory judgment action whenever practicable, and the Attorney General may recommend this or other courses of action that may be more appropriate than the issuance of an opinion. D. Miscellaneous Provisions

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1. Officers requesting opinions and interested private parties or other governmental agencies may submit memoranda of law and policy and other statements and material for the consideration by the Attorney General. Such material should be submitted to the attention of the Opinions Bureau in the Springfield office of the Attorney General. 2. All official opinions of the Attorney General are signed by the Attorney General. Informal opinions and other letters signed by Assistant Attorneys General are not official opinions. 3. All opinions are on file in the Attorney General's office in Springfield. *371 **848 4. These guidelines do not apply to the furnishing of interpretive opinions by the Attorney General as administrator of the Franchise Disclosure Act of 1987 (815 ILCS 701/1 et seq.) 5. In order for the Attorney General to act in the

best interests of the public and the State, all guidelines are subject to exception where special circumstances can be shown to warrant an exception.
Please note that it is very helpful for the Attorney General to be apprised of all background information relating to an opinion request. Further, any information relating to the practical effect of any particular resolution of a question posed should be included with a request for an opinion.
216 Ill.2d 250, 836 N.E.2d 351, 296 Ill.Dec. 828
END OF DOCUMENT

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EXHIBIT G

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Court of Claims of Illinois. A-RELIABLE AUTO PARTS & WRECKERS, INC,
Claimant, v.
THE STATE OF ILLINOIS, Respondent. (No. 00-CC-1562 Claim Dismissed.)
ORDER filed January 12, 2001. VINCENT BRIZGYS, Attorney for Claimant.
JAMES E. RYAN, Attorney General (TOMAS A. RAMIEREZ, Assistant Attorney General, of counsel), for Respondent.
EPSTEIN, J.
ORDER *1 This replevin claim against the Secretary of State for the return of the Claimant's confiscated motor vehicle and alternatively for damages, is before the court on the issue of this court's jurisdiction to issue writs of replevin. This jurisdictional issue was raised by the court (order of October 13, 2000), and has been separately briefed by the parties. Also pending is the Claimant's motion for summary judgment and the Claimant's motion to amend his complaint to abandon the damages claim, both of which were deferred pending disposition of the jurisdictional issue. (Ibid.)
The Respondent contends that this court lacks authority to issue writs of replevin, based on the limited jurisdiction granted in/8 of the Court of Claims Act (705 ILCS 505/8), and this court's decisions in Garimella v. Board of Trustees of the University of Illinois, 50 Ill.Ct.Cl. 350 (1996) (Court of Claims lack authority to issue injunctions) and Rudolph v. State of Illinois et al., 53 Ill.Ct.Cl58 (No. 94 CC 0311, filed October 4, 2000) (Court of Claims lack authority to issue writs of mandamus).
The Claimant urges that because the replevin claim asserts that the Secretary of State and its police acted within the scope of [their lawfully authorized duties when the police seized plaintiff's [sic] vehicle. [and] does not allege that the State agency or employee acted outside the scope of its authority or in violation of the law, exclusive jurisdiction must lie in the Illinois Court of Claims Healy v. Vaupel, 131 Ill.2d at 311. Claimant contends that the issue in this case concerns the Secretary of State's interpretation of the Vehicle Code and that this court is the sole forum in which to resolve those statutory construction issues.

Claimant also relies on Management Association of Illinois, Inc. v. Board of Regents of Northern Illinois University, 248 Ill.App.3d 599, 618 N.E.3d 697 (1993) and Ellis v. Board of Governors of State Colleges and Universities, 102 Ill.2d 387, 466 N.E.2d 202 (1984) for the proposition that this court has jurisdiction to grant injunctions against the State.
We agree with the Claimant that this court has jurisdiction over the subject matter of the dispute concerning the Secretary of State's seizure of Claimant's property pursuant to a State statute. That much is clear under our jurisdictional statute (/8, Court of Claims Act; 705 ILCS 505/8) and is confirmed by Healy v. Vaupel, supra. Thus we have jurisdiction to hear and determine this claim under/8 and could render a declaratory judgment or could award damages if appropriate.
*2 However, our jurisdiction in the sense of authority or empowerment to grant the remedy of a writ of replevin is a very different matter. This court has simply not been authorized by statute to issue orders mandating or prohibiting actions by any State officer or agency. What we said in Rudolph, supra about mandamus applies identically to replevin:
The jurisdictional issue concerns our authority to issue writs of mandamus. Although, mandamus was one of the common law writs, and is a legal rather than equitable remedy as a matter of law and of history, we believe that the issue of this court's authority to grant such relief is governed by Garimella v. Board of Trustees of the University of Illinois, 50 Ill.Ct.Cl. 350 (1996) In Garimella, we held that this court lacks the authority to grant injunctive (equitable) relief, because the legislature had not conferred such power upon this court. Writs of mandamus directed at State officials or agencies are functionally equivalent to mandatory injunctions. The General Assembly has not conferred such remedial powers on this court in any form. (Moreover, in the years since Garimella, supra, the General Assembly has not statutory overruled our decision or empowered us to issue directives to State agencies or officers Rudolph, supra at 62).
The decisions in Management Association of Illinois, Inc., supra, and Ellis, supra, on which Claimant also relies, were reviewed and distinguished in our opinions in Garimella, supra. Neither decision provides or identifies a source of authority for this statutory court to issue any kind of mandatory or

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prohibitory directives against the State.
Accordingly, we must dismiss the Claimant's plea for a writ of replevin for lack of jurisdiction. That, however, does not dispose of the entirety of this claim. There remains a pending alternative claim for damages, and claimant may seek to amend to pursue other relief as well. We will allow the claimant time to amend its complaint or to renew either or both of its pending motions.
Accordingly, it is hereby ORDERED: 1. Claimant's prayer for a writ of mandamus is dismissed for lack of jurisdiction; 2. This claim shall remain on the active docket, and Claimant's motions for summary judgment and for leave to amend its complaint are continued; and 3. Claimant is granted leave to file an amended complaint that does not contain a plea for a writ of replevin within 35 days after the date of this order; 4. Within 35 days after the date of this order, Claimant shall file a pleading renewing or abandoning its pending motions to amend and for summary judgment.
Not Reported in N.E.2d, 54 Ill.Ct.Cl. 455, 2001 WL 34677738 (Ill.Ct.Cl.)
END OF DOCUMENT

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EXHIBIT H

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99-CC-2001
Court of Claims of Illinois. ACE COFFEE BAR, INC., Claimant,
v. THE UNIVERSITY OF ILLINOIS, Respondent.
Opinion filed May 14, 1999.
JURISDICTION--Court lacks injunctive authority but can make declaratory adjudications. Although the Court of Claims has no authority to issue injunctive relief, the Court can make declaratory adjudications in appropriate cases pursuant to its authority to hear and determine claims against the State.
JURISDICTION--contract jurisdiction conferred by Court of Claims Act. Section 8(b) of the Court of Claims Act is the Court's contract jurisdiction and authorizes the Court to adjudicate claims against the State founded upon any contract entered into with the State of Illinois.
JURISDICTION--vendor's claim alleging improper bidding process dismissed for lack of jurisdiction. A vendor's claim for declaratory and injunctive relief against a university arising out of an allegedly improper bidding process awarding a contract was dismissed for lack of subject matter jurisdiction, since the Court has no injunctive authority, and with regard to the vendor's request for declaratory relief, the Court lacked section 8(b) contract jurisdiction because the bid dispute was not a claim "founded upon" a contract within the meaning of the statute.
CALLAHAN, FITZPATRICK, LAKOMA & MCGLYNN (MICHAEL G. CONELLY, of counsel), for Claimant.
QUINLAN & CRISHAM, LTD. (MICHAEL I. ROTHSTEIN, of counsel), for Respondent.
OPINION
EPSTEIN, J.
*1 This claim for declaratory and injunctive relief against the University of Illinois is before the Court on the Respondent's section 2--619 motion to dismiss for want of subject matter jurisdiction and its section 2--615 motion to dismiss for failure to state a cause of action. Claimant has belatedly filed a response to part of the section 2--619 motion, which we allow

instanter, but not to the section 2--615 motion. 735 ILCS 5/2--615, 2--619.
Nature of the Claim This claim arises out of a competitive bidding by the Respondent University for the vending food and beverage services at, apparently, its Chicago campus. Claimant's complaint alleges that the Respondent issued a request for proposals ("RFP") in late 1997 that solicited competitive bids for a 5-year contract to provide those vending services, which was followed by a series of communications between University officials and prospective bidders in which the requirements and conditions of the solicited bids were discussed and the University is alleged to have made representations as to particular bid requirements (as to how commission rates could and could not vary for various components of the proposed contract). See pars. 4-10 of complaint.
Claimant alleges that the University improperly awarded the contract to a bidder that violated the bidding requirements (id., par. 11), and asks for declaratory and injunctive relief--presumably at least partly in the alternative--to: (i) declare the winner's bid improper, declare all bids rejected, and clarify the RFP terms; (ii) enjoin the "enforcing" of the contract that was entered; (iii) order the Respondent to reconsider the bids that conformed to the RFP and to ascertain the best bid; and (iv) order a rebidding. Id., prayer, at 4.
The Section 2--619 Jurisdictional Motion We necessarily take up the section 2--619 motion first, as it attacks this Court's jurisdiction, which is always the threshold inquiry. Respondent's motion in this case attacks both aspects of subject matter jurisdiction: (1) remedial jurisdiction, i.e., the Court's authority or power to grant the relief requested, and (2) adjudicatory jurisdiction, i.e., the Court's authority to decide a particular issue or claim. Specifically, Respondent asserts that this Court lacks authority to make declaratory judgments or to grant injunctions; and that we cannot adjudicate this claim under our contract jurisdiction (see section 8(b) of the Court of Claims Act, 705 ILCS 505/8(b)) because there was no contract between the Claimant and the Respondent on which to predicate such jurisdiction.
Remedial Jurisdiction: Injunctions and Declarations *2 We need not detail the parties' arguments on our injunctive power, because this Court has firmly held that we have none. (Garimella v. Board of Trustees of the University of Illinois (1996), 50 Ill. Ct. Cl. 350.) Claimant's arguments and the decisions it cites were

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considered in Garimella, supra. Since our decision in Garimella, the General Assembly has not seen fit to enact a statute granting us injunctive power and the Supreme Court has not addressed the issue. We adhere to Garimella. This Court lacks authority to issue the injunctive orders requested in this case.
We reject, however, Respondent's contention that this Court lacks jurisdiction to make declarations of rights vis-a-vis the State. Although that authority is not spelled out explicitly in the Court of Claims Act, it is implicit in the statute's grant of authority to adjudicate--to "hear and determine" claims against the State (705 ILCS 505/8), and this Court has issued declarations with and without monetary awards since virtually the Court's creation in 1903 under several successive enabling Acts, and has previously upheld our declaratory jurisdiction. See, e.g., Toledo, Peoria & Western R.R. Co. v. State (1995), 48 Ill. Ct. Cl. 25, 27, and cases cited therein.
We observe that there are cases where a declaration by this Court--as the Court with the "exclusive jurisdiction" under the State Immunity Act (745 ILCS 5/1 et seq.) and under the Court of Claims Act--can be the only legal remedy for citizens who assert property and contract rights against the State. Such rights cannot ordinarily be enforced in the constitutional Courts, which are ousted of jurisdiction by statutory sovereign immunity unless the State elects to initiate a suit there, which the State may or may not ever choose to do.
Even when the State does elect to sue in the Circuit Court, the defendant's right to countersue the State in that lawsuit remains limited by sovereign immunity. Even when the State opens the door to Circuit Court jurisdiction, sovereign immunity closes that courthouse door to the point where only "defensive counterclaims that are asserted for the purpose of defeating the state's action, and not for the purpose of obtaining an affirmative judgment against the state" are permissible. See People ex rel. Manning v. Nickerson (1998), 184 Ill. 2d 245, 249-250, 702 N.E.2d 1278, 1280, 234 Ill. Dec. 375, 377 (State's claim for injunction to remove building from State land and for damages for use of the property, defendant's counterclaim for quiet title and ejectment allowed as same issue, but tort counterclaims barred by sovereign immunity).
*3 The Nickerson decision points out a significant category of cases where this Court's declaratory judgment authority is crucial. These are cases where a citizen disputes the State's title to real property, such as State easements and other defeasible or

contingent interests in land. Without declaratory relief from this Court, a landowner or property Claimant may have no remedy at all to adjudicate their claimed rights. The ability to resolve legal title, which is critical to the free alienability of land and has been a fundamental precept of our EnglishAmerican legal system for almost a thousand years, strongly militates for some Court to have jurisdiction to determine and declare legal ownership.
Although Illinois' sovereign immunity doctrine bifurcates jurisdiction between the constitutional Courts and this statutory Court, there is no apparent sovereign immunity reason to prohibit declaratory adjudications of land ownership whenever the State claims to be in title, as long as it is done in the proper forum. Indeed, our Supreme Court has held that such title disputes must be decided by this Court (Gordon v. Department of Transportation (1983), 99 Ill. 2d 44, 457 N.E.2d 403, 75 Ill. Dec. 409; see also, Sass v. Kramer (1978), 72 Ill. 2d 485, 381 N.E.2d 975, 21 Ill. Dec. 528), which is inhibited if not prohibited if declaratory judgments are not allowed. And if allowed for that purpose, it is not obvious why they are impermissible for other kinds of claims that may also be "heard and determined" by this Court. Certainly the Court of Claims Act makes no such distinction.
We also observe that, although less common, disputes over personalty can also generate ownership claims in this Court. This Court has even decided the ownership of a submarine embedded in Illinois (albeit in submerged ground). See, A & T Recovery, Inc. v. State (1996), 48 Ill. Ct. Cl. 490.
While these considerations are not a basis for expanding the purely statutory jurisdiction of this Court beyond the bounds of the statutory language, they are a strong reason not to adopt a cramped view of our authority in cases that we are given the power to "hear and determine."
For all of these reasons, where the law grants this Court jurisdiction to "hear and determine" a matter (705 ILCS 505/8), and that matter will be "determined" by a declaration of rights, this Court cannot decline to decide the claim merely because a monetary award is not sought or does not then lie. This Court can grant declarations in appropriate cases. This conclusion leads us to the second half of Respondent's section 2--619 motion: whether we have jurisdiction to decide this particular claim.
Adjudicatory Jurisdiction *4 Respondent's section 2--619 motion contends that

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this claim does not fall within section 8(b) of the Court of Claims Act (705 ILCS 505/8(b)) (the "Act"), which is the sole jurisdictional basis asserted by this Claimant. (See par. 3 of complaint.) Section 8(b) is this Court's "contract" jurisdiction that authorizes us to adjudicate "claims against the State founded upon any contract entered into with the State of Illinois." The jurisdictional analysis of whether this Court is empowered to "hear and determine" this claim under section 8 of the Court of Claims Act is, therefore, whether this is a claim "founded upon" a contract of the University.
Respondent argues that there is no contract between the Respondent and the Claimant that might support this Court's jurisdiction, and vigorously contends that the RFP itself--which the University issued and to which the Claimant and others responded--is not itself a contract and creates no protectible property (contract) rights under applicable Illinois law, citing Polyvend v. Pickorius (1979), 77 Ill. 2d 287, 395 N.E.2d 1376, but is merely an invitation for the submission of contract offers to the bid solicitor, here the University, citing Hassett Storage Warehouse, Inc. v. Board of Election Commissioners (1st Dist. 1979), 69 Ill. App. 3d 972, 387 N.E.2d 785; Premier Electric Construction Co. v. Board of Education of City of Chicago (1st Dist. 1979), 70 Ill. App. 3d 866, 388 N.E.2d 1088.
We agree that under Illinois law the RFP is not itself a contract and that an RFP does not give rise to contract rights or even, under Polyvend, supra, to protective property rights for due process purposes. Thus, it is fairly clear that no contract claim in the ordinary sense of that term--i.e., a claim sounding in contract, asserting rights that arise by virtue of a contract--is or can be asserted on the basis of the RFP. That exhausts the arguments advanced to us and compels the conclusion that a section 8(b) contract claim is not presented here.
However, this straightforward contract claim analysis leaves one potentially dangling issue. Given the statutory language of section 8(b), we must ask whether this bid dispute can be said to be "founded upon" the one contract that is alleged in the complaint, i.e., the contract awarded to the successful bidder that is challenged here on the ground that it was improperly awarded. Although it seems apparent that this dispute was triggered by the award of the contract, we conclude that that does not make this bid dispute a claim "founded upon" that contract. This claim is ultimately about the bid process, and only incidentally about the awarded contract. In reaching this conclusion, we make no categorical

pronouncement on whether or not this Court's section 8(b) contract jurisdiction can extend beyond straightforward breach of contract and contract construction claims. The Court holds only that its section 8(b) jurisdiction does not reach this bidding dispute in which an unsuccessful bidder seeks to remedy an allegedly improper bidding process.
Conclusion and Order *5 For the foregoing reasons, it is hereby ordered: This claim is dismissed for want of subject matter jurisdiction under section 8(b) of the Court of Claims Act.
Not Reported in N.E.2d, 51 Ill.Ct.Cl. 395, 1999 WL 33246477 (Ill.Ct.Cl.)
END OF DOCUMENT

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EXHIBIT I

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Only the Westlaw citation is currently available. United States District Court,N.D. Illinois, Eastern Division. Isaac D. JOHNSON, Plaintiff, v. BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, Defendant. No. 03 C 00236.
Sept. 11, 2003.
John F. O'Meara, Attorney at Law, Chicago, IL, Isaac D. Johnson, pro se, Northbrook, IL, for plaintiff. Robert E. Arroyo, Paul A. Patten, Jackson Lewis LLP, Chicago, IL, for defendant.
MEMORANDUM OPINION AND ORDER
GUZMAN, J. *1 Plaintiff Isaac D. Johnson (“Johnson”) has sued defendant Board of Trustees of the University of Illinois (“Board”). The Board has moved to dismiss Count II of the complaint pursuant to Fed.R.Civ.P. (“Rule”) 12(b)(6). For the reasons provided in this Memorandum Opinion and Order, the Court grants the Board's motion to dismiss Count II of the complaint.
FACTS
On March 17, 2003, plaintiff Johnson filed a complaint against defendant Board of Trustees of the University of Illinois that alleges in Count I, race discrimination under Title VII of the Civil Rights Act, and in Count II, breach of the contract and settlement agreement stemming from an earlier case involving the parties. Compl. at p. 8 ¶ 1, 51-52. The motion to dismiss deals solely with Count II.
The settlement agreement arose as a result of settling Johnson v. Univ. of Illinois, No. 90 C 0968. Those who signed the agreement include Johnson, two of Johnson's attorneys, counsel for the University of Illinois at Chicago, and the controller and secretary of the Board of Trustees of the University of Illinois. Compl. Ex. A at 5. Contained within the contract is no agreement that the Northern District of Illinois shall have jurisdiction over enforcement of the contract. Compl. Ex. A. Judge Duff's final agreed order in this case stated: IT IS HEREBY ORDERED THAT: Petitioner Isaac D. Johnson's second petition for rule to show cause is dismissed with prejudice, all matters

at issue having been fully compromised and settled, except that petitioner may file a petition for attorneys' fees and costs with respect to his second petition for rule to show case and the settlement thereof.
Id.
The Board moves to dismiss Count II for want of jurisdiction, arguing, inter alia, that the Illinois Court of Claims has exclusive jurisdiction over enforcement of contracts that involve the State as a party. Johnson responds, inter alia, that the Court retained jurisdiction over the settlement, and that the Board waived immunity by appearing before the Court pursuant to which the Agreed Order was entered.
DISCUSSION
Rule 12(b)(6) provides that a claim can be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Thus, the rule authorizes a court to dismiss a claim based on an issue of law. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989). When making a determination as to whether a claim should be dismissed under Rule 12(b)(6), the court needs to assume that all facts alleged are true. Id., see also Nat'l. Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 114 S.Ct. 798, 803, 127 L.Ed.2d 99 (1994). A claim must be dismissed if “as a matter of law, it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Neitzke, 109 S.Ct. at 1832 (internal citation omitted). Thus, a “patently insubstantial complaint may be dismissed ... for want of subjectmatter jurisdiction.” Id.
*2 A state is a sovereign and is therefore, immune from suit. Coll. Sav. Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 119 S.Ct. 2219, 2223, 144 L.Ed.2d 605 (1999). The State can waive its right to sovereign immunity by consenting to suit. Id. The test for determining whether immunity from federal-court jurisdiction has been waived by the State is a “stringent one.” Id. Thus, a State does not consent to suit in the federal courts merely because it consents to suit in one of its own courts. Id.
The “classic” way to waive immunity is by “intentional relinquishment or abandonment of a known right or privilege.” Id. (internal citation omitted). As such, a court must be shown that the State waived sovereign immunity either by “the most

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 59 of 61

express language or by such overwhelming implications ... as will leave no room for any other reasonable construction.” Ranyard v. Bd. of Regents, 708 F.2d 1235, 1239 (7th. Cir.1983).
In Illinois, the Court of Claims has exclusive jurisdiction to hear and determine claims against the State founded upon any contract entered into with the State of Illinois. 705 ILCS 505/8. The Board of Trustees of the University of Illinois is an arm of the state, is not autonomous or independent of the State of Illinois, and therefore, contractual suits against it must be filed in the Court of Claims. Tanner v. Bd. of Tr. of the Univ. of Illinois, 48 Ill.App.3d 680, 6 Ill.Dec. 679, 363 N.E.2d 208, 210 (Ill.App.Ct.1977), see also Ellis v. Bd. of Governors of State Coll. and Univ., 102 Ill.2d 387, 80 Ill.Dec. 750, 466 N.E.2d 202 (Sup.Ct.Ill., 1984) (holding that because the Board is the State for sovereign immunity purposes, all claims sounding in contract must be brought in the Court of Claims). Thus, simply because the State enters into and is obligated under a contract does not mean that it consents to suit in a place other than the Court of Claims. Raymond v. Goetz, 262 Ill.App.3d 597, 200 Ill.Dec. 13, 635 N.E.2d 114 (Ill.App.Ct.1994).
When the contract is a settlement agreement, the district court may have the power to enforce it under two circumstances: 1) where there is an independent basis for jurisdiction or 2) when the court retained jurisdiction over the settlement agreement in its final order. VMS Sec. Litigation v. Prudential Sec. Inc., 103 F.3d 1317, 1321 (7th. Cir.1996). In Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994), the Supreme Court held that when a district court simply dismisses a claim under Fed. Rule Civ. Pro. (“Rule”) 41(a)(1)(ii), “by filing a stipulation of dismissal signed by all parties who have appeared in the action and causes the dismissal to be with prejudice, if the stipulation so specifies,” “jurisdiction of the court over disputes arising out” of that agreement is not implied. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 114 S.Ct. 1673, 1675, 128 L.Ed.2d 391 (1994) (internal citation omitted). Instead, because enforcement of the settlement agreement “is more than just a continuation or renewal of the dismissed suit,” the district court must require its own basis for jurisdiction. Id. at 1675-76.
*3 For example, in United Steel Workers of Am. v. Libby, 895 F.2d 421 (7th. Cir.1990), the district court entered an order of dismissal that read as follows: The Court having approved the Settlement Agreement, Response and Covenant Not to Sue,

entered into by the parities ... IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Complaint and the Counterclaim be and hereby are dismissed, with prejudice, each party bearing its own costs and attorney's fees.
United Steel Workers of Am. v. Libby, 895 F.2d 421, 422 (7th. Cir.1990). The terms of the settlement agreement were made a part of the record after the judge and the parties signed the settlement agreement. Id. When one of the parties later sought assistance from the district court in interpreting the settlement agreement, the Seventh Circuit held that the district court's outright dismissal of the case did not leave the court any basis for subsequent exercise of jurisdiction with regards to the settlement agreement. Id. at 422, 423-24. The court reasoned that in order for the district court to have jurisdiction over the settlement agreement, it needed to be possible to infer that the judge intended to retain jurisdiction. Id. at 423. There, the court stated that there was nothing in the order of dismissal to indicate any intention to retain jurisdiction over completion of the parties' agreement. Id.
In this case before us the Court lacks jurisdiction with regard to the settlement agreement. First, there is no independent basis for jurisdiction. Illinois law clearly states that contract claims involving the State must be brought in the Court of Claims unless the State waives that requirement. Here, the Board is the state for contract purposes.
Thus, in order for the Court to have jurisdiction, waiver must be shown. However, there is no indication of intentional relinquishment or abandonment of the right to immunity by the Board. There is no express language used by the Board to waive its right contained within the settlement agreement. Thus, the Board did not waive its right.
Secondly, there is no showing that the Court retained jurisdiction over the settlement agreement entered into by Johnson and the Board. Like United Steel Workers, the ordered of dismissal entered by Judge Duff contained no words to indicate any inference or intention to retain jurisdiction over completion of the parties' agreement. The two orders are nearly identical, the main difference being with how attorney's fees and costs would be dealt. However, language stating that Johnson could file a petition for costs and attorney's fees has nothing to do with the actual enforcement of the settlement agreement. Therefore, the order did not leave the Court any basis for subsequent exercise of jurisdiction with regards to the settlement agreement.

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 60 of 61

CONCLUSION
For the foregoing reasons, the Court grants the Board's motion to dismiss Count II of the complaint [# 6].
*4 SO ORDERED
N.D.Ill.,2003. Johnson v. Board of Trustees of University of IL. Not Reported in F.Supp.2d, 2003 WL 22117778 (N.D.Ill.)
Briefs and Other Related Documents (Back to top)

• 2003 WL 23666252 (Trial Motion, Memorandum and Affidavit) Reply Memorandum in Support of Motion to Dismiss (Apr. 29, 2003) • 2003 WL 23666241 (Trial Motion, Memorandum and Affidavit) Plaintiff's Response to Defendant's Motion to Dismiss Count II (Apr. 14, 2003) • 2003 WL 23666229 (Trial Pleading) Answer and Affirmative Defenses to Count I of Complaint (Mar. 17, 2003) • 2003 WL 23666224 (Trial Pleading) Complaint (Jan. 13, 2003) • 1:03CV00236 (Docket) (Jan. 13, 2003)
END OF DOCUMENT

Case 1:01-cv-09551 Document 51 Filed 02/10/2006 Page 61 of 61
CERTIFICATE OF SERVICE
JOHN E. HUSTON, one of the attorneys of record for the Defendant, hereby certifies that he caused a copy of the foregoing DEFENDANT’S RESPONSE TO PLAINTIFF’S MEMORANDUM REGARDING ENFORCEMENT OF SETTLEMENT AGREEMENT to be served by the Court’s ECF/electronic mailing system upon the following:
Sarah Megan Eliot Ababanel Bernard H. Shapiro Prairie State Legal Services 350 S. Schmale Rd., #150 Carol Stream, IL 60188
/s/John E. Huston____

 </s> Case 1:01-cv-09551 Document 6 Filed 02/20/2002 Page 1 of 16

UNITED STATES DISTRlCT COURT

NORTHERN DISTRlCT OF ILLINOIS EASTERN DIVISION

20U2 FEB 20 PH 2= 57

DONNA RADASZEWSKI, Guardian, on behalf )

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U.S. DI57RIC1- COURT

of Eric Radaszewski,

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Plaintiff,

)

)

vs.

)

Civil Action

)

No. 01 C 9551

JACKIE GARNER, Director of Illinois

)

Judge Darrah

Department of Public Aid,

)

)

Defendant.

)

DEFENDANT'S MEMORANDUM IN OPPOSITION TO PLAINTIFF'S MOTION FOR REMAND

I. INTRODUCTION

Eric Radaszewski, Plaintiffs son, suffers from brain cancer and has lost many mental and

physical functions. Before he turned 21 years old, Eric, who lives with his parents, received 16

daily hours of in-home nursing funded by a Medicaid waiver allowing the Illinois Department of

Public Aid (1tIDPAIt) to provide such care to disabled persons under age 21. In February, 2000,

IDPA determined that, after Eric turned 21, he would be entitled to an exceptional care rate of

$4,593 per month under the Medicaid Home Services Waiver Program. Plaintiff alleges that this

rate, which was capped at the cost of alternate care at a skilled nursing facility, is only sufficient

to provide Eric with approximately five hours per day of in-home nursing. IDPA's payments for

Eric's care were reduced on August 4, 2000, his 21 sl birthday.

On September 1, 2000, Plaintiff brought an action in the United States District Court for

the Northern District of Illinois against IDPA's Director. Plaintiff complained that reduction of

IDPA's funding violated the federal Medicaid statute, its implementing regulations and the

Case 1:01-cv-09551 Document 6 Filed 02/20/2002 Page 2 of 16

requirements of due process. Defendant argued that Plaintiff failed to state a cognizable federal

cause of action in that the Medic.aid Act did not create an entitlement to private duty nursing and

Plaintiff's allegations of a violation of Illinois' State Medicaid Plan only asserted a state law

claim. The District Court denied Plaintiffs motion for a preliminary injunction on November 6,

2000. The court concluded that it lacked subject matter jurisdiction because Plaintiff's claims

did not state any violation of the federal Medicaid Act or of the United States Constitution.

Plaintiff appealed this denial of injunctive relief to the United States Court of Appeals for the

Seventh Circuit. The Court of Appeals dismissed Plaintiffs federal action as moot on March 8,

2001. See Attachments to Memorandum in Support of Plaintiffs Motion for Remand

("Plaintiff's Attachments rt), Exhibit F. This dismissal was based on the approval by the Health

Care Financing Administrati()n ofthe United States Department o,fHealth and Human Services,

on February 2, 2001, of an amendment to the Illinois State Medicaid Plan wholly eliminating

,.

.

private duty nursing care as a covered service.

Meanwhile, on December 1,2000, Plaintiff brought the present action in the Circuit

Court ofthe Eighteenth Judicial Circuit, DuPage County, Illinois. The case originally stated by

Plaintiff's Complaint for Injunctive Relief was not removable to this Court because all four

counts were based on state law. Plaintiff complained that (1) IDPA's limitation of private duty

nursing services provided to adult Medicaid recipients constituted an invalid rule not adopted in

accordance with rulemaking procedures specified in Illinois' Administrative Procedure Act, 5

ILCS 100/1-1 et seq. (Count I); (2) IDPA violated Illinois' Medicaid Plan by failing to provide

Eric with the full amount of private duty nursing described in the Plan (Count II); (3) IDPA's

refusal to cover all the private duty nursing sought for Eric violated 89 Illinois Administrative

.

.

.

Code §140.435(b)(2) (Count III); and (4) Illinois' Medicaid Plan was a contract which IDPA

-2-

Case 1:01-cv-09551 Document 6 Filed 02/20/2002 Page 3 of 16
breached by failing to provide the full amount of private duty nursing included in that Plan to Eric (Count IV). On December 19,2000, the Circuit Court entered a temporary restraining order, effective until further court order, requiring IDPA to reimburse the 16 hours per day of private duty nursing received by Eric before he turned 21.
On September 7, 2001, Defendant moved the Circuit Court to vacate the temporary restraining order and dismiss this case as moot. Defendant's motion was based on (1) the federal government's approval on .fe~ruary?, 2001 of an amendrn~ntto Illinois' State Medicaid Plan removing coverage of private duty nursing service and (2) IDPA's promulgation, on September I, 2001, of amendments to its administrative rules striking all text relating to coverage of private duty and in-home nursing services. 89 Illinois Admininistrative Code §§140.435, 140.436. See 25 Hl.Reg. 11880 (September 14,2001). In response to Defendant's motion, on October 16, 2001, Plaintiff filed her Motion for Leave to File Supplemental Complaint and to Extend Temporary Restraining Order. See Plaintiffs Attachments, Exhibit G. Plaintiff maintained that, since the filing of her original Complaint, significant matters had occurred giving rise to additional claims requiring supplemental pleading and that these matters justified extension of the TRO. Although Plaintiff, in her proposed Supplemental Complaint for Injunctive Relief, realleged the four counts previously brought in her initial Complaint (Counts I-IV) and brought a new count alleging that IDPA had violated the Illinois Administrative Procedure Act in amending 89 Illinois Administrative Code §§ 140.435 and 140.436 (Count V), Plaintiff added two new counts alleging violations of federal law. Specifically, Plaintiff charged that (1) IDPA's failure to provide Eric the amount of in-home nursing she sought violated Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12132, and one of its implementing regulations, 28 C.F.R. §35.l30 (Count VI), and (2) IDPA's failure to provide the sought-for
-4-

Case 1:01-cv-09551 Document 6 Filed 02/20/2002 Page 4 of 16

amount of in-home nursing violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§794, and one of its implementing regulations, 28 C.F.R. §41.51 (d) (Count VII). See Plaintiffs

Attachments, Exhibit A.

On November 15,2001, the Circuit Court (1) denied Defendant's Motion to Vacate TRO

and Dismiss Case as Moot, (2) granted Plaintiffs Motion to Extend TRO, (3) granted Plaintiff

leave to file her supplemental Complaint instanter, and (4) granted Defendant 21 days to anSwer

Plaintiffs Supplemental Complaint. See Plaintiffs Attachments, Exhibit D.

On December 10,2001, Defendant filed her Answer to Plaintiffs Supplemental

Complaint for Injunctive Relief in Circuit Court. See Plaintiffs Attachments, Exhibit E. In

addition to answering the numbered paragraphs of Plaintiffs Supplemental Complaint,

Defendant asserted three defenses. Specifically, Defendant contended that (1) Counts I-IV of the

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Supplemental Complaint were mo~t, (2) Count VI was barred by the Eleventh Amendment to the

United States Constitution, and (3) Plaintiff could not bring Count VI against IDPA's Director.

.

.

Because Plaintiff had amended her Complaint to add claims arising under federal laws,

Defendant, pursuant to 28 U.S.C. §§1441 and 1446(b), filed a Notice of Remoyal with this Court

and the Circuit Court on December 14,2001. Plaintiff has now moved to remand this case to

state court. Defendant opposes Plaintiffs Motion for Remand for the following reasons.

II. ARGUMENT

A. Defendant's Notice of Removal Was Timely Filed

28 U.S.C. §1446(b) provides that:

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable ....

-4-

Case 1:01-cv-09551 Document 6 Filed 02/20/2002 Page 5 of 16

In the present case, though Defendant received copies of Plaintiffs Motion for Leave to File

Supplemental Complaint and her Supplemental Complaint for Injunctive Relief on October 15,

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2001, Defendant objected to Plaintiff's Motion and the state Circuit Court did not grant Plaintiff

leave to file her Supplemental Complaint until November 15, 2001. See Plaintiffs Attachments,

Exhibits C and D. Defendant filed her Notice of Removal on December 14,2001,29 days after
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the Circuit Court granted Plaintiff leave to amend her complaint and this case first became

removable due to addition of two federal law claims. Nevertheless, Plaintiff argues that

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Defe.~dant waitedtooloIl~\;£'i?$W:B*~,o,~J!§j~ft;~tJ~~.e~:W~:~•.,~h~§gd.11(}tfil~ her notice ofreIl1oval .

within 30 days of when she was served a copy of Plaintiffs amended pleading on October 15.

Plaintiff concedes that there is a split among district courtAecisions as to when the

statutory 30-day period for removal begins to run after a case not initially removable

subsequently becomes so through an amended pleading, but neglects to even cite, much less

distinguish, a case decided by the Seventh Circuit Court of Appeals which has definitively

resolvedany uncertainty in this jurisdiction. In Sullivan v. Conway, 157 F.3d 1092 (7th CiT.

1998), the only appellate court case to decide this issue, plaintiff contended that defendants

removed too late when they acted within thirty days after the state court granted a motion to

amend the complaint to add federal claims but more than thirty days after plaintiff made the

motion. Despite a dearth of appellate case law, the Seventh Circuitwas "confident that [plaintiff]

is wrong." 157 F.3d at 1094. The Court stated:

Until the state judge granted the motion to amend, there was no basis for removal.

Until then, the complaint did not state a federal claim. It might never state a

claim, since the state judge might deny the motion. [28 U.S.C. §1446(b)] speaks

of a motion or other paper tl1at discloses that the case is or has become removable,

not that it may sometime in the future become removable if something happens, in

this case the granting of a motion by the state judge. When the motion was

granted, the case first became removable, and it was promptly removed. It would

be fantastic to suppose that the time for removing a case could run before the case

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Case 1:01-cv-09551 Document 6 Filed 02/20/2002 Page 6 of 16

became removable ....

157 F.3d at 1094-95. See aJsoDo~li.~~v. Tea~eer's ~nsurallce and Annuity Association, 35
. :'."
F.Supp.2d 612,615 (W.D. Tenn.) 999)(thirty-day period for filing notice of removal did not

begin to run upon defendant's receipt of motion to amend complaint); Hibbs v. Consolidation

Coal Company, 842 rSupp. 215,217 (N.D. W.Va. 1994) (thirty-day period for removing case

from state court only began to run when state court granted plaintiffs motion to file amended

complaint); Schoonover v. West American Insurance Company, 665 F.Supp. 511, 514 (S.D.

Miss. 1987) (plaintiff s motion to amend complaint did not make case removable because state

court retained jurisdiction to deny leave to amend).

The district court cases from various other jurisdictions cited by Plaintiff in support of her

assertion that the time for removal of this case began running when she served Defendant with a

copy of her Motion for Leave to File Supplemental Complaint are flatly contrary tothe Seventh

Circuit's dispositive holding in Sullivan. Furthermore, as the court acknowledged in Webster v.

Sunnyside Corporation, 836 F.Supp. 629, 630 (S.D. Iowa, 1993), Plaintiffs position represents
: ~.: .:",
the tlview of a minority ofthepublishedtrial court decisions addr~ssing the language of [28

U.S.C. §1446(b)]." The decision in Bezy v. Floyd County Plan Commission, 199 F.R.D. 308,

314 (S.D. Ind., 2001), actually supports Defendant on the issue of removability, in that the court

refused to consider an amended complaint adding federal constitutional claims to state law

alleg~tions to be a removableple~din!S under §1446(b) until the state court granted plaintiff s

motion to amend. Butts v. Hansen, 650 F.Supp. 996 (D. Minn. 1987), is readily distinguishable

from the present case because it concerned the filing of a motion for a temporary restraining

order, not a motion for leave to amend a complaint. In Butts, plaintiffs' filing of a TRO motion

prior to the filing of their initial complaint alerted defendants to federal claims and rendered the

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Case 1:01-cv-09551 Document 6 Filed 02/20/2002 Page 7 of 16

case imediately removable, but in the case at bar Plaintiff filed an initial complaint stating only

state law claims and obtained a TRO solely on the basis of those state law claims. Although

Plaintiff afterwards simultaneousdly moved for an extension of the TRO as well as for leave to

file a supplemental complaint adding federal claims, her request to extend the TRO was itself

based on her new claims. See Plaintiffs Attachments, Exhibit G, Plaintiff's Motion for Leave to

File Supplemental Complaint and to ~xt~nd Temporary Restraining Order, ~4. Before the

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Circuit Court granted Plaintiff leaveto supplement her complaint, there was no certainty either

that there would be federal claims added to this case or that the TRO would be extended on the

basis of these new claims. Thus, under 28 U.S.C. §1446(b), Defendant was not required to

remove this case until after the Circuit Court granted Plaintiff leave to supplement her complaint.

In this case, Plaintiff s motion to supplement her complaint did not automatically amend

that complaint. Under Illinois law, Plaintiff was not entitled to amend her complaint as of right.

See 735 ILCS 5/2-616(a). In fact, Defendant opposed Plaintiffs motion to amend and the matter

was briefed by both parties. The Circuit Court granted Plaintiff's motion to amend on November

15,2001 and Defendant filed her Notice of Removal on December 14,2001, within the 30-day

period prescribed by 28 U.S.C. §1446(b). Indeed, under the holding in SullivIDJ, this case was

not removable until the Circuit Court finally granted leave to amend and the filing of a removal

notice before that time would actually have been premature.

B. The Eleventh Amendment Does Not Bar Removal of This Case to Federal Court

Although Counts VI and VII of Plaintiffs Supplemental Complaint allege violations of

federa11aw, Counts I-V allege violations of state law. Plaintiff argues that this Court must

remand this entire case to state court because, under Pennhurst State School & Hospital v.

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Halderman, 465 U.S. 89, 104S.Ct. 900, 79 L.Ed.2d 67 (1984), the Eleventh Amendment tothe.

-7-

Case 1:01-cv-09551 Document 6 Filed 02/20/2002 Page 8 of 16
United States Constitution prohibits this Court from entertaining her state law claims. The Removal Act, however, provides:
Whenever a separate and independent claim or cause of action within the jurisdiction conferred by section 1331 of this title is joined with one or more otherwise non-removable claims or causes of action,the entire case may be. removed and the district court may detqmine all is'sues therein, or, in its ' discretion, may remand all matters in which State law predominates. 28 U.S.C. §1441(b). Also federal district courts "have supplemental jurisdiction over all other claims that are so related to claims in the action within [their] original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.c. §1367(a). Clearly, the joining of state law claims with federal law claims cannot prevent removal of a case from state to federal court. City of Chicago v. International College of Surgeons, 522 U.S. 156, 165, 118 S.Ct. 523, 530, 139 L.Ed.2d 525 (1997). Furthermore, when, as here, a case is brought against a state party defendant, a plaintiff cannot render federal law claim~ unremovable byjoining them with state law claims, even though federal court adjudication of the state law claims might be subject to the Eleventh Amendment. In Wisconsin Departm~nt of Corrections v. Schacht, 524 U.S. 381, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998), the Supreme Court abrogated the holding in Frances 1. v. Wright, 19 F.3d 337, 340 (7th Cir. 1994), that an action containing claims barred by the Eleventh Amendment cannot, in whole or in part, be removed from state court. In Schacht, the Supreme Court unanimously held that the presence in an otherwise removable case of a claim barred by the Eleventh Amendment does not destroy removal jurisdiction that would otherwise exist. 524 U.S. at 386-391; 118 S.Ct. at 2051-2053. Even one claim "arising Wlder" federal law was sufficient to satisfy the requirement that the case be within the original removal jurisdiction of a district court. 524 U.S. at 386; 118 S.Ct. at 2051. The court rejected the argument that any claim
-8-

Case 1:01-cv-09551 Document 6 Filed 02/20/2002 Page 9 of 16
barred by the Eleventh Amendment could destroy removal jurisdiction over all claims. 524 U.S. at 388; 118 S.Ct. at 2052. Rather, where original jurisdiction rests upon the Removal Act's grant of tlarising under" jurisdiction, a federal district court must analyze the applicability of the Eleventh Amendment to each claim, not to the case as a whole, and must assume that the presence of a potential Eleventh Amendment bar with respect to one claim has not eliminated removal jurisdiction over the case. 524 U.S. at 389-90; 118 S.Ct. at 2053. Ifa State validly asserts an Eleventh Amendment bar to a certain claim, a federal court cannot hear that claim, but that circumstance does not destroy removal jurisdiction over the remaining claims in the case and the court can proceed to hear those other claims. 524 U.S. at 392-93; 118 S.Ct. at 2054. See Lapides v. Board of Regents of the University System ofGeorgi~ 251 FJd 1372, 1378 (district court instructed to hear non-barred claims under 42 U.S.C. §1983 and remand claims under Georgia Tort Claims Act to state court); The Detroit Edison Company v. Michigan Department of Environmental Quality, 29 F.Supp.2d 786, 792 (E.D. Mich. 1998) (both federal and state law claims for declaratory and injunctive relief against state department were prop~rly removed from state court); Kagan v. Kopowski, 10 F.Supp.2d 756 (E.D. Ky. 1998) (in action brought against state coUlijudges alleging violations of both federal and state constitutions, court adjudicated federal claims and remanded state claims to state court). C. Defendant's Actions in State Court Do Not Bar Removal of This Case to Federal Court
On December 10, 2001, Defendant filed her Answer to Plaintiffs Supplemental Complaint for Injunctive Relief in state court. See Plaintiffs Attachments, Exhibit E. By filing this Answer, however, Defendant did not waive her right to remove this case to federal court. Since the right to remove a suit from state court to federal court is a statutory right, 28 U.S.C. §1441, a defendant has an absolute right to have a suit removed when the requirements of the
-9-

Case 1 -cv-09551 Document 6 Filed 02/20/2002 Page 10 16
removal statute are met. White v. Wellington, 627 F.2d 582, 586 (2d Cir. 1980). Only a clear and unequivocal waiver will defeat aparty's statutory right to remove a case to federal court. Grubb v. Donegal Mutual Insurance Company, 935 F.2d 57,59 (4th Cir. 1991); Regis Associates v. Rank Hotels (Management) Limited, 894 F.2d 193, 195 (6th Cir. 1990); Beighley v. Federal Deposit Insurance Corporation, 868 F.2d 776, 782 (5th Cir. 1989). Such a waiver should only be found in "extreme situations." Rothnerv. City of Chicago, 879 F.2d 1402, 1416 (7th Cir. 1989). Generally, the right to remove a case to federal court is not lost by any state court action short of proceeding to an adjudication on the merits. Hingst v. Providian National Bank, 124 F.Supp.2d 449,452 (S.D.Tex. 2000); Fain v. Biltmore Securities, Inc., 166 F.R.D. 39,40 (M.D. Ala. 1996).
Specifically, taking part in preliminary action, such as pleading, does not constitute a waiver of removal rights. Baker v. National Boulevard Bank of Chicago, 399 F.Supp. 1021, 1022 (N.D. Ill. 1975). See Hernandez-Lopez v. Commonwealth of Puerto Rico, 30 F.Supp.2d 205,209 (D. Puerto Rico 1998) (defendants did not waive right to remove by submitting answer); Estevez-Gonzalez v. Kraft,Inc., 606 F.Supp. 127, 129 (S.D. Fla. 1985) (defendants did not waive right to remove by filing answer in state court); Carpenter v. Illinois Central Gulf Railroad Company, 524 F.Supp. 249, 251 (M.D. La. 1981) (answer filed in state court did not exhibit intent to submit to state court jurisdiction). Indeed, the Federal Rules of Civil Procedure contemplate filing an answer in state court before removal to federal court. See Fed.R.Civ.Proc. 81 (c) ("Repleading is not necessary unless the court so orders. In a removed action in which the defendant has not answered, the defendant shall answer or present the other defenses or objections available under these rules within 20 days ...")
It does not matter in the present case that Defendant's Answer to Plaintiff's Supplemental Complaint for Injunctive Relief co.o.tains three defenses which Plaintiff characterizes as
-10-

Case 1 -cv-09551 Document 6 Filed 02/20/2002 Page 11 16

"affirmative," i.e., (1) that Counts I-IV were moot, (2) that Count VI was barred by the Eleventh

Amendment ofthe United States Constitution and (3) that Count VI could not be brought against

IDPA's Director. A defendant's mere filing in state court of a pleading raising a defense which

might be conclusive on the merits is insufficient to find a waiver of the right of removal to

federal court; rather there must be further action on defendant's part resulting in a decision on the

merits of the defense to waive the right to remove. Bedell v. H.R.C. Limited, 522 F.Supp. 732,

738 (E.D.
•

Ky.
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1981).
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SeeBrown v. Sass. er.., 128 F.Supp.2d 1345, •• '

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1347 (M.D. Ala.

2000)

(defendants did not waive right to removal by filing answer with affirmative defenses in state

court); The Federal Deposit Insurance Corp. v. Greenhouse Realty Associates, 829 F.Supp. 507,

511 (D. N.H. 1993) (FDIC did not waive right to remove action by asserting defenses in answer

to counterciaiITIs because action was defensive and no decision on merits was actively sought);

Miami Herald Publishing Company, Division of Knight-Ridder Newspapers, Inc. v. Ferre,. 606
.... "-' "
F.Supp. 122, 124 (S.D. Fla. 1984)(defendants did not waive right to remove action by filing

answer and affirmative defense in state court prior to filing timely removal petition). Here

Defendant, though she asserted defenses in her state court answer, neither sought affirmative
.~:
relief thereby nor afterwards took affirmative action resulting in an adjudication on the merits.

Instead, four days after filing her answer in state court, Defendant took timely action to remove

this case to federal court. Defendant had an absolute statutory right to remove this case and no

waiver of this right can be implied from the mere act of filing (l11 answerin state court.

Plaintiff's cases are innaposite to the present case and the dicta for which they are cited

do not substantiate that the filing of an answer in state court waives removal rights. Wisconsin

Department

of

Corrections,."v'..

'S. ch.~.acht,

524

U.S.

3

8

1

,

1

18
:~<

' S.Ct.

2047,

1.41.

L.E.- d.2d

364

(1990),

does not deal with the question of whether a case must be removed prior to filing an answer in

-11-

Case 1 -cv-09551 Document 6 Filed 02/20/2002 Page 12 16

state cOUli, since defendants in that case filed their answer in federal court. 524 U.S. at 384; 118

. ,

~

.

S.Ct. at 2050. Any suggestion in 81. Paul Mercury Indemnity Co. v. Red Cab Co" 303 U.S. 283,

,',

.

"

-'.'

-'

"- , , " . " !

, - ' ,", .,' ,",

.

291,58 S.C1. 586, 591 (1938), that a case must be removed before answering is merely dicta in a

case holding only that plaintiff could not destroy federal court jurisdiction by amending its

complaint after removal to reduc~ the amount in controversy. In Texas Wool & Mohair

Marketing Ass'n v. 8tandardAcc.I~s. 'Co., 175 F.2d'835, 838 (5th Cir. 1949), the court stated

• .'

. , .

. .

. " ,"" '<, _.:-> ":' /:-:~ :~',;.:. ';:':::'.t~~.::,.);:.-;;. '.:):,:<:::!"i;", ;. _.:cC";~~'.'~

.. .....

-'

.

:;'~' :~'>:'::.,>:'~;~'.-:. '/~~:';'.};.~::.':;j}};:_;:::..).:'- t~>J.;~>" <0" <....-.,..

that if the third party defendant in a sllPposed diversity ~ase "had any right of removal, it waived

the same by its answer, but we think that it did not have any such right."

D. Defendant's Opposition to Plaintiffs Federal Claims in State Court Does Not Bar Removal of This Case to Federal Court

Plaintiff contends that this case canot be removed to federal court ,because Defendant advanced

arguments on the merits in state court with regard to her federal claims. Although Defendant

filed a state court motion to dismiss Plaintiffs original Complaint for mootness, this motion was

directed only at state law claims (Counts I-IV) and was filed before Plaintiff moved to

, supplement her Complaint by adding two federal law claims (Counts VI-VII). Acts taken by a

defendant before removability becomes apparent cannot render a case unremovable. California

}~epublican Party v. Mercier, 652 F.Supp. 928,932 n. 3 (C.D. Cal. 1986). See Pease v.

Medtronic, Inc., 6 F.Supp.2d 1354, 1359 (S.D. Fla. 1998) (defendant did not waive right to

remove action by filing motion to dismiss in state court at time when allegations in complaint did

not support removal); Richstone v. Chubb Colonial Life Insurance, 988 F.Supp. 401 403 (S.D.

N.Y. 1997) (defendant did not waive right to remove case to federal court by filing motion to

dismiss where there was no reason to know at time that action was removable). Plaintiff objects

that Defendant continued to seek dismissal of her state law claims after she moved to supplement

-12-

Case 1 -cv-09551 Document 6 Filed 02/20/2002 Page 13 16

her Complaint by adding federal claims, but those federal claims were not actually added to this

case until the Circuit Court granted Plaintiff leave to amend on November 15,2001, the same

.. f "

.•.•. ,:", : ~_ ~-~. -.1' " •

date it denied Defendant's Motion to Dismiss. See Plaintiffs Attachments, Exhibit D.

The only state court merits arguments Defendant <ldvanced in regard t() Plaintiff s federal

claims were made solely in response to Plaintiffs Motion for Leave to File Supplemental

~~12-16. Plaintiffs Motion countered Defendant's earlier motion to vacate the previously

entered TRO and to dismiss this case for mootness. Plaintiff sought to add three new claims, two

of which were federal law claims, and then argued that the temporary restraining order should be

extended on the basis of these new claims. See Plaintiffs Attachments, Exhibit G, ~4. In

response, Defendant briefly argued that a private party could not bring an ADA claim against a

State defendant and that neither the ADA nor the Rehabilitation act required IDPA to provide

Eric with private duty nursing. These arguments were advanced in order to show that Plaintiff

had not demonstrated a sufficient likelihood of success on the merits of her new claims to

warrant extending the TRO.

A preliminary action, such as opposing a preliminary injunction, does not waive removal

.. rights. Baker v. National B.oulevar~ Bank of Chicago, 399 F.Sup'p~ 1021, 102? (r'J.D. IlL 1975). In Rothner v. City of Chicago, 879 F.2d 1402, 1418-19 (7th CiI. 1989), defendant's opposition to

entry of a temporary restraining order in state court did not waive its right to remove the case to

federal court, even though the case was removable on the face of the complaint and defendant

could have removed the case prior to opposing the TRO motion. See also Rose v. Giamatti, 721

.

:

~ . . .. .

:: "

'.

. "-

. .

.', .,~.

'.-

'.

..,

,.

.

F.Supp. 906, 922-23 (S.D. Ohio, 1989) (defendants did not waive right to remove case to federal

court by contesting plaintiffs entitlement to temporary restraining order); Baker v. National

-13-

Case 1 -cv-09551 Document 6 Filed 02/20/2002 Page 14 16

Boulevard Bank of Chicago, 399 F.Supp. at 1022 (party did not waive right to remove action by

filing state court motion to vacate preliminary injunction). The present case case was not yet

removable when Defendant contested Plaintiffs motion to extend the TRO. It was not until

November 15, 2001, when the state court granted plaintiff leave to file her Supplemental

• ,~ "'

---.C. c " ' : ~.' -;;-

"

•• ". :;- ••"

•

.";"

Complaint and simultaneously extended the TRO, that this case first became removable. In

contesting extension ofthe TRO, Defendant could not have waived her removal rights by

opposing Plaintiffs federal. claims in.s,ta,te.court at.a tim~ when this case was not even

removable to federal court.

. Later, whenDefendant fil~d its Answer to Plaintiffs Supplemental Complaint, she raised

the Eleventh Amendment to the United States Constitution as a state court defense barring Count

VI, the federal ADA claim (but not Count VII, the federal Rehabilitation Act claim). See

Plaintiff's Attachments, Exhibit E, p. 1. The Eleventh Amendment was a potentially available

defense to the federal claims brought by Plaintiff in state court. See Alden v. Maine, 527 U.S.

706,754, 119 S.Ct. 2240,2266, 144 L.Ed.2d 636 (1999) (Eleventh Amendment is applicable in

state courts). Plaintiff cites no authority for her contention that raising the Eleventh Amendment

as a defense in a state court answer waives removal rights. Although Wisconsin Department of

Corrections v. Schacht, 524 U.S. 381, 391, 118 S.Ct. 2047, 2053, 141 L.Ed.2d 364 (1998), held

that a State's invocation of the Eleventh Amendment in regard to a particular claim after removal

did not destroy removal jurisdiction over the entire case, this holding does not ipso facto mean

that raising the Eleventh Amendment prior to removal renders a case unremovable. Defendants

in Office of Hawai'ian Affairs v. Department of Education, 951 F.Supp. 1484, 1491 (D. Hawaii,

1996), raised an Eleventh Amendment defense in their state court answer. This, however, did

not prevent the court from holding that it had removal jurisdiction as long as there was at least

-14-

Case 1 -cv-09551 Document 6 Filed 02/20/2002 Page 15 16

one federal claim not barred by the Eleventh Amendment. 951 F.Supp. at 1490. Since, as

previously discussed in Part II-C of this Memorandum, the mere filing in state court of an answer

containing affirmative defenses does not waive statutory removal rights and the Eleventh

Amendment is an available state court defense, Defendant's raising in Circuit Court of a

potential Eleventh Amendment defense to one of Plaintiffs claims cannot bar her from removing

this case to federal court. Moreover, the applicability of the Eleventh Amendment to Plaintiffs

Count VI ADA claim is itself a federal law issue which can and, most appropriately, should be
.. .. '. ." ~ " ': , ~ ~
resolved here in federal court.

III. CONCLUSION

Therefore, for the reasons stated in this Memorandum, Defendant respectfully requests

this Court to deny Plaintiffs Motion for Remand

Respectfully submitted,

James C. O'Connell .David Adler. Christopher S. Gange Assistant Attorneys General
(Of Counsel) 160 North LaSalle street Suite N-l 000 Chicago, Illinois 6060 I (312) 793-2380

James E. Ryan, Attorney General of Illinois
77 By: "'J~f-~

-15-

Case 1 -cv-09551 Document 6 Filed 02/20/2002 Page 16 16

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

FilED

EASTERN DIVISION

2002 FEB 20 PM 2: 57

DONNA RADASZEWSKI, Guardian, on behalf

)

of Eric Radaszewski,

)

GLt:Rr\

)

U.S. DISTRICT COURT

Plaintiff,

)

)

vs.

)

Civil Action

)

No. 01 C 9551

JACKIE GARNER, Director of Illinois

)

Judge Darrah

Department of Public Aid,

)

)

Defendant.

)

NOTICE OF FILING

To; Eliot Abarbanel

Prairie State Legal Services, Inc.

350 S. Schmale Rd., Suite 150

Carol Stream, IL

FAX#: 630-690-2279

•

.

'.

..

I,?:

.

PLEASE TAKE NOTICE that on February 20, 2001, DEFENDANT'S MEMORANDUM IN

OPPOSITION TO PLAINTIFF'S,MOTION FOR REMAND was filed witl1 the Clerk of the U.S. District

Court for the Northern District of Illinois, Eastern Division, at the U.S'-Courthouse, 219 S. Dearborn St.~

Chicago, Illinois.

....,.. ... '. "... . . . .

.

. . . ....

JAMES C. O'CONNELL DAVID ADLER Assistant Attorneys General 160 North LaSalle Street Suite N-IOOO Chicago, IL 60601 (312) 793-2380 .

JAMES E. RYAN Attorney, General of Illinois

CERTIFICATE OF SERVICE
.:-.:' H',' • "
The undersigned, being first duly sworn under oath, deposes that copies of this Notice and attached Memorandum were served upon the above-named at his stated address by depositing same, postage prepaid, in the U.S. mail chute at 160 N. LaSalle St., Chicago, IL on February 20, 2002 and by transmitting same by facsimile to the above FAX )lUmber before~~_

SUBSCRIBED and SWORN to
~fore l:e 1 Feb uary 20, 2000.-:..A_ --t/---==-----4-----=::.NOTAR

"OFFICIAL SEAL"
Ollie G. Banks Notary Public, State ofnlinois
My Commission Expires June 9, 2002

 </s> Case 1:01-cv-09551 Document 54 Filed 02/24/2006 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI,

)

Guardian, on behalf of Eric Radaszewski, )

)

Plaintiff,

)

)

vs.

)

)

BARRY MARAM,

)

Director, Illinois Department of

)

Healthcare and Family Services,

)

)

Defendant.

)

No. 01 C 9551 Judge John W. Darrah Magistrate Judge Ian H. Levin

Plaintiff’s Reply Memorandum Concerning Enforcement of the Settlement Agreement I. Introduction The Court asked the parties to brief the options for an effective enforcement means of a
settlement agreement between the partes. Plaintiff submitted her memorandum in response to the Court’s request. Defendant responds by asking the Court to enforce a draft settlement agreement that defendant inaccurately claims embodies the parties’ agreement and by asking the Court to enter an order and General Release to which plaintiff has never agreed. Although the parties reported to Magistrate Judge Levin on September 23, 2005, that they had agreed on the substantive terms, key provisions, including enforcement, the scope of any release, and confidentiality were not completed. At the September 23, 2005, meeting the main focus of negotiation was on the number of additional hours that plaintiff could obtain on a showing of medical necessity. The parties were able to agree on that point. However, the parties did not detail all the material terms of the proposed agreement, and there was no oral or written record
1

Case 1:01-cv-09551 Document 54 Filed 02/24/2006 Page 2 of 12
made of all the material terms during the conference. As the repeated exchange of drafts show, the parties did not contemplate an agreement other than one in writing and executed by both parties. Subsequent to the September 23rd conference with Magistrate Judge Levin, neither party agreed to the other’s drafts and proposed language on several key matters. Defendant’s drafts included no enforcement mechanism. Additionally, defendant’s drafts included one-sided terms to which plaintiff did not agree, release language that was much broader than language to which plaintiff could agree, and a broad confidentiality provision that plaintiff believed would prevent her from her from hiring nurses. Settlement was not finalized after it became clear that there was no meeting of the minds on these terms of the settlement.
The main glitch, as reported to the Court at the status dates on November 3, 2005 and December 6, 2005, concerns enforcement of the proposed agreement. Plaintiff’s son cannot live without the services he is to receive under the agreement. If plaintiff cannot enforce the agreement to keep those services going, her son risks death. Defendant, by contrast, takes no added risk by agreeing to an effective enforcement mechanism. Defendant says that he cannot agree to continuing jurisdiction in this Court for enforcement purposes.1 Defendant agrees that neither the administrative processes nor the Circuit Court for the 18th Judicial Circuit2 would be a
1 Defendant says he cannot agree to continuing jurisdiction for enforcement purposes, but it is more accurate to say that defendant will not agree to such limited continuing jurisdiction. Defendant does not contend that he lacks the authority to agree to such enforcement. Plaintiff notes that defendant has not been reluctant to ask this Court to enforce his draft of the purported settlement agreement. He is in essence seeking specific performance from this Court, an enforcement remedy he would deny plaintiff.
2 Defendant on page 3 of his memorandum confuses two distinct concepts: (1) the authority of the Circuit Court of DuPage County to enforce any settlement agreement of this federal lawsuit and (2) using the existing state lawsuit which concerns state law issues instead of this suit as the vehicle for settling all of the issues, both state and federal, between the parties.
2

Case 1:01-cv-09551 Document 54 Filed 02/24/2006 Page 3 of 12
proper forum by which to require defendant to cover the services under the agreement that plaintiff’s son needs in order to survive. Rather, he asserts that the Illinois Court of Claims is an adequate forum to provide enforcement by virtue of a monetary award for any missed payments to nurses if the defendant does not live up to his commitment to provide the otherwise agreed to level of medical services. As discussed more fully below, an award of money for missed reimbursements is not an adequate remedy. Plaintiff cannot meet her fiduciary obligations as guardian to her very disabled son if she agrees to settle on terms that are not enforceable.
II. Plaintiff disagrees with defendant’s version of the facts Plaintiff disagrees with defendant’s version of the facts regarding the settlement process. A main sticking point prior to the settlement conference with Magistrate Judge Levin on September 23, 2005 was a clause limiting the number of additional hours of nursing services plaintiff could seek for her son in the event his health or the health of herself and her husband reduced their ability to care for him. Agreement regarding enforcement and confidentiality also continued to be sticking points, but it was plaintiff’s understanding that defendant agreed to enforcement in Illinois courts. When the parties agreed on the substantive provisions about the services, it appeared to plaintiff that the parties could work together to come to agreement on the remaining terms. The parties reported to Magistrate Judge Levin on September 23, 2005, that they had agreed in principle to resolve the case, but had to work out the details and language of specific terms, which would be recorded in a written settlement agreement. These terms included the language of any release, enforcement, and confidentiality. Judge Levin suggested the parties
Defendant agrees with plaintiff that the State circuit court does not have authority under Illinois law to enforce an agreement in this federal lawsuit. Separately, defendant has rejected using the state lawsuit as the basis for a settlement of both cases.
3

Case 1:01-cv-09551 Document 54 Filed 02/24/2006 Page 4 of 12
seek a postponement of the status hearing before Judge Darrah so as to allow sufficient time to finalize the terms of the agreement. The parties contemplated that their eventual agreement would be reduced to a written agreement to be executed by the parties and their counsel.
As the parties’ subsequent correspondence from October 4, 18 and 28th makes clear, negotiation over many of the terms of the agreement, including the language of the release, enforcement, and confidentiality continued.3 The settlement, however, stalemated over the actual language, and that stalemate revealed that there had not been an actual meeting of the minds on enforcement, the release, or confidentiality.
Plaintiff believed that the defendant had agreed to enforcement in State court, including the Circuit Court of Illinois for the Eighteenth Judicial Circuit. Defendant’s October 4, 2005, draft submitted to plaintiff shortly after the September 23 settlement conference included no enforcement scheme, and included a general release that would prevent plaintiff from seeking to enforce the agreement in State court. Additionally, defendant continued to include a statement that both parties agreed that there was no waiver of sovereign immunity, and the language included no exception to allow plaintiff to enforce the agreement. This clause therefore also presented a problem for future enforcement purposes.
On October 18, 2005, plaintiff responded to many aspects of defendant’s October 4, 2005, draft, including what she thought were clarifications on enforcement, the release and the sovereign immunity clause. Plaintiff proposed language to spell out enforcement and clarify in
3 Since confidentiality is an aspect of settlement that is important to defendant, plaintiff has honored that concern by filing a motion with this Court pursuant to Local Rules 5.8 and 26.2(b) to submit the relevant correspondence and proposed agreements between the parties to this Court as restricted documents. Plaintiff will only generally make reference where appropriate to the proposed terms in this Memorandum without disclosing specific details.
4

Case 1:01-cv-09551 Document 54 Filed 02/24/2006 Page 5 of 12
the release and sovereign immunity clauses of the agreement that enforcement could be had in Circuit Court of Illinois for the Eighteenth Judicial Circuit. On October 28, 2005, Defendant rejected that language, revealing that defendant did not actually agree to such enforcement. Defendant took the position that it could not agree to enforcement of the agreement in the Circuit Court of Illinois, and refused to include any language about how the agreement would be enforced in its proposed settlement agreement drafts. Faced with this position, and the case law defendant cited, plaintiff had to review the enforcement options, and concluded that only continuing jurisdiction in this Court could afford plaintiff enforcement of the agreement.
Defendant also responded to plaintiff’s October 18th proposed language by taking the position that defendant would not change his proposed language related to the release, sovereign immunity and confidentiality. Defendant’s October 28th letter stated that certain language was mandated by the Attorney General of Illinois and could not be altered. Defendant had never previously informed plaintiff that the language of these terms absolutely could not be negotiated. Plaintiff at no time agreed to the purported mandatory language and never indicated to defendant on September 23, 2005 or otherwise that she would agree to settlement under the one-sided, takeit-or-leave- it terms.4 While she was and is very willing to try to meet defendant’s concerns, she cannot agree to boilerplate language that really applies to a case where the State is paying a sum certain to a party and seeks a general release in exchange. That is not the case here, where the settlement calls for the State defendant to perform month after month for the indefinite future.
4 Plaintiff has never before seen Exhibit A “Settlement Agreement and General Release,” appended to defendant’s brief, but it clearly relates to a standard settlement for a sum certain in exchange for a general release. By its terms it is not applicable where the state’s performance is all prospective and ongoing, like the settlement contemplated in this case.
5

Case 1:01-cv-09551 Document 54 Filed 02/24/2006 Page 6 of 12
What is key to plaintiff is that she can enforce the agreement so that her son can continue to receive services and that no language of the agreement in the release clause or otherwise bars such enforcement. With respect to confidentiality, she needs to be sure that no confidentiality agreement prevents her from discussing with other persons the services her son is to receive, since she must have the flexibility to discuss the nature and amount of services with service providers, friends and family to make arrangements to staff the services. Defendant’s positions in the drafting of the final language made clear that there was no meeting of the minds on the enforcement of the agreement, the release or on confidentiality.
III. Illinois Law Does Not Support Enforcement of an Alleged Oral Settlement Agreement Where There Has Not Been a Meeting of the Minds.
Federal courts have jurisdiction to enforce settlement agreements; state law applies to determine whether a settlement agreement is enforceable. Lynch v. SamataMason, Inc., 279 F.3d 487, 490 (7th Cir. 2002). Under Illinois law, an oral settlement agreement is valid only in so far as there is an offer, acceptance, and a meeting of the minds on all material terms. Wilson, v. Wilson, 46 F.3d 660, 666 (7th Cir. 1998), citing, Brewer v. National R.R. Corp., 256 Ill.App.3d 1083 (1st Dist. 1993) reversed on other grounds, 165 Ill.2d 100 (1995), Zagone v. Bosques, 2004 WL 170329 (N.D. Ill. 2004). As described above, the parties here had no meeting of the minds.
Morever, where, as here, the parties always contemplated that any agreement would be reduced to writing “and its formal execution is objectively intended as a condition precedent to its completion, there can be no contract until then, even if the actual terms have been agreed on.” Trendmasters v. Walgreen Co., 1996 WL 422273 (N.D. Ill 1996), citing, Estate of Glassman, 257 Ill.App.3d 102,108 (1st Dist. 1993). The Trendmasters court listed several objective indicia
6

Case 1:01-cv-09551 Document 54 Filed 02/24/2006 Page 7 of 12
reflecting on the parties’ intent, including “sudden contentiousness” and the parties’ difficulties in arriving at language with respect to the materials terms as negating that there was any meeting of the minds. The parties in Trendmasters agreed in principle on mutual releases, but had not agreed on the exact terms of the releases or the legal consequences of such releases. Relying on U.S. v. Orr Construction Co., 560 F.2d 765, 770 (7th Cir. 1977), the court found both that there had been no meeting of the minds and that the agreement was too indefinite to enforce. This case is similar–the parties did not reach agreement on a release, enforcement or confidentiality prior to or after September 23, 2005. Plaintiff remains hopeful, however, that given the parties’ agreement on the substantive terms, these terms too can be resolved in a way that is mutually agreeable to the parties.
IV. The Court of Claims is Not a Viable Enforcement Mechanism Apart from his contentions regarding the agreement, defendant does not dispute much of plaintiff’s opening brief with respect to the enforcement options. Defendant apparently agrees with Ms. Radaszewski’s argument that the Illinois Court of Claims will not grant injunctive relief or require specific performance of a contractual provision. Instead, defendant argues on pages 8 and 9 of his Memorandum that because provision of medical services to Eric Radaszewski is effected by the act of defendant making reimbursements to medical providers and because reimbursements are necessarily monetary, that any subsequent breach of the agreement by the defendant in making such reimbursements is remedied by an award of damages, an adequate remedy at law which the Court of Claims will consider. If defendant breaches the agreement and Medicaid does not reimburse the medical service providers, plaintiff has no way to pay for the services. Eric will stop getting the services he needs to survive. A claim for damages is not a
7

Case 1:01-cv-09551 Document 54 Filed 02/24/2006 Page 8 of 12
meaningful enforcement scheme in this instance. Illinois law recognizes that a claim for damages in such circumstances is an inadequate remedy.
Illinois courts have consistently recognized that the mere presence of monetary amounts in an agreement does not automatically result in the finding that an adequate remedy exists as defendant suggests. In Bio-Medical Laboratories, Inc. v. Trainor, 68 Ill. 2d 540, 370 N.E.2d 223 (1977), the Illinois Supreme Court considered the adequacy of a monetary award as a remedy. There, the Illinois Department of Public Aid had suspended the plaintiff’s participation as a provider in the Medicaid program and its right to receive reimbursement from the State for medical services provided. The court concluded that under the circumstances of that case, an award of damages would not provide an adequate remedy. It explained that for a remedy at law to be adequate, it “must be clear, complete, and as practical and efficient to the ends of justice and its prompt administration as the equitable remedy.” 370 N.E.2d at 227. The court further explained that since suspension from the Medicaid program for any length of time would cause damage of an uncertain magnitude, damages would not afford an adequate remedy. Id.
In an earlier decision, the Illinois Supreme Court had stated that if amounts recoverable at law “would be so small and disproportionate to the vexation and expense of the actions” such an award would not constitute an adequate remedy at law. Abel v. Flesher, 296 Ill. 604, 609, 130 N.E. 353 (1921). See, Chicago Title & Trust Co. v. Weiss, 605 N.E.2d 1092, 1097 (1992) (citing the decision in Abel v. Flesher). In Lucas v. Peters, 318 Ill. App.3d 1, 16, 313 N.E.2d 313, 325 (1st Dist. 2000), the court found a monetary award to be inadequate when a violation by its nature is continuous and that only nominal damages could be awarded. The court concluded that such circumstances provide the “best reason why a court of equity should become involved.” Id.
8

Case 1:01-cv-09551 Document 54 Filed 02/24/2006 Page 9 of 12
Contrary to defendant’s characterization of the settlement of this case as an agreement to simply pay an amount certain for services, the purpose of any settlement for the violations of the Americans with Disabilities Act and the Rehabilitation Act which Ms. Radaszewski has alleged would be a commitment on the part of the defendant to provide a certain agreed-upon level of services to Eric that Ms. Radaszewski believes he would need to survive. The proposed agreement does not specify dollar amounts but rather hours of service, as acknowledged by defendant on page 5 of his brief. Defendant would have Ms. Radaszewski bringing an action in the Illinois Court of Claims each month to seek recovery for any missed reimbursement. Defendant doesn’t contest that Ms. Radaszewski could not bring an action generally to enforce the payment for services prospectively under Court of Claims decisions as argued by plaintiff in her Memorandum Concerning Enforcement of the Settlement Agreement.
Under Illinois case law, as discussed above, this continuing scenario of bringing monthly lawsuits would not provide Ms. Radaszewski or Eric a remedy that is clear, complete, and as practical and efficient to the ends of justice and its prompt administration as the equitable remedy as required by the Illinois Supreme Court in Bio-Medical Laoratories. Rather it would award only the amount of one monthly reimbursement - when the actual injury to Eric from the failure to pay for the necessary medical services would be significantly greater and of the “uncertain magnitude” that the Illinois Supreme Court found to be present in that case. See also, Lucas v. Peters, 741 N.E. 2d at 325 (Inability to determine damages is basis for finding that damages are inadequate remedy). Defendant’s proposed remedy would offer Eric no relief for missed future payments and the accompanying loss of life-sustaining medical services he requires.
Defendant cites two Illinois Court of Claims cases, A-Reliable Auto Parts & Wreckers,
9

Case 1:01-cv-09551 Document 54 Filed 02/24/2006 Page 10 of 12
Inc. v. State of Illinois, 2001 W.L. 34677738 (Ill. Ct. Cl. 2001) and Ace Coffee Bar, Inc. v. University of Illinois, 1999 W.L. 33246477 (Ill. Ct. Cl. 1999) in support of its argument that Ms. Radaszewski would have an adequate remedy from a suit for past due reimbursements. Neither of these cases dealt with the issue of whether a monetary award would provide an adequate remedy. A-Reliable Auto Parts & Wreckers was a replevin claim against the Illinois Secretary of State for the return of the claimant’s confiscated motor vehicle. There the Court of Claims concluded that it did not have authority to issue orders of replevin, similar to its findings with respect to its authority to issue injunctions or order specific performance. In Ace Coffee Bar, a suit brought by an unsuccessful bidder to provide vending food services for declaratory and injunctive relief to undo the bidding process, the Court of Claims reiterated its prior decisions that it did not have authority to provide injunctive relief, but found that it could issue declaratory relief in certain circumstances. A monetary award was not an issue in the case.
In sum, an award of damages for a missed reimbursement would fall far short of providing Ms. Radaszewski and Eric the enforcement relief Eric needs. Eric could die while Ms. Radaszewski was pursuing her missed reimbursement claim in the Illinois Court of Claims. The Illinois Court of Claims is not a viable source of enforcement for a future breach of any settlement agreement.
Plaintiff reiterates what she stated in her opening brief concerning this dispute. The parties agree on the substantive aspects of the settlement - the level of medical services that Eric would receive. It would seem a shame that defendant’s “office policy” on inapplicable boiler plate language would frustrate this agreement. Nevertheless, Ms. Radaszewski cannot and has never agreed to a settlement that would provide her with no meaningful method of enforcing the
10

Case 1:01-cv-09551 Document 54 Filed 02/24/2006 Page 11 of 12
agreed-to obligations of the defendant, a broad release clause that could be construed to be inconsistent with her right to enforce, and a confidentiality clause that could be interpreted to prevent Ms. Radaszewski from discussing the amount of services Eric receives when she seeks to make care arrangements for him.
Respectfully submitted,
________________________________ s/Sarah Megan Sarah Megan Bar Number 6182931 Attorney for Plaintiff 201 Houston St., Suite 200 Batavia, IL 60510 Telephone: (630) 232-9420 Fax: (630) 232-9402 E-mail: smegan@pslegal.org
PRAIRIE STATE LEGAL SERVICES, INC. Eliot Abarbanel Bernard H. Shapiro Sarah Megan 350 South Schmale Road Suite 150 Carol Stream, IL 60188 630-690-2130
11

Case 1:01-cv-09551 Document 54 Filed 02/24/2006 Page 12 of 12
Certificate of Service I hereby certify that on February 24, 2006, I presented the foregoing Plaintiff’s Reply Memorandum Concerning Enforcement of the Settlement Agreement with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:
Karen Elaine Konieczny aidd1534@idpa.state.il.us John E. Huston aidd1535@idpa.state.il.us Christopher Samuel Gange aidd1546@idpa.state.il.us
Respectfully submitted, s/Sarah Megan Sarah Megan Bar Number 6182931 Attorney for Plaintiff 201 Houston St., Suite 200 Batavia, IL 60510 Telephone: (630) 232-9420 Fax: (630) 232-9402 E-mail: smegan@pslegal.org
12

 </s> Case 1:01-cv-09551 Document 7 Filed 03/07/2002 Page 1 of 9

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI,

)

Guardian, on behalf of Eric Radaszewski, )

)

Plaintiff,

)

)

vs.

)

)

JACKIE GARNER,

)

Director, Illinois Department of

)

Public Aid,

)

)

Defendant.

)

No. 01 C 9551 Judge John W. Darrah
FilE E>
MAR - 7 2002
w: MICHA!l1. I)QUBINS
CLI;RK, U.S. DISTRICT COURT

PLAINTIFF'S REPLY BRIEF - MOTION FOR REMAND

I. Introduction: The futility of removal If Eric Radaszewski' s nursing services are cut to the level defendant seeks to impose,
Eric risks serious injury and even death. (Judge Byrne's December 19,2000, Memorandum Opinion and Order, p. 5). Defendant meets the gravity of the case with procedural maneuvering. She agrees that the Eleventh Amendment bars federal courts from deciding the five claims stated in the Supplemental Complaint which are based on violations of state law. Of plaintiffs two federal claims, defendant's Answer has asserted an Eleventh Amendment defense to plaintiffs claim under the Americans with Disabilities Act. Although defendant does not state here her position on the Eleventh Amendment with respect to plaintiffs Rehabilitation Act claim, in the state court briefmg over the extension of the temporary restraining order she also argued that the

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Eleventh Amendment barred this remaining federal claim. In short, defendant's purpose in removing this case to federal court appears to be to tum around and argue that the court cannot hear the claims because they are barred by the Eleventh Amendment. Since under 28 U.S.C. §1447(c), the outcome in that event would be remand of the claims to state court, removal appears an exercise in futility, exploiting this Court's and the parties' resources. Remand is appropriate because defendant has waived her right to removal and raised the Eleventh Amendment bar prior to the removal.
2. 30 day removal period began when motion for TRO filed in state court Defendant states in her memorandum that the Seventh Circuit's case of Sullivan v.
Conway, 157 F.3d 1092 (7th Cir. 1998), "definitively resolved any uncertainty in this jurisdiction" over the question of when the 30 day period begins to run for removal when a case which was not initially removable subsequently becomes removable. While superficially Sullivan v. Conway may be similar to the present case, it by no means provides a definitive resolution of the present case. The question presented in Sullivan was simply whether the 30 day removal period began to run when the plaintiff filed a motion to amend his complaint or when the motion to amend was granted. The appellate court determined the 30 day period began when the state court granted the motion to amend. Sullivan, however, did not involve a situation comparable to the present case where in addition to filing a motion to amend her complaint, the plaintiff filed a motion for extension of TRO in which the merits of her two federal law claims were litigated by the parties. Sullivan, therefore, does not provide guidance for resolution of the present case since Sullivan did not involve the question oflitigation of a TRO.
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Rather, Butts v. Hansen, 650 F.Supp. 996 (D.Minn. 1987), cited in plaintiff's opening brief, provides a much closer factual parallel to the present case, and its reasoning and outcome are, therefore, of much greater relevance to this case than is Sullivan. In Butts the plaintiff filed a motion for TRO in which federal claims were alleged. The court decided that the 30 day removal period began upon the plaintiffs' filing of the motion for TRO, because that is when their claim for relief under federal law was stated and thereby gave defendants notice of removability. 650 F.Supp. 996,998.
This reasoning was followed recently by an Indiana federal court in the case of Bezy v. Floyd County Plan Commission, 199 F.R.D. 308 (S.D. Ind., March 8, 2001). In Bezy the court approved of the reasoning in Butts v. Hansen and stated that the filing of a motion for TRO asserting federal claims starts the 30 day removal period because it permits the defendants the opportunity to present or defend those federal rights. The Bezy court pointed out that the case before it, which presented merely the question of whether a motion for amended complaint started the 30 day clock, was quite different from Butts where the plaintiff had filed a motion for .TRO asserting federal claims. Bezy held that the 30 day clock does not begin upon the mere filing of a motion for amended complaint because litigation based on the amended complaint has not begun until the amended complaint is actually filed. However, Bezy states that the filing of a motion for TRO does present the defendant with the opportunity to present or defend federal claims and therefore begins the removal period. This is precisely the factual situation before this Court. Not only did the plaintiff's filing of her motion for extension ofTRO present the defendant with the opportunity to defend against federal claims, but the parties argued the merits of the federal claims before the state court and the state court judge made a decision on
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plaintiff's motion for TRO based on both state and federal claims prior to defendant's removal to federal court. It should be noted that the Bezy case was decided subsequent to Sullivan v. Conway.
3. Defendant waived the right to remove by answering in state court Defendant characterizes the Supreme Court's statement in Wisconsin Department of
Correction v. Schacht, 524 U.S. 381, 391,118 S.Ct. 2047 (1998), quoting from previous opinion in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 58 S.Ct. 586 (1938), that a defendant must file a removal petition before the time to file an answer in state court or forever lose the right to remove as just dictum, but lower courts are not free to ignore principles oflaw articulated by the Supreme Court. Moreover, as described in plaintiffs opening memorandum and in further detail below, this point was a key part of the Court's rationale in Schacht, which defendant otherwise relies on to support her argument for removal jurisdiction.
Defendant next asserts that the mere filing of affirmative defenses without more is insufficient to constitute waiver. Defendant again cites several out-of-jurisdiction district court cases in support of this assertion. (See defendant's memo, p. 11.) However, these are merely selective cases in an area in which there is considerable difference of opinion in the published cases. The plaintiff has already cited several cases which support her view. (See pp. 9-11 of her opening brief.) What makes the present case different from the cases cited by defendant is that defendant did not merely file an answer and then remove to federal court; she actively litigated the merits of the case in her opposition to plaintiffs motion to extend TRO as well. Indeed, it was only after defendant lost on the motion for extension of TRO that she sought removal to
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Case 1:01-cv-09551 Document 7 Filed 03/07/2002 Page 5 of 9
federal court. The motion for extension of TRO was fully briefed by the parties and defendant argued against the federal claims on the merits. The state court judge made a ruling in which he indicated there was a probability of success on the merits of plaintiffs state and federal claims.
4. Defendant waived right to remove by vigorously opposing motion for injunctive relief Defendant at page 13 of her brief cites Baker v. National Boulevard Bank ofChicago,
399 F.Supp. 1021 (N.D.III. 1975) and Rothner v. City ofChicago, 879 F.2d 1402 (7th Cir. 1989) for the proposition that opposition to a motion for TRO in state court is insufficient to constitute waiver. However, both these cases involved perfunctory and formal opposition to preliminary injunctive motions and thus did not really involve litigation on the merits. For example, in Baker the court pointed out that the defendant had merely filed a motion to vacate the preliminary injunction and upon motion of the defendant it was continued until resolution of the removal question in federal court. Thus, defendant's "actions only amount to its protecting its interest in the state court action. They are not sufficient participation to waive removal." 399 F. Supp. at 1022. Similarly, in Rothner v. City ofChicago the plaintiff filed an emergency motion for TRO with less than two hours' notice to defendant before defendant had answered the complaint. The state court judge allowed no oral argument and took no evidence before he issued the TRO. Shortly thereafter the defendant removed to federal court. Not surprisingly the appellate court found that no waiver had occurred.
In marked contrast to these two cases, the defendant in the present case answered the complaint, offered several affirmative defenses, and mounted a vigorous defense of the motion for extension ofTRO including participation in a full briefing schedule and oral argument in
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which she argued the merits of plaintiffs federal claims. This is a far greater level of participation in the state court litigation than occurred in either Baker or Rothner. Similar levels of participation in state court litigation have been found to constitute waiver ofthe right of removal. See, especially, Fate v. Buckeye State Mutual Insurance Co., 174 F.Supp.2d 876 (N.D.Ind. 2001), which found waiver where the defendant had sought a stay or dismissal of Count I of the complaint and a stay of discovery of Count II of the complaint, and had conducted some discovery. 1
5. The Effect ofthe Schacht decision Defendant agrees that the present case is different from Schacht but suggests that any
differences do not matter to removal jurisdiction. As plaintiff discussed in her opening memorandum at pages 11-12, the differences are central to this case, since the rationale in Schacht was based on the Court's conclusion that the Eleventh Amendment defense was merely a "potential" defense which the state defendant might not raise and the federal court need not raise sua sponte. As part of its rationale the Court stated that defendant must remove prior to filing her answer in state court or forever waive the right to do so. 524 U.S. at 390. Implicit in the Court's rationale is that if the Eleventh Amendment is raised prior to removal, then there is no jurisdiction and the plaintiff avoids being ensnared in litigating in federal court the issue of
1 The court in Fate explained why the Rothner analysis regarding the doctrine of waiver of removal no longer applied. It states that Rothner construed the removal statutes prior to their amendment in 1988, and thus its reasoning no longer applied to the post-1988 removal statutes. Whereas under the old version of the statute, the Seventh Circuit found waiver only in rare circumstances, the change in the language ofthe statutes removed that obstacle to waiver, and thus waiver ofthe right to removal remains a viable doctrine. See Fate v. Buckeye State Mutual Insurance Co., 174 F.Supp.2d at 880-81.
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Case 1:01-cv-09551 Document 7 Filed 03/07/2002 Page 7 of 9
whether that court has jurisdiction, when the plaintiff had not sought out the federal forum in the first instance.
At the time of the removal action here, Eleventh Amendment issues were not just "potential," they were already asserted in state court in defendant's Answer and in her briefing on the extension of the temporary restraining order. Defendant clearly has not waived Eleventh Amendment immunity and, under the Seventh Circuit's precedents, would have no authority to do so. Defendant does not contend she has statutory authority to consent to suit, and she is silent on the principle stated by the Seventh Circuit in Power v. Summers, that state officials cannot remove to federal court and thus consent to suit absent such a statutory waiver of sovereign immunity. Power v. Summers, 226 F.3d 815 at 818 (2000).
6. The Eleventh Amendment and State Court Jurisdiction Citing Alden v. Maine, 527 U.S. 706 (1999), defendant says her Eleventh Amendment
defense to plaintiffs claim under Title II of the ADA should be heard in federal court. (Defendant's memorandum, p. 14). In Erickson v. Board o/Governors, the Seventh Circuit held that private litigants may assert in Illinois' courts their ADA claims that would be barred in federal court, consistent with Alden, because Illinois allows similar claims through its Human Rights Act. The court reasoned that "having opened its courts to claims based on state law, including its own prohibition of disability discrimination by units of state government ... Illinois may not exclude claims based on federal law." 207 F.3d 945, 952 (7th Cir. 2000), citing, inter alia, Howlett v. Rose, 496 U.S. 356, 367-75(1990). Although Erickson involved Title I of the ADA and the employment relationship, the Illinois Human Rights Act also prohibits
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Case 1:01-cv-09551 Document 7 Filed 03/07/2002 Page 8 of 9
discrimination in the provision of services by public officials, 775 ILCS 5/1-1 02(A), (G), 775 ILCS 5/5-102(C), similar to plaintiffs claim under Title II of the ADA here. In that regard, see Walker v. Snyder, 213 F.3d 344, 347 (2000), where the Seventh Circuit affirmed its statement from Erickson that the plaintiff should pursue his Title II ADA claim in state court.
7. Plaintiff s Claim Under the Rehabilitation Act Defendant does not clearly state whether she continues to pursue the Eleventh
Amendment defense with respect to plaintiffs claim under the Rehabilitation Act that she originally stated in the preliminary relief briefing in state court. To the extent that she intends to do so, the foregoing analysis regarding Title II of the ADA is equally applicable. Finally, the waiver arguments presented above in sections 2 through 4 apply equally to the Rehabilitation Act claim and the ADA claim.
Conclusion For the foregoing reasons, and for the reasons set out in her opening memorandum, plaintiff requests that this Court grant her Motion for Remand.
Respectfully submitted,
Eliot Abarbanel One of plaintiff s attorneys
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Case 1:01-cv-09551 Document 7 Filed 03/07/2002 Page 9 of 9

PRAIRIE STATE LEGAL SERVICES, INC. Eliot Abarbanel Sarah Megan Bernard H. Shapiro 350 S. Schmale Road Suite 150 Carol Stream, IL 60188 630-690-2130

Certificate of Service
The undersigned certifies that on March 6, 2002, she served a copy of the attached Plaintiff's Reply Brief -- Motion for Remand, upon:
James O'Connell David Adler Christopher Gange Assistant Attorneys General 160 N. LaSalle Street Suite N-IOOO Chicago, IL 6060 I FAX No. 312-793-3195
by depositing a copy thereof, enclosed in an envelope, in the United States Mail at Carol Stream, Illinois, with proper postage prepaid as addressed above, and by transmitting a copy thereof by facsimile to the facsimile number noted under the respective names above.

SUBSCRIBED AND SWORN TO before me this 6th day of March, 2002.
~e.~
NOTARY PUBLIC

OFFICIAL SEAL
SUSAN E BEARD
NOTAIIY PUIIUC. STATE Of ~ MY COMMISSION e_8:0I1011101
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 </s> Case: 1:01-cv-09551 Document #: 175 Filed: 05/09/08 Page 1 of 2 PageID #:2083

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKl,

)

Guardian, on behalf of Eric Radaszewski, )

)

Plaintiff

)

)

vs.

)

)

BARRY MARAM,

)

Director, Illinois Department of

)

Healthcare and Family Services,

)

)

Defendant,

)

No. 01 C 9551 Judge John W. Darrah

ORDER For the reasons stated in the Court's Opinion and Order entered March 26, 2008, setting out the Court's findings of fact and conclusions of law: IT IS HEREBY ORDERED: (l) A Permanent Injunction is entered enjoining the defendant from reducing coverage for Eric Radaszewski to less than sixteen hours per day of skilled nursing services by a registered nurse (R.N.) seven days per week, at his parents' home, and an additional 336 hours of such skilled nursing hours per year as respite for his parents. These nursing hours will be covered at the rate utilized by the defendant for in-home registered nursing (R.N.) services in DuPage County, Illinois, at the time the service is provided. (2) Plaintiff is awarded her costs of this litigation and litigation expenses, to be determined at a later date pursuant to Local Rules 54.1 and 54.3.

Ca• se: 1:01-cv-09551 Document #: 175 Filed: 05/09/08 Page 2 of 2 PageID #:2084
(3) This Court shall retain jurisdiction of this matter for purposes of enforcement of this Order.

JOHN.~.

H

Unit~States District Court Judge

 </s> Case 1:01~cV-.:09~51· Document 10 Filed OS/20/2002 Page 3 of 17

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UNITED STATES DISTRICT COURT

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DONNA lY\QAS~$..~Jg, Guardian, on behalf )

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Civil Action No. 01 C 9551

JACKIE GARNER,.Db:.e.ctor of Illinois

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Judge Darrah

Department of Public. Aid,

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, ..DEFENDANT'S MEMORANDUM IN SUPPORT OF HER , --~,~;s~MQtrON FOR JUDGMENT ON THE PLEADINGS
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MAY 2 () 2C02

INTRODUCTION

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Plaintiffis~ili~~dian and mother of Eric Radaszewski, who suffers from brain cancer
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and has lost many:me~tarimd physical functions. Defendant is the Director of the Illinois

Aid Department of Public ("IDPAIt). Until August 2000, when he became 21 years old, Eric, ("';:1,':'
who lives with his "pa.retn-:ts, received 16 daily hours ofin-home nursing funded by Illinois'
Medicaid program;Jii~~bruary, 2000, IDPA determined that, after Eric turned 21, he would - --1-

only be entitled to an:exceptional care rate of $4,593 per month under its Medicaid Home

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Services Waiver~.!~gr~.: .Plaintiff alleges that this rate, which was capped at the alternate cost

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of care for Eric .at.:a.skiiled nursing facility, was only sufficient to pay for approximately five

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daily hours of i~-h9riie~&sing.

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On DeCe~J?_~r)~.~OOO, Plaintiff brought a state court action for injunctive relief against

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Defendant's pred.ec,:"~.ss.!Q~....in.office challenging IDPA's reduction of the amount ofin-home

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private duty n.u..rS··i·n·:g::'-p·.r·o·rV:,·;ded to her son. Plaintiff's four-count Complaint charged that IDPA's

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limitation of priva~ ?uty:nursing ." .. ·~·:"o,,"'·"""·Qlr~';I'· services for adult Medicaid recipients constituted an invalid

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rule not adopted pu,r.&U~~,to notice and comment rulemaking procedures specified in Illinois'

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AdministrativePiocedUr.e.Act ("APA"), 5 ILCS 100/1-1 et seq. (Count I); IDPA violated Illinois' _. . t.: \. .j'"

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Medicaid Plan by failing to provide Eric with all the private duty nursing described in the Plan

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(Count II); IDPA'~re~alto cover all the private duty nursing sought for Eric violated 89 Illinois

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Administrative Code ("ILAC") §140.435(b)(2) (Count III); and IDPA breached a contract by not

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providing Eric all the private duty nursing included in Ilinois' Medicaid Plan (Count IV). On
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December 19, 200Q,:thr..~te court entered a Temporary Restraining Order requiring IDPA to

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maintain the .1.§ dai!y hRur~~ of private duty nursing previo~sly received by Eric.
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On February 2, :2Q01, the Health Care Financing Administration ("HCFA") of the United
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States Department.9f.l:J;~,~~h and Human Services, approved an IDPA State Medicaid Plan •.... j' . , ... I.....' . .......,...~ . .. ~ ..... J.:O...... ,-

Amendment,

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to

January

1,

2001,

which

removed

coverage

of private

duty

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nursing from the Plari by deleting all provisions regarding this service. See attached Exhibit A.
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On September 1, 7.091,;I1)PA amended 89 ILAC §§140.435 and 140.436 to strike all text relating

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to Medicaid coverage for private duty nursing services. 25 Ill. Reg. 11880 (September 14,2001). ..; :'. . I.'
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See attached Exhi9JtB'1> .

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On Novem.' P.:e.f...· ~r5:·, 2001, the state court granted Plaintiff leave to file a Supplemental

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Complaint instanter. Although she rea1leged the four counts previously brought in her initial ':'. i' '. . f", . . -.,~~!.~~.-:-.
Complaint and.brought a'new count alleging that IDPA violated the APA in amending 89 ILAC
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§§140.435 and 140".436 (Count V), Plaintiff added two new counts alleging federal law .

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violations. Spec.ifi::c,,a:'lly/-,.' ~laintiffcomplained that IDPA's refusal to provide Eric the amount of

nursing~tght in-home

'. .' . !... violated Title II of the Americans with Disabilities Act ("ADA"), 42

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.' . r·· . ·: U.S.C. §12132, and.on~. of its implementing regulations, 28 C.F.R. §35.130 (Count VI) and that

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Case 1:Ot"cv:-095,51, Document 10 Filed 05/20/2002 Page 5 of 17

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this refusal also~Ykl~t4~ection 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, and one

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of ItS implemen~g.r~$~ations, 28 C.F.R. §41.51(d} (Count VII).

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Because.flaintiff.amended her Complaint to add new claims arising under federal law, . '; . ! . . .. ·:.::::>,L.>:
Defendant removed.~s case to federal court on December 14,2001. On April 30,2002, this

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Court remanded:pjamtPrs state law claims (Counts I-V) to state court, while retaining

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jurisdiction ov"e~ r.'~- ou~n~ f~':."YI and VII, Plaintiffs federal law claims. Pursuant to Federal Rule of

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Civil Procedure 12(c}, D~fendant now moves for entry ofjudgment on the pleadings on Counts

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VI and VII of Plaintiffs Supplemental Complaint for Injunctive Relief.

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ARGUMENT

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Under theJa.cts..s.etJorth in her Complaint, Plaintiff has failed to state a legal claim for ... .1" _ ."~."::.,,.L;,
which relief may ~e~ted. A Rule 12(c) motion for judgment on the pleadings can be used to
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challenge the. legal:s·::Q',-:fril'c,'lency of a complaint and, when so used, is evaluated under the same

standard as a Rule l2(1?)(6) motion to dismiss for failure to state a claim upon which relief may

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be granted.

United 'i

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Inc.

v.

ALG.

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912

F.Supp.

353,

361

(N.D. Ill.

1995),

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reconsidered on o~herffiundS 916 F.Supp. 793 (N.D. Ill. 1996). Thus, entry ofjudgment on the

pleadings is appropriat~...when, taking all the factual allegations in plaintiffs complaint as true,
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defendant is clearly entitled to judgment as a matter oflaw. Flora v. Home Federal Savings and

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Loan Association,~§.85.;F...7d. 209, 211 (JIh Cir. 1982). Although the district court must view the

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facts in the lightrri.q$jJ~y'Qrable to.the nonmoving party, it is not bound by that party's legal

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characterization..p~ttP..~.t.apts.· National Fidelity Life Insurance Co. v. Karagani~ 811 F.2d 357,

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358 (7th Cir. 19~7r 'I$t4~rmore, on a motion for judgment on the pleadings, the court may

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consider

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in¢orporated
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by

reference

into

the

pleadings

and

may

also

take

judicial

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notice of matters 9.fp~p'.!~~-~Ofd. United States v. Wood, 925 F.2d 1580, 1582 (7th Cir. 1991).

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Case 1:01-cv-:09~51-

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Document 10

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I. Count VI: The·.AI¥nClaim

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Filed 05/20/2002

Page 6 of 17

A. 'PlainttltCa!nnOt Sue IDPA's Director Under Title II of the ADA \~... i<-:'-'

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PlaintifI~eJi IDPA's Director as defendant in this case. Title II of the ADA,

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however, pr{)~!.4eftli!c:I1'l]o qualified individual with a disability shall, by reason of such

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disability, be excl·u".-:::d..:e....d.-t,-fr. om participation in or be denied the benefits of the services, programs,

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or activities of a pu1JIiS.~Iltity, or be subjected to discrimination by any such entity." 42 U.S.C.

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§12132. A "publi~e~~ity" means "any State or local government" and "any department, agency,

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special purpose c:iif:tric~or other instrumentality of a State or States or local government." 42

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U.S.C. §12131(D[&~~--<B). In Walker v. Snyder, 213 F.3d 344,347 (7th Cir. 2000), the

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Seventh CircuifCoUrt o{Appeals held that "[T]he only proper defendant in a action under [Title "--7-7~r:'

II of the ADAfis·f;f,i"e."pru'-hlic body as an entity." Public officials cannot be sued as proxies for the
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entity. 213 F.3d.at34.6._ Accordingly, the court ordered dismissal ofa Title II ADA claim " I
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brought against th~-4irFtor of the Illinois Department of Corrections. 213 F.3d at 347.

.', . I: Subsequently, iiiBQudf~au v. Ryan, 2001 WL 840583, *5 (N.D. Ill. 2001), the court, bound by

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the Walker holding,..cli~IliiSsed a Title II ADA claim brought against various state officials,

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including IDPA'.-s.birePlor: This Court must likewise dismiss Plaintiff's Count VI ADA claim,

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which is improper,!y"_~!Q~lght against an individual state official, not a public entity.

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. .. . . B. There Is No Enforceable Right for Eric to Receive In-Home Private Duty Nursing ~ :~ft~,t._

In Count V.~,~~lFtiff contends that IDPA must provide Eric with in-home private duty

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nursing because.it;is .leg~y compelled to afford services to the. disabled in the most integrated

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community setting"appropriate to their needs. Supplemental Complaint, ~~0-45. Plaintiff is
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really charging .a.~platfc?'~ of one of the ADA's implementing regulations rather than of the ADA

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itself. 28 C~.:&,§).?)~O~~) provides that riA public entity shall administer services, programs,

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and activities :in.tl!..7,:IIl?stintegrated setting appropriate to the needs of qualified individuals with

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disabilities.."_T.ti.,~~Jtself, however, merely prohibits discrimination against the disabled and

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exclusion

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services.

42 U.S.C. §12132.

No community integration

requirement

carij;:e.i()lJnd~in
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the

statutory

text.

Under Plaintiff's interpretation, 28 C.F.R.

§35.130(d) requir~~attm.native action beyond what is required by the ADA. However,
,. .':.::. I:·

regulations creating rights independent of any federal statute are not enforceable laws. Mungiovi '... "

. ;: .. T: v. Chicago Housing A~thority, 98 F.3d 982, 984 (7th Cir. 1996) . See Harris v. James, 127 F.3d . \.' .. ! ..

993, 1009. (11th <:j~.)9?7) (if regulation goes beyond explicating specific content of statute and
....... ,-~~".~:..;,;.,..

imposes distinct obligations in order to further broad statutory objectives, regulation is too far
..... ·1'·
. .. ·.i::.~~. 1: removed from congres.~ional intent to create federal right enforceable under §1983).
,': ·t ':.
For ~!ance~.i~Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517

c.purt .'~, .1'

(2001), the Supre.t#e.

held disparate-impact regulations promulgated under Title VI of the

... I

Civil Rights Act oiJ9q4..to be unenforceable. Title VI provided that no person shall, "on the

.~0;>6.r.,,·.·\l:).n.ational ground ofrace,

origin, be excluded from participation in, be denied the benefits

of, or be subjectedJQ'd,is~rimination under any [covered] program or activity." 42 U.S.C.

on': .. i:.
§2000d. Relying ...,..- ...a. ''t'-e'-g..ulation forbidding funding recipients to utilize administrative methods

...

'. '! :,

' ... ' r.; .

having the effect o.,.f...s.ub.,~ J.ec.ting individuals to discrimination, plaintiff tried to compel ): .' !
accomodation..<?(!£~!i:griglish speakers in administration of driver's license examinations. Any
...:.:: ...!
. ;.
• \.0...... t:\::. .. ·
right of action.to.e.J,l..f.q. (9..e-~"Title VI did not include aright to enforce regulations proscribing [ I.·.

activities

having

a
:

'd.i.s.p:a.'rate

racial

impact

because

Title

VI

interdicted

only

intentional

. discrimination. sj:~.:U~s; at --,121 S.Ct. at 1519. The reg~ation sought to be enforced did not

..... :~.;~.:: ... I: :.:.

apply Title VI, b.u..t-:-r-_a.th_.,:e-, r...prohibited conduct that the statute permitted. 532 U.S. at --, 121 S.Ct. .. !. .
.,:.,. i· . at 1519. Federal ~genG~~.were authorized to "effectuate" Title VI by issuing regulations, 42

-5-

Case 1:01"'cw·09~51 Document 10 Filed 05/20/2002 Page 8 of 17

'. t·
. i'"
r

. .~

,

i·

.

)0...... i.~:.

U.S.C. §2000d-·l, b..u::t' t!h'ey could only effectuate rights already created by the statute and could

. .... ~ .
not themselves create new rights or rights of action. 532 U.S. at --, 121 S.Ct. at 1520-21. The
..?'.. ; .

.: .

. }',~ ", ~

regulation in Sand...o.. val!.could not create a right that Congress had not already incorporated in the

enabling

'i".,:
statute .. ~S.3,2.

:yL:".s.

at

--,

121

S.Ct.

at

1522.

Under the Supr~me Court's holding in Sandoval, the "integration mandate" in 28 C.F.R.

... i

", I'

§35.130(d) cannol'cr~te'-a right to compel IDPA to accomodate Eric with in-home nursing

. ... '~7':' ~ .... !: ......

.

, because this requi~ern~p-t cannot be found anywhere in Title II of the ADA. Title II only
prohibits IDPA,ftqmi;~luding Eric, by reason of his disability, from those services it otherwise
... t
provides. Plamtfq.~hoWever, interprets 28 U.S.C. §35.130(d) as requiring IDPA to create new
. . J"

and additional serVlces;so that Eric may receive government benefits at home. This affirmative

. ;
action requirement,..canihot be created by regulation alone, for the language of the ADA itself does

not

impose

an

afti~~veaction , ,

requirement

on

public

entities.

The United States Attorney

'.:' . :1

General is authori~~,~,~suant to 42 U.S.C. §12134(a), to promulgate regulations that

"implement" Title:n';bhfthis authority is necessarily limited to implementation of this Title's ,:.,.. 1 .

;:.::. 1

prohibition of discji~~,~tory exclusion of the disabled from government services. Plaintiff's

•• :~.:

:

I

. ,\·::··.·i· ,_

.. suggested readiIlg,9l2~ C.F.R. §35.130(d) does not implement 42 U.s.C. §12132; rather it ; .-:

creates aWholene~:,e~r.mlSive range of affinnative governmental obligations not encompassed

! ,
by the language ofJlie'~.iiabling statute. Plaintiffcannot bring a claim for relief based on 28

:.:.:" J

: ~.. . :.

C.F.R. §35.130(d) beca4S.e. the regulatory violation she alleges does not constitute a violation of

· . ;; ~

~ .

..~. :.... i..

42 U.S.C. § 12132.~.~SeeJ»'art I-C below.

·

..•..

,

I.
.

C. The ADA 'Does Not Require IDPA to Provide Eric With In-Home Nursing Care

, '-.'-:' !":'

The ADA~~~o.trequire IDPA to provide Eric with in-home private duty nursing, a

".

f

" '. r

service not covereCi',by 'ilfi.nois' Medicaid Plan, just so that he will not have to be institutionalized

r'
r
-6-

Case 1:01-c'/=09?51 Document 10 Filed 05/20/2002 Page 9 of 17

in a nursing honi~~.ti*~_lI of the ADA is only an anti-discrimination statute prohibiting public

'" .

entities from excl~~~'the disabled from government services, programs or activities. 42 U.s.C.

·

'!

§12132. As such, the..f\DA does not affirmatively require IDPA to provide the disabled with
" .
services not offered to ;anyone else. The Supreme Court cautioned in Olmstead v. Zimring. 527

U.S. 581, 603, n:'J4, 1;19S.Ct. 2176, 2188, n. 14, 144 L.Ed.2d 540 (1999), that "We do not in

this opinion hold.that :the.ADA imposes on the States a 'standard of care' for whatever medical

~ '.

!'

services they reii(iei~ o~'ihat the ADA requires States to 'provide a certain level of benefits to

.'

t .

.......·." .. ....::..i·i........ :.·~_:._ .•
individuals with.dis~l1:>.ipti.es.'" Rather the Court held that "States must adhere to the ADA's

i
nondiscriminatiorf~qillie.inent with regard to the services they in/act provide. II 527 U.S. at 603, ..... f··'.

n. 14; 119 S.Ct.a{21.8~,~:n. 14 (emphasis added).

The ADA.cann,otbe used to challenge the adequacy of the care provided to the disabled .: ::'" f·· ..

or to obtain benefits for-the disabled that are not available to anyone else. The ADA does not

·

~~

.

. ............,.. t· •• :.
guarantee specific·ben~fits. Wright v. Giuliani, 2000 WL 777940 (S.D.N.Y. 2000), p.8, aff'd

.... . .. '::'" .' ~
Wright v. Giuliani.,,239. F.3d 543 (2d Cir. 2000), or insure any particular level of medical care for
.... . _.__~..::....._i..';4'_ .
disabled persoJ:l$......ff.A.M.I. v. Essex County Board ofFreeholder~ 91 F.Supp.2d 781, 788 (M.D.

Pa. 2000). The APAq.e,ither sustains actions seeking special services or affirmative assistance

for the disabled;Cliarlie'ft v. Whitman, 83 F.Supp.2d 476,502 (D. N.J. 2000), nor even assures

. '. .

:

·

I

maintenance ofServic~s"I)reviously provided. CERCPAC v. Health and Hospitals Corporation,.

,
;
147 F.3d 165"lq~".c~;Q~G~.r.~J998). The disabled do not have. a right to more public services than

~

the non-disabled, e...v.. en'.fuough the disabled need them. Lincoln CERCPAC v. Health and

.-.-:" l'

Hospital Cotporatlon, '~77 F.Supp. 274,280 (S.D. N.Y. 1997), affd 147 F.3d 165 (2d Cir. 1998).

the'ilisi~oo!cmnot Therefore

use the ADA to challenge the substance of the services they

. ....

I'

.

>.:_..It.....

.

receive. Doe v. Pfrominer, 148 F.3d 73, 84 (2d Clr. 1998).

i.~: .' 't "'-

:~

:

-7-

Case 1:01-cv"0955-1 Document 10 Filed 05/20/2002 Page 10 of 17

!r,--..'--

f

. ~.

,.' .
".

.:: .' ~ .

The .AI)A~~itIy'~~uires that services provided to others not be denied to the disabled.

Rodriguez v. Ciw·.ofJew York, 197 F.3d 611, 618 (2d Cir. 1999). A state does not unlawfully

discriminate agalnsi"ihe;rusabled by denying a benefit not provided to anyone. Townsend v.

! . . . . ,.;...••: ....•1. .• :__ .
Quasim, 163 F.Sup~8J, 1286 (W.D. Wash. 2001). No matter how much the disabled may ,

i·
need additional ser.vic~s,.the ADA does not require that substantively different services be

.

.!

·..... 1·· provided to them~ '_ Wri,ght v. Giuliani, 230 F.3d at 548. Thus, under the ADA, a state need only

provide the disable.d:ryth meaningful access to "such services as may be provided," regardless of

whether such services: F.adequate. Wright v. Giuliani, 230 F.3d at 548. Under the ADA, it is

. :.:'" L·.:.
not the role ofthe_.c' ou. rit:s to determine what benefits a state must provide. Rodriguez v. City of

New York, 197F.3.d:a{6.19. Rather it is within the purview of the legislative branch to '. i'"

j ..

determine what substantive benefits should be granted. Wright v. Giuliani, 2000 WL 777940,

..

!'

\

p.8.

'.' i'

\

In Rodrlgli~~v.;··Chy of New York, 197 F.3d 611 (2d Cir. 1999), the Second Circuit
;
addressed the city's faWu-e to include safety-monitoring among the home care services provided
. . ~.
to mentally disabled Medicaid recipients requiring assistance with daily living tasks. Plaintiffs
. !..

complained that.this. fai,lure violated the ADA because they could not continue living at home

.

~ .

~.

i

mOilftoriDg: without safetY

The court noted that nobody was provided safety monitori ng and that

the services provi4~d_~,~~e mentally disabled were no different from those provided to anybody
. .... I.'
else. 197 F.3d at 618. '~Therefore the city did not violate. the ADA by failing to provide this .
'. [.
benefit to plahi#fis: .~r9.tJ?3d at 619. Since the ADA only required that-services provided to

..... :... t. '.

.

others not be denied.to.the disabled, plaintiffs were not really alleging discrimination, but rather

.. : .:
..' ','

were challenguig ih~.s.\lh.s.iance of the services they received. 197 F.3d at 618. The court flatly

rejected any contepti<?~ that the ADA requires the states to provide new benefits to the disabled . -:. ;- .
. '-". j-'
-8-

.~

!

Case 1:01-cv-;G95?:1-.'· Document 10 ...... ;...
,
I·

Filed 05/20/2002

Page 11 of 17

"'. ~ .
· ...., t·..·..
_ ...... or to provide ·theni':_\Y.ltfsiifficient benefits to remain out of institutions. 197 F.3d at 619. ....•... .•.. , Similarlyt.!~T?~send v. Quasim, 163 F.Supp.2d 1281 (W.D. Wash. 2001), medically . f

needy disabled i>erso~.who were Medicaid eligible for nursing facility care, but who had excess

r .

income, challeng.e.-d:,. th....e.Lir..'..exclusion from a home and community based waiver program for

..,- , ....,~~ ".~~~ ,..
categorically needy recipients. Plaintiffs contended that the state's failure to provide them with .... t .
,:._._L·.
similar home-based.setv,ices violated the ADA because they were not receiving care in the most
. '.1.
: ,

integrated setting'appropnate to their needs. The court held that, inasmuch as the ADA only

r' . . :.'

forbids exclusion.~o:m~gQvemment programs by reason of disability and the disabled can still be

._"._. , flil" "i1 . $trJ ':j;:".

.

::,,1.-.". ,. •••••::..% •• excluded basedoIi,o#l~t:,~unrelated grounds, the state did not violate the ADA by excluding

.... i

the i:
plaintiffs on basis of their income. 163 F.Supp.2d at 1284. Since plaintiffs exceeded the

.. '

f·

1"
income limits ofi1i~gq~~-based program, they could not meet that program's essential eligibility

.'. ~. .:

j' '.
r:
requirements. 163.J~S~pp.3d at 1284-85. Modification of the program's income limit would be

;

•• I ' ·

. ;".

a fundamental alte..ratiopof an essential eligibility requirement and was not mandated by the

',: .~.

i;'

........

..... :.

ADA. 163 F.Supp.2d 1285. The ADA merely required nondiscrimination with regard to
· ..[:

. ... :.:'..- .~. : ;.... ~:~ ..
services the stat~.:~~¥.provided. 163 F.Supp. at 1287. Because the state did not provide

. ~.,
. 'f
home-based programS F~the medically needy, the· integration mandate contained in 28 C.F.R.

, .
§35.130(d) did not:c0r?p~lcreation of such programs for plaintiffs. 163 F.Supp. at 1287. See

i
also Hodges v. Smith, ~lO.F.Supp. 646, 649 (N.D. Ga. 1995) (no cause of action under ADA to .i ~....
require state to ~1llrteip'ayments for nutrient which had been discontinued when severely

retarded Medicail~Cip~ent turned 21 years old, notwithstanding argument that plaintiff would
..... 1·.·..

· .! ....
be forced to leav.eJ~.il?~~y and live in nursing home); Egan v. DeBuono, 259 A.D.2d 414,688 : ,.' ·t· ....

N.Y.S.2d 18 (N:Y~·:~~~::'¢t. App.Div. 1999) (determination that person suffering from bipolar

·

l .

.' i

.". ... j . . . .

disorder was no longer eligible for 24-hour in-home personal care services did not violate ADA's

,

......: ~:....;...- " .

-9-

t·
.. i

Case 1:01-cv-:09".5'tr5",4" Document 10 Filed 05/20/2002 Page 12 of 17

).

. . . .. ~ .

.: .

,
I .
. i

integration reqWt~m~~tdespite allegation that plaintiff would be institutionalized in nursing

. . ~.

home).

· . ,.
. .j

·

;, .

In the pres...,.~ii(, c~e,IDPA's refusal to provide Eric with in-home private duty nursing is

.··~::·-·t... .

based on his age, nothlsdisabllity. Illinois' Medicaid program provides private duty nursing

rl only to children w;t.der years old who are identified as needing this service through an EPSDT , . "•••. t screening (Earlian((P~riodic Screening, Diagnosis and Treatment Program). Services under
. :i :

Illinois'

E

P

S

D

T

p
· ..

r

ogr
;. . ..~. :

-k: .

are

only

available

to

persons

under

age

21,

305

ILCS

5/5-19(a),

and

private duty nursing 'is ,.;.p'rovided to these children because federal law requires provision of this !
optional Medicaid..servlceto EPSDT participants, even though it is not covered in this State's

..!' .
Medicaid Plan.. 42lJ:~.C. §1396d(r)(5). A state may exclude the disabled from a program on

': ····t··

age, which the basis of their'

is a factor unrelated to their disability. See Hodges v. Smith, 910

..' :·1:·.··

F.Supp. 646, 649 (N~b.~'Ga. 1995) (after former EPSDT participant turned 21, ADA did not

,.
i·

require continued·M·.~..ed:l1c' ai.d reimbursement for his liquid diet); Aughe v. Shalala, 885 F.Supp.

1428, 1433 (W.D._W~~. 1995) (AFDC program eligibility requirement based on age did not
·: .":.." . ' rt',

violate ADA). Smc.e..E.rl.CJs an adult, he cannot, as the ADA itself requires, 42 U.S.C.

> l.·

a § 12131 (2), be "qua)jf;j.ed individual" who "meets the essential eligibility requirements" for the

. ~'.' . ' ~ ..

.:.i~."',· t.::'"

receipt of an E~SQ+..",,!.rl: ~ce such as private duty nursing. Under both federal and state law, the

; -' .~. .

~

EPSDT program proy~~_e~.services only to children and thus this age restriction is an essential

'\'.
:':2',' 1·
eligibility requi~~¢~t!.~umishing.private duty nursing to Eric, as Plaintiffrequests, would

fundamenta1ly.~t~rJ.4.e.fharacter of the EPSDT program. A public entity, however, is not required to make...a..)=::.~."..o._4..,..1!i.-,~•c.·ation in its policies, however arguably reasonable, if that modification
.:';:'. -t·
IIwould fundame,~~!y'~~~ th~ uature of the service, program, or activity." 28 C.F.R. . '. . . ";-

§35 .130(b)(7).

.:.. '-" . i '', 'J "'.
i

-10-

Case 1:01-"cv.:0955t- Document 10 Filed 05/20/2002 Page 13 of 17 '. !

,
Since IDPA. _do~s not provide private duty nursing to any adult Medicaid recipient, it

cannot discrimina!e .ag~st Eric on the basis of his disability by not providing this service to him.
':' !
Under the guise of.~l~ging an ADA violation. Plaintiff is actually challenging the adequacy of

. '.... L

the

nursing

servi~s_IDP.A
. ~

reimburses,

which

she

alleges

are

insufficient

to

allow

Eric

to

.

'I

continue residinga·t.ho,.m.. e. The ADA. however, only dictates evenhanded administration of

whatever servicesJDP!\.actually provides to the public. The ADA does not require IDPA to
. . . .. ~ ..-:

provide the disapl~g..~\ifficient services to remain at home. Consequently, the ADA does not

· .

rI ·

......:...:. ... l_ ..··

require IDPAto,:cteate!and fund new services especially for Eric, no matter how salutary such

services could b.e.9~-)19-W socially desirable it might be to keep him out of a nursing home.

!,

II. Count VII;'~]~r~h~bilitation Act Claim

·

:

A. There Is N9Enforceabie Right for Eric to Receive In-Home Private Duty Nursing

The Reh~~iiita#on Act of 1973 provides that "No otherwise qualified individual with a

disability inJ~JJ~teJ(.sjates ... shall, solely by reason of his or her disability, be excluded from

:.

:

the participation iri•.J;t~.~!i,epied the benefits of, or be subjected to discrimination under any . ;. !

program or activity ~~iVing Federal fmanciaI assistance." 29 U.S.C. §794(a). An

implementing·teguiation states that "Recipients [offederal financial assistance] shall administer '.-~" .--.~-!~-~. -
programs and,ac.ti¥itie~.in.the most integrated setting appropriate to the needs of qualified

handicapped pe~q~;.'1 ~48, C.F.R. §41.51 (d). Like the ADA, the Rehabilitation Act is only an ·. 1

I

anti-discrimi1iatioii;s.ta.{Ut~, Insofar as Plaintiff interprets 28 C.F.R. §41.51(d) as requiring states.

.

.

~.<.-.... - . " .
to fund any and ev.ery ·~ervice necessary to keep the handicapped out of nursing facilities, that

regulation is an:·~auihprized implementation ofthe Rehabilitation Act and creates no

enforceable rigb.(tii.sJ.l~servic~ for the same reasons as stated in Part I-B of this Memorandum

..

't'
. ,

regarding the'ADf,\":s.s~ilar implementing regulation.

-11-

Case 1:01-cv-09551· Document 10 Filed OS/20/2002 Page 14 of 17

• .'

I

, .. _ •••.•..• f .

i
The fmaJ.:td.~~o.~ligation Plaintiff seeks to impose on the states is potentially enormous

and, indeed, co.Uld even be ruinous. Hundreds of thousands of disabled and handicapped

individuals either,9.~~ntly receive Medicaid-funded care in nursing homes or will eventually

...

. ~

become eligibkfQr.su~h:care. Many of these persons could instead be maintained at home if a

sufficient amount'ofe~pensive private duty nursing were made available. Under Plaintiffs view

of the RehabiIltadonAci;states would be required to provide exactly this type ofin-home care to

every such actual o.r pqtential adult Medicaid nursing home resident. Neither the Rehabilitation

Act nor its implefi,1en~if1g regulations can plausibly be read as imposing a sweeping and open-

ended deinstitutioi.ta1i~tion mandate on the states as a condition on federal funding. The

.

.•. t .

. .~ . .

j.:

Rehabilitation Act is legislation enacted under Congress' spending power. Stanley v. Litscher,

213 F.3d 340, 344 (71~ ~ir. 2000). Legislation enacted under the spending power must

unambiguously im..pose: a.condition o.n any grant of federal money, particularly where it is alleged

that Congress iniei.i..d. ~4....the states to fund an entitlement. Pennhurst State School and Hospital v.

Halderman, 45i ~:S~·(~ '17,101 S.Ct. 1531,1540,67 L.Ed.2d 694 (1981). In Pennhurst, the
;

Supreme

Court

he. ld

that ;

ihe

Developmentally

Disabled

Assistance

and

Bill

of

Rights

Act

did

not

.

. .

require the statest9 as~ume i._ ... •• ..:.....••..l.:.........:... the high cost of providing the mentally retarded with "appropriate

treatment" in.the..1e:a.S.Uestrictive environment." 451 U.S. at 18, 101 S.Ct. at 1540. In the

present case, a speCtfic;d.einstitutionalization mandate cannot legitimately be extracted from a

vague requiremen~.to ~ster programs in "the most integrated setting appropriate to the needs

.

i

of qualified hancficappecCpersons" (language fo.und in an implementing regulation and not in the

statute itself)..28 .G.F.R~ §41.S1(d). Such indeterminate regulatory language cannot support
. :'
Plaintiffs thai claim. ... .....i.b.5.C"B:~.~~~mtation Act requires IDPA to provide Eric with in-home nursing.

-12-

Case 1:01-cv-0955-t Document 10 Filed 05/20/2002 Page 15 of 17

B. The Rehabilitation Act Does Not Require IDPA to Provide Eric With In-Home Nursing Car:e
Because_ tJ:ie.R~habilitation Act is materially identical to, and the model for, the ADA,
except that it is liIirit~ to programs receiving federal fmancial assistance, courts need not address
a Rehabilitation Act cl~ separately from an ADA claim. Crawford v. Indiana Department of
Corrections, 113 F.3d ~81, 483 (7th Cir. 1997). Courts rejecting ADA claims also reject them
!
when brought Ul)d~r,.:thP.,Rehabi1itation Act in a separate count. See e.g. Rodriguez v. City of
New York, 197F)d 6p, 618-19 (2d Cir. 1999). Thus, for the same reasons stated in Part I":C

regarding the ADA,.the Rehabilitation Act does not require IDPA to provide Eric with in-home nursing. Moreov:er~_Il~~$er the language, purpose, nor history of the Rehabilitation Act reveals any Congressiona1 inte~fto impose an affirmative-action obligation on recipients of federal

funds. SoutheastiriiC?riununity College v. Davis, 442 U.S. 397,411,99 S.Ct. 2361, 2369-70,
;
60 L.Ed.2d 980 (1979),-

In Alexandei-v:'Choate, 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d 712 (1985),

".

~

.

handicapped Medrcaid;~dpients asserted that reducing the number of annual hospital days

covered by a state-pro*-~ violated the Rehabilitation Act. The Supreme Court pointed out that

..

!

the reduction left 60th handicapped and nonhandicapped Medicaid recipients with the same _.

services. 469 U:S-=at.3Jj2~ 105 S.Ct. at 721. The greater need of the handicapped for prolonged

hospital care did- not"reqiiire the state to single them out for more coverage, even if the remaining --.-:. -:. i-::,-·
services were··iiiadequ. a:t"e.:.'A69 U.S. at 302-03; 105 S.Ct. at 721. The Medicaid Act conferred
substantial discretion.dJuhe state to determine the amount and scope of its coverage and the . .i -;
Rehabilitation Act_did~not override that discretion. 469 U.S. at 303; 105 S.Ct. at 721. The state
to. did not need choose-~the. benefit option most favorable, or least disadvantageous, to the
I
-13-

Case 1:01-cv~955:1-'· Document 10 Filed 05/20/2002 Page 16 of 17

! .
handicapped. 4~9J1.,S'r~t307, ... "'... o:;_---.:•.:>:.~.~,. n. 32; 105 S.Ct. at 723, n. 32. The Rehabilitation Act assured
.. ...••.~, -~-~-
evenhanded treatment, but-did not guarantee that the handicapped would receive "adequate health

.. •••• ~'poi.

'.

.. • I.~"

care" precisely tailored.to their particular needs.

469 U.S. at 303-04; 105 S.Ct. at 721-22.

See

also Parks v. Pavk9vic, 75.3 F.2d 1397, 1409 (7th Cir. 1985) (Rehabilitation Act does not force

"

~

states to create speCi~l·~rograms for handicapped children). In the present case, Plaintiff wants

.........,..:~.....-:. ...i ..• "'~I".
IDPA to take affirmati~eaction by providing her son with private duty nursing, an in-home

service not for;any covere~ .... "-:"'~'~--:';"';~.'" '.., adult recipient under this state's Medicaid program. This type of

~. .;~......~:,.. .,:i•.:~::' .
affirmative action for_t4~handicapped, however, is not mandated by the Rehabilitation Act.

III. CONCLUSION

THEREFORE, .

f,. orJhe

reasons

stated

in

this

Memorandum,

Defendant

respectfully .

requests this CoUrt to ·~ant her Motion for Judgment on the Pleadings and enter a judgment in

;

! .

. _0_.'

, .. _.

her favor on Count.sYJ,a.nd VII of Plaintiffs Supplemental Complaint for Injunctive Relief.

i

Respectfully submitted,

; ...... .

James C. O'Connell

David Adler

Christopher S. Gange .

Assistant Attorneys Geperal

(Of Counsel) .

160 North LaS.alleStre~t

Suite N-1000

:

Chicago, Illinois 60601

(312) 793-238.0.. :.:~;... :.·:'r·:~:·

James E. Ryan, Attorney General of Illinois
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Document 10

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Page 2 of 17

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UNITED STATES DISTRICT COURT
. . NORTHERN DISTRICT OF ILLINOIS
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EASTERN DIVISION

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DONNA RAP.AS~Evt~~, Guardian, on behalf )

of Eric Radaszewski, , Plaintiff,

vs.

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JACKIE GARNE~ I>~~ctor of Illinois

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Civil Action

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No. 01 C 9551

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Judge Darrah

MAY 2 Q 2C02

Department of P_1,l_~lj~.~d,

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-'~De"f": e'.n.da!'"nt

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DE".F..iJ;:-:N-.:.-_r....i.t:~....T... 'S MOTION FOR mDGMENT ON THE PLEADINGS

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NOW .CQMEs,.u~fendant JACKIE GARNER, Director of the Illinois Department of

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Public Aid, by her~a· t.ioi me'.y James E. Ryan, Attorney General of Illinois, and moves this Court,
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pursuant to Fedel1!J.J~.\l~C;,ofCivil Procedure 12(c), to enter judgment in her favor on Counts VI

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and VII of Plaintiff's pieadings in this case. This Motion is based upon the accompanying

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Respectfully submitted,

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James E. Ryan,

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Attorney General of Illinois

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David Adler ". '.~."" . --t:> .
Christopher S. G~ge :

Assistant Attorneys' Ge;neral

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 </s> ! Case 1 -cv-09551 Document 12 Filed 06/18/2002

1 16

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

i
PONNA RADASZEWSKI,

DOCKETED
)

) JUN 1 9 2002

Plaintiff,

)

)

vs.

)

)

JACKIE GARNER,

)

)

Defendant.

)

Response to Defendant's Motion for Jude;ment on the Pleadings
i
I. Introduction

This case involves a severely disabled young man--Eric Radaszewski-- who requires 24

Ihours a day of nursing in order to survive. The defendant sought to reduce funding for in-home
I
! skilled nursing services in August 2000 when Eric turned 2] to such an extent that he could no
I
i longer remain at home. The only option for him would be long-term institutionalization. Plaintiff
!
! challenged the defendanfs decision to discontinue funding for in-home skilled nursing services
,
, for Eric by alleging such decision violates Title II of the Americans with Disabilities Act (ADA)

I as well as Section 504 of the Rehabilitation Act. Defendant consistently mis-characterizes this
I
I
! action as one in which plaintiff seeks to extract a new service from the state which it does not
I
otherwise provide to any other person under the Medicaid program. Plaintiff, however, asserts

that Illinois currently provides nursing and necessary medical services to Medicaid recipients in

institutional settings but denies the-same services to persons at home. Plaintiff further alleges
I
I that the cost of in-home nursing services is less than or equal to the cost of services Eric would

require in an institution. (See Plaintiff s Supplemental Complaint, Count VI, pars. 40-41.)

1
\~

; Case 1 -cv-09551 Document 12 Filed 06/18/2002

2 16

It is settled law that in a motion for judgment on the pleadings under PRCP l2(c), all
jell-pled allegations in the complaint are taken as true and that all reasonable inferences are
I
drawn in favor of the plaintiff. Forseth v. Village of Sussex, 199 F.3d 363 (7th Cir. 2000). A
Idefendant can prevail on a l2(c) motion only if "it appears beyond doubt that the plaintiff cannot
prove any facts that would support his claim forrelier." Thomason v. Nachtrieb, 888 F.2d 1202
pth Cir. 1989). The plaintiffs allegations that Illinois presently provides Medicaid coverage for
I
,skilled nursing and other medical services in an institution but not alternative skilled nursing
!
Iservices in the home, and that the cost of in-home services is equal to or less than the cost of
I
I
iinstitutional services, must be taken as true for purposes of the present motion.
I
The central question of this lawsuit, then, is whether as a matter oflaw, defendant's
I refusal to cover cost-effective alternative treatmentin a community based setting for Eric rather
I I
I
: than segregated in an institution constitutes illegal discrimination in violation of the ADA and
I
Section 504 of the Rehabilitation Act.
II. The ADA proscribes delivery of services in g manner that cause~ unnecessary segregation and affords persons with disabilities the right to sue to enjoin such segregation.
The ADA provides that "no qualified individual with a disability shall, by reason of such
disability, be excluded from participation or be denied the benefits of services, programs or
activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C.
§12132. In Olmstead v. L.C, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), the
Supreme Court decided that unjustified segregation of persons in institutions constitutes a form
I of discrimination based on disability prohibitedby this provision. Olmstead involved two
women with severe developmental disabilities and mental illness confined to Georgia's state-run
2

Case 1 -cv-09551 Document 12 Filed 06/18/2002

3 16

psychiatric hospital. They had been waiting for years for alternative treatment in a community-
i based program recommended by their physicians. Their guardians claimed that Georgia's
I
policies limiting community based services available as an alternative to the institutional services
I
they were relegated to violated the ADA. Georgia officials argued that they had not
discriminated against the plaintiffs based on their disabilities, that the state was already using all
available funds to provide home and community-based services to other persons, and that a court
order directing the state to transfer the plaintiffs to the community would fundamentally alter its
services. 527 U.S. at 596-597.
In construing whether Title II's prohibition against discrimination encompasses
I
I I unjustified institutionalization, the Court examined Congress' legislative findings stated in the
ADA describing segregation as a form of discrimination. Congress found that:
historically, society has tended to isolate clnd segregate individuals with disabilities, and despite some improvements, such forms ofdiscrimination against persons with disabilities continue to be a serious and pervasive social problem;" that "discrimination against individuals with disabilities persists in such critical areas as institutionalization;" and that "individuals with disabilities continually encounter forms ofdiscrimination, including ... failure to make modifications to existing facilities and practices ... and segregation. 42 U.S.C. §12101(a)(2),(3),(5). [527 U.S. at 588 (emphasis added)].
The Court next examined Congress' direction to the Attorney General to issue
implementing regulations consistent with Title ILand "with the coordination regulations...
applicable to the recipients of Federal financial assistance under [§504 ofthe Rehabilitation
Act]." 42 U.S.C. §12134(b). Among these §504regulations expressly endorsed by Congress is
the "integration regulation" requiring recipientsoffederal funds to "administer federal funds in
the most integrated setting appropriate to the needs of qualified handicapped persons." 28
C.F.R. §42.51(d). The Court then set out the Attorney General's Title II regulation, 28 CFR
3

Case 1 -cv-09551 Document 12 Filed 06/18/2002

4 16

§35.130(d), modeled on this §504 regulation, which provides: "A public entity shall administer
,I
, services, programs and activities in the most integrated setting appropriate to the needs of
I
qualified individuals with disabilities." Without ruling on the validity of the regulations, the
I
:Court looked to the regulations for guidance in'interpreting the scope of proscribed
I
I discrimination under Title II, observing that the "well-reasoned views of agencies implementing
II a statute constitute a body of experience and infonned judgment" aiding in judicial construction
i of a statute. 527 U.S. at 598. In light of the legislative history ofthe ADA, Congress' express
i
I findings that segregation is a form of discrimination, its directive to the Attorney General to issue

I implementing regulations consistent with §504's implementing regulations, and the impact

I

I

, unjustified institutionalization has on the lives of persons with disabilities, severely diminishing

I

.

I

.,.-..,.

I their basic human interaction, including their family relations, as well as the impact on the

I

I community, perpetuating unwarranted assumptions that persons with disabilities are unworthy of

I

I

....

I participating in community life, the Court concluded that unjustified institutionalization is

I
I discrimination prohibited by §12132 of the ADA. 527 U.S. at 600-603.

I

Without mentioning Olmstead, defendant argues that the text of the ADA does not

prohibit unnecessary segregation of persons with. disabilities, that the only support for the

proscription comes from the integration regulation, 28 C.F. R. Sec. 35.130(d), and that under the

Supreme Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001), a regulation not

grounded in statutory text cannot give rise to an enforceable right. (Def. Mem. at pages 4-5).

Sandoval, however, does not apply here. In Sandoval the Court held that because the text of

Title VI of the Civil Rights Act of 1964 had been construed to proscribe intentional

discrimination only, an administrative regulation prohibiting disparate impact discrimination as

4

Case 1 -cv-09551 Document 12 Filed 06/18/2002

5 16

w, ell could not give rise to an enforceable right by p.rivate individuals. By contrast, in Olmstead
~e Court construed the statutory language of the ADA, looking to the regulations for guidance

only, and concluded that unnecessary segregation of persons with disabilities in institutions is a
I

form of discrimination prohibited by the statute itself. See, Ability Center of Great Toledo v.

I

I

.

Sandusky, 181 F.Supp.2d 797,801 (N.D. Ohio 2001), Frederick v. Dept. of Public Welfare, 157

I
f,Supp.2d 509,538-539 (E.D.Pa. 2001)(similarly distinguishing Sandoval).
I

Defendant also argues that the statute does not require IDPA to provide Eric with in-

rome nursing services. Def. Mem. at pages 6-11. The statute does not itemize services that
!
:states must provide to persons with disabilities. What it prohibits, however, is unjustified
i
;delivery of services in an institutional setting only. Plaintiff alleges in Count VI of her
IiSupplemental Complaint that the Illinois Medicaid program provides long-term care services for

:persons with disabilities in hospitals and skilled nursing facilities. Defendant admits this
I
!

I averment. Supplemental Complaint, Count VI, Par. 40, Defendant's Answer. Plaintiff also

I

.

: avers that in-home nursing care is the most integrated service setting for Eric and is at least as
I

. cost-effective as treatment he would receive in aninstitution. Supplemental Complaint, Count

II
I VI, Par. 41. Defendant denies this averment, but in pursuing this Motion, defendant must take

I
the allegations ofthe Supplemental Complaint as true. Defendant's restriction of adequate long
I

I term care nursing and medical services for Eric in an institutional setting only is unjustified given
,
the alternative cost-effective in-home nursing available to Eric. Defendant's termination of this I
! appropriate and cost-effective home-based care constitutes unlawful discrimination under the
I
!
; ADA as the statute has been interpreted by the U.S. Supreme Court in Olmstead.

Defendant's statements that "Title II of the ADA is only an anti-discrimination statute

5

Case 1 -cv-09551 Document 12 FHed 06/18/2002

6 16

i
prohibiting public entities from excluding the disabled from governmental services, programs or
activities" was rejected by the Supreme Court in Olmstead. This was, in fact) the position taken
I'
/by the dissent. 527 U.S. at 616. All the. cases defendant cites at pages 7 through 10 of her
i
',Memorandum either pre-date Olmstead (CERPAC:L Health and Hospitals Corporation, 147
,
F.3d 165 (2d Cir. 1998) (expressly declining to decide the ADA integration issue), Doe v.
I
tfrommer, 148 F.3d 73 (2d Cir. 1998), Hodges y.:. Smith, 910 F.Supp. 646 (N.D. Ga. 1995),
iAUghe L Shalala, 885 F.Supp.l428 (W.D. Wash. 1995)) or do not involve facts similar to those
:in Olmstead or as alleged in the present case, where the state will cover long term care medical
,and nursing services in an institutional setting, but refuses to cover the home-based alternative
i
inursing services that are just as cost effective (M., Wright v. Guiliani, 230 F.3d 543 (2d Cir.
!
r2000)(integration was not at issue), Rodriguez v.City of New York, 197 F.3d 611 (2d Cir.
I I 999)(finding that personal safety monitoring services plaintiffs sought were not provided under
,
II any setting so failure to provide them to Alzheimer's patients in-home did not violate the ADA ! I or the Rehabilitation Act), Townsend v. Quasim, 163 F.Supp.2d 1281 (W.D. Wash.2001)(state
I
I did not violate the ADA by excluding persons with excess income from home based services).
I !
, To the extent these cases hold that unjustified segregation of persons with disabilities in
I institutions does not constitute discrimination prohibited under Title II of the ADA, they run
!
afoul of the Supreme Court's decision in Olmstead.
III. Plaintiff May Properly Bring Her ClaimOnder Title IT of the ADA Against Defendant
Pursuant to Ex Parte Young.
In its Memorandum Opinion and Order entered on April 30,2002 in this case, the Court
found that the Eleventh Amendment to the Constitution did not bar Ms. Radaszewski's claim
6

Case 1:01-cv-09551 Document 12 Filed 06/18/2002

7 16

. under Title II of the ADA because she was seeking prospective injunctive relief against a state
official, the Director of the Illinois Department ofPublic Aid, to remedy an alleged present
violation of a federal statute as authorized by the decision ofthe United States Supreme Court in
Ex Parte Young, 209 U.S. 123, 159-60 (1908).J{elying on the Seventh Circuit's decision in
Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000), the defendant requests that this Court repudiate
its April 30, 2002, decision and dismiss Ms. Radaszewski's Title II claim.
In Walker, a sight-impaired inmate ofthe.IUinois Department of Corrections alleged a
n violation of Title of the ADA for failure by the Department to accommodate his disabilities by
, furnishing books on tape, a brightly lit cell by himself, and transfer to a less restrictive prison. Walker v. Snyder, 213 F. 3d at 345. 1 The Seventh Circuit concluded that because Title II of the
ADA forbids discrimination by "any public entity," a suit brought under the doctrine of Ex Parte
Young was not possible because such a suit necessarily is a suit against individuals and the only
proper defendant in an action under the ADA is the public body as an entity. Walker v. Snyder,
213 F. 3d at 347.
Two recent decisions of the United States Supreme Court, Board of Trustees of the
University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001), and Verizon MD. Inc. y.:.
Public Service Commission of Maryland, 122 S.Ct. 1753,2002 U.S. LEXIS 3787 (May 20,
1 The United States District Court had dismissed Walker's Title II ADA claim for failure I to state a claim for which relief can be granted after detennining that Walker had received the . reading aids he was requesting and that his remaining claims were too vague to support relief.
Walker v. Washington. 1998 U.S. Dist. LEXIS'9128 (N.D. Ill. June 11, 1998). Walker appeared pro se before the district court and theS.eventh Circuit. Rather than affirm the district court's decision based upon that court's legal conclusion, that Walker had not stated a claim that justified relief, the Court of Appeals in three par~graphs found that Title II of the ADA was not I legislation that abrogated Illinois' Eleventh Immunity and that the doctrine of Ex Parte Young . did not apply to lawsuits brought under Title II of the ADA.
7

Case 1 -cv-09551 Document 12 Filed 06/18/2002
. i

8 16

.2002), have effectively overruled the Seventh Circuit's decision in Walker. Accordingly, this
.Court should not believe itself bound by the Walker decision and should permit this case to
I
i
proceed to the merits on Ms. Radaszewski's Title II ADA claim.
Garrett was a suit brought under Title I ofthe ADA, 42 U.s.C. §12132 et seq., by
I disabled state employees alleging that the State of Alabama had discriminated in its employment
I
I
practices. The complaint sought only damages. 531 U.S. at 360. The Court ultimately decided
i that Alabama was protected by Eleventh Amendment Immunity because Title I of the ADA was
I
not legislation enacted under Section 5 of the Fourteenth Amendment. 531 U.S. at 374.
I
I However, the Court, after deciding that the Eleventh Amendment applied, expressly explained
that the standards of Title I of the ADA could still be enforced by private individuals in actions
I
! for injunctive relief under Ex Parte Young.
I I
Our holding that Congress did not validly abrogate the State's sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damag~s, as well as by private individuals in actions
for injunctive relief under Ex Parte Young, 209 U.S. 123,52 L. Ed. 714,28 S. Ct. 441 (1908). [531 U.8. at 374, n. 9.]
Since both Title I and Title II of the ADA apply to an "entity," the Court's determination
that a private person can maintain a suit under the doctrine of Ex Parte Young under Title I also
applies to suits brought under Title II. Title I ofthe ADA applies to a "covered entity." 42
U. 8.C. §12112(a). The term "covered entity" under the statute does not refer to individuals.
"The term 'covered entity' means an employer, employment agency, labor organization, or joint
labor-management committee." 42 U.S.C. §1211(2). Similarly, Title II of the ADA provides
that "no qualified individual with a disability shall, by reason of such disability, be excluded
8

, Case 1 -cv-09551 Document 12 Filed 06/18/2002

9 16

from participation in or be denied the benefit of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity." 42 U.S.C. §12132. Indeed, the
~upreme Court's decision in Garrett regarding the availability of Ex Parte Young was made
potwithstanding a line of decisions that had found that suits generally under the ADA, Title VII
I
:ofthe Civil Rights Act of 1964,42 U.S.C. §2000e(b), and the Age Discrimination in
i ;
,Employment Act, 42 U.S.C. §630(b), had to be brought against the employer as an entity, rather
I: ,
Ithan against an individual. See, EEOC y.:. AIC Security Investigations, 55 F. 3d 1276, 1280-
:1281 (7th Cir. 1995), and cases cited therein.
Even more recently, within the last month, the United States Supreme Court decided
Verizon MD. Inc. v. Public Service Commission of Maryland, 122 S.Ct. 1753, 2002 U.S.
I
;LEXIS 3787 (May 20,2002). Verizon alleged that the Public Service Commission of Maryland
I and its individual members had violated a provision of the Telecommunications Act of 1966, 47
: U.S.C. §252(e). Maryland asserted immunity from suit in federal court based upon the Eleventh
IAmendment. It argued that the doctrine of Ex Parte Young does not pennit suit against the
individual officials, the same argument that defendant Jackie Gamer asserts in this case. The
I I
I' Court rejected that argument finding that Verizon.could bring suit against the individual
I'
commissioners in their official capacities, pursuant to the doctrine of Ex Parte Young. In so
, ruling, the Court explained that the process that a court must undertake in detennining the
applicability of Ex Parte Young is a "straightforward inquiry into whether [the] complaint alleges
an ongoing violation of federal law and seeks relief properly characterized as prospective." This
Court has already found that Ms. Radaszewski has made these allegations in detennining the
9

Case 1:01-cv-09551 Document 12 Filed 06/18/2002 Page 10 of 16
,applicability of Ex Parte Young to this case.2
The Garrett and Verizon decisions that individual state officials may be sued is also
I consistent with the rationale of Ex Parte Young and the concept that it acts as a necessary fiction
i
,to prevent ongoing violations of federal law by government officials. In Ex Parte Young, 209
I
u.s. 123,28 S. Ct. 441,454 (1908) the Court explained that when the:
act to be enforced is alleged to be unconstitutional, and if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of complaints is a proceeding without the authority of and one which does not affect the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting by the use of the name of the, State to enforce a legislative enactment which is void because unconstitutional.3
; In Gregory v. Administrative Office ofthe Courts of the State of New Jersey, 168 F. Supp. 2d
I
! 319 (D. N.J. 2001), involving allegations of violation of Title II of the ADA, the court explained
, I
, that the Ex Parte Young doctrine has been called an "obvious fiction" because when a state
I
: official is sued to enjoin the enforcement of an official state policy, the real party in interest is the
I
state and the suit proceeds as if the state had been the named party. 168 F. Supp. 2d at 327-29.
2 The Court's decisions in Garrett and Verizon are consistent with its previous decisions regarding the liability of public entities by suits against officials brought against them in their ~ official capacities. Kentucky, DBA Bureau ofS!llte Police v. Graham, 473 U.S. 159 (1985) I involved a claim against a state enforcement agency for attorney's fees. The Court explained that in a suit against state officials in an official capacity action, "the entity's policy or custom must
playa part in the violation of federal law. 473 U.S. at 166. In this case, Ms. Radaszewski has
alleged that "[u]nder the Department's policy, Eric may receive Medicaid payment for necessary long term care services in institutions, meaning skilled nursing facilities and hospitals, but not at I home." (Supplemental Complaint for Injunctive Relief, Count VI, Paragraph 40). Moreover, the seminal case regarding the obligation of the state to provide services in the community rather , than in institutions for appropriate disabled individuals, Olmstead v. L.C., 527 U.S. 581(1999), . proceeded as a case against state officials for prospective injunctive relief no doubt under the authority of the doctrine in Ex Parte Young.
3 The Supreme Court has extended the Ex Parte Young doctrine to violations of federal statutes as well as the United States Constitution. See Green v. Mansour, 474 U.S. 64(1985).
10

Case 1:01-cv-09551 Document 12 Filed 06/18/2002 Page 11 of 16
I Thus, a suit against a state official under such circumstances is a suit against an entity, the state, . and is pennissible under Ex Parte Young. In Carten v. Kent State University, 282 F.3d 391 (6th
Cir. 2002), a suit brought by a university student against university officials alleging a failure to accommodate his disability in violation of Title II of the ADA, the court rejected the argument that defendant makes here, that Title II of the ADA imposes its requirement only on public entities. Instead, the court found that under the doctrine of Ex Parte Young the state officials when acting in their official capacities are the entity. 282 F. 3d at 396.
Finally and overwhelmingly, the federaLcQurts in this country, especially since the Supreme Court's decision in Board of Trustees of the University of Alabama v. Garrett. have detennined that actions brought under Title II of the ADA may proceed under the doctrine of Ex Parte Young. Garrett was decided on February 21, 2001. Since that time, the Courts of Appeals for the Second Circuit, Garcia v. S.U.N.Y. Health Sciences Center 9iBrooklyn, 280 F.3d 98, 115 (2nd Cir. 2001) (dicta), the Fifth Circuit, Reickenbacker.Y;. Foster, 274 F.3d 974, 977 n. 9 (5th Cif. 2001) (dicta), the Sixth Circuit, Carten v. Kent State University, 282 F.3d 391, 396 (6th Cir. 2002) (suit by university student regarding accommodation ofa disability), the Eighth Circuit, Klingler v. Brashear, 281 F.3d 776 (8thCir. 2002) (suit alleging that fee charged for placards allowing use of accessible parking spaces to the disabled), and the Tenth Circuit, Armstrong v. Davis, 275 F.3d 849, 880 (lOth Cif. 2002) (suit alleging failure to accommodate disabled prisoners) have so detennined. Previously, the Court of Appeals for the Ninth Circuit I had made a similar decision. Annstrong v. Wilson, 124 F.3d 1019, 1025 (9th Cir. 1997) (inadequate prison facilities for disabled prisoners). No court of appeals since Garrett has found to the contrary.
11

Case 1:01-cv-09551 Document 12 Filed 06/18/2002 Page 12 of 16

Similarly, since the Garrett decision at least nine United States district courts have
applied the Ex Parte Young doctrine to proceedings brought pursuant to Title II of the ADA.4
I
!Most of these decisions have expressly followed footnote 9 of the decision in GarrettS and some
i
,have specifically rejected the argument that only an entity can be sued under Title 11.6 The law
has been clarified since the Seventh Circuit's decision in Walker. A suit against a state official
. brought against that official in his or her official capacity for prospective injunctive relief is

4 Shepard v. Irving, 2002 U.S. Dist LEXIS 10189 (E.D. Va., June 5,2002) (disabled

college student seeking accommodation of her learning disability), A.A. v. Board ofEduccation,

· Central Islip Union Free School District, 196 F.Supp. 2d 259 (B.D. N.Y. 2002) (suit challenging

supervision of special education by State), Daigle v. Louisiana Dept. of Social Services, 2002

: U.S. Dist. LEXIS 2436 (E.D. La, January 31, 2002) (suit by college student to obtain reasonable

I accommodation of her disability), Johnson v. State of Louisiana. 2002 U.S. Dist. LEXIS 1284

· (B.D. La, January 18,2002) (denial of financial aid to disabled college student), Fetto v. Sergi,

I 181 F. Supp. 2d 53, 75 (D. Conn 2001) (student challenging individual education plan), Parker v.
iI Michigan Dept. of Corrections, 2001 U.S. Dist. LEXIS 18931 (W.D. Mich., November 13,

2001) (failure of prison to accommodate prisoner's disability), Gregory v. Administrative Office

· of the Courts of the State of New Jersey, 168 F. Supp. 2d 319,330 (D. N.J. 2001) (hearing

: impaired man seeking accommodations in order to record court proceedings), Doe v. Sylvester,

· 2001 U.S. Dist. LEXIS 14233 (D. DeL, September 11,2001) (mentally impaired woman

: challenging restrictiveness of care), Doe v. Maine Dept. of Human Services, 156 F. Supp. 2d

35,60 (D. Me. 2001) (challenge to Maine's disenfranchisement of persons under guardianship

· by reason of mental disability), Frederick v. Dept. of Public Welfare, 157 F. Supp. 2d 509,531

· (E.D. Pa. 2001) (institutionalized adults challenge segregation at state facilities).

I

I

.. _,_ ..

5 A.A. v. Board of Education, 196 F. Supp. 2d 259 (E.D.N.Y., April 18,2002) (page cites

not indicated in decision), Daigle v. Louisiana Dept. of Social Services, 2002 U.S. Dist. LEXIS

2436 (E. D. La., January 31, 2002), Johnson v. State of Louisiana, 2002 U.S. Dist. LEXIS 1284

(January 18,2002), Fetto v. Sergi, 181 F. Supp. 2d at 57, Parker v. Mich. Dept. of

Corrections, 2001 U.S. Dist. LEXIS 18931 (W.D. Mich., November 13,2001), Gregory v.

I Administrative Office of the Courts of New Jersey, 168 F. Supp. 2d at 327, Doe v. Sylvester,

I 2001 U. S. Dist LEXIS 14233 (D. DeL, September 11,2001), Frederick v. Dept of Public

Welfare, 157 F. Supp. 2d at 531.

6 A.A. v. Board of Education, 196 F. Supp 259, Gregory v. Administrative Office, 168
F. Supp. 2d at 328 - 329, Doe v. Sylvester, 2001 U.S. Dist. LEXIS 14233, Doe v. Maine Dept. of Human Services, 156 F. Supp. 2d 35.

12

, Case 1:01-cv-09551 Document 12 Filed 06/18/2002 Page 13 of 16

pennissible.
"
Section 504 of the Rehabilitation Act Also,.Proscribes Unnecessary Segregation of Persons With Disabilities in the Delivery of Services, and Affords Individuals With Disabilities the Right To Sue to Enjoin Such Segregation.

The parties agree that §504 of the Rehabilitation Act (29 U.S.c. §784(a)) is materially
I
lidentical to and the model for the ADA except that it is limited to programs receiving federal

financial assistance; Def. Mem. P. 13. They further agree that courts apply the same standards
I
lor deciding claims based on Title II of the ADA and §504. Id. Defendant argues, as she did

!'with respect to Title II of the ADA, that unlawful discrimination under §504 does not encompass
I
I
i
!. unjustified segregation in the delivery of services. Def. Mem. p. 11. Although the Rehabilitation

Act does not expressly define unjustified segregation in the delivery of services as a form of

,discrimination, the Attorney General's implementing regulation, 28 CFR §41.51(d), does. As

, described in the Section II, above, this regulation served as a guide to the Olmstead Court for
i
, interpreting Congress' intent in the ADA. Congress confirmed its approval of the Attorney

General's §504 integration regulation in the text ofthe ADA directing the Attorney General to

issue regulations implementing the ADA consistent with those that had been issued for the
I

I

..... .

: Rehabilitation Act. Congress' affirmation of the Rehabilitation Act's regulations is also clear in

i

i

§12202(a) of Title II ofthe ADA which states: "... except as otherwise provided in this

chapter, nothing in this chapter shall be construed to apply a lesser standard that the standards

applied under ... the Rehabilitation Act of 1973 or the regulations issued by Federal agencies

pursuant to such title." Such affirmation by Congress gives regulations the force oflaw.

Bragdon v. Abbott, 524 U.S. 624,631 (1994). See also, Helen L. v. DiDario, 46 F.3d 325, 332

(3d Cir. 1995), and Frederick v. Dep't of Public Welfare, 157 F. Supp.2d 509, 534-5 (E.D. Pa.

13

, Case 1:01-cv-09551 Document 12 Filed 06/18/2002 Page 14 of 16
,POOl).
Defendant's reliance on Alexander Y.,. Choate. 469 U.S. 287, 105 S.Ct. 712, 83 L.Ed.2d
.661 (1985), is not apposite to the issue presented here. The Supreme Court held in Alexander
,that the state's decision to limit hospitalization coverage for Medicaid recipients to 14 days
I
iannually did not violate the Rehabilitation Act even ifit in some degree adversely affected
.persons with severe medical disabilities more than persons without such disabilities. The case
, did not address whether the scope of unlawful discrimination prohibited under the Rehabilitation
; Act includes unjustified segregation in the delivery of services by an entity receiving federal
I I
: funds. Helen L. v. DiDario, 46 F.3d at 335-6.
! Defendant also argues at some length that "the financial obligation Plaintiff seeks to
impose on the states is potentially enormous, and indeed could be ruinons." Def. Mem. pp. 12-
I
I 13. But this argument ignores the actual allegations of Plaintiffs claim--that the in-home nursing
!
: services Eric has been receiving for the past 7 years are as cost-effective as the alternative long-
II
i term institution based care that the Medicaid program would pay for. Defendant must take these
allegations as true for purposes of her Motion. The evidence in this case will show that from
! 1995 until Eric turned 21 in 2000, defendant approved the in-home nursing services that have
allowed Eric to remain at home through IDPA's Medicaid Home and Community-Based waiver program for critically ill children.7 That program covers in-home services as an alternative to the I services these children would otherwise receive in a hospital or skilled pediatric nursing facility
to the extent that the in-home services are as cost-effective as the institutional services. For the
7 In a brief responding to a motion on the pleadings, a plaintiff may include additional narrative describing facts not included in the complaint. Forseth v. Village of Sussex, 199 F.3d 363,368 (7th Cir. 2000).
14

Case 1:01-cv-09551 Document 12 Filed 06/18/2002 Page 15 of 16
five years preceding his 21 st birthday, IDPA approved the extensive in-home skilled nursing Iservices for Eric. A necessary judgment for that approval was that the skilled nursing services
!
were cheaper than the institutional placement. Eric's needs and the associated costs for his in-
I
;
ihome treatment versus in a hospital/institutional setting did not change when he became 21. The ,only change that occurred was IDPA's policy and practice to severely restrict home-based services for adults, forcing them into institutions once they tum 21. As Congress has recognized lin the ADA, including in its confirming approval of the Rehabilitation Act's regulations within the text of the ADA, such institutionalization, no matter how benignly intentioned, has a ,devastating impact on persons with disabilities, depriving them of the incidents of family and , community life integral to achieving the most minimal quality of life persons without disabilities
i
,enjoy. It is this segregation in delivery of services which is prohibited by the Rehabilitation Act
i
, and by Title II of the ADA.
,I
n For the reasons described with respect to plaintiffs Title ADA claim above,
defendant's termination of the appropriate in-home skilled nursing services it had approved for ! Eric for the six years before he turned 21 as a cost-effective alternative to the long term
I
institution based services covered in the Illinois Medicaid program, violates Sec. 504 of the Rehabilitation Act. V. Conclusion
For the foregoing reasons, plaintiff respectfully requests that Defendant's Motion for Judgment on the Pleadings be denied.
15

Case 1:01-cv-09551 Document 12 Filed 06/18/2002 Page 16 of 16
• i
Q1C7YG:S& One of plaintiff s attorneys
I PRAIRIE STATE LEGAL SERVICES, INC.
I
I Eliot Abarbanel i Bernard H. Shapiro . Sarah Megan
I
,350 South Schmale Road ,. Suite 150
Carol Stream; IL 60188 . 630-690-2130
Certificate of Service
I I
I
I The undersigned certifies that on June 18, 2002, she served a copy of the attached Response to . Defendant's Motion for Judgment on the Pleadings, upon:
James O'Connell David Adler Christopher Gange Assistant Attorneys General 160 N. LaSalle Street Suite N-I000 Chicago, IL 60601 FAX No. 312-793-3195
by depositing a copy thereof, enclosed in an envelope, in the United States Mail at Carol Stream, I Illinois, with proper postage prepaid as addressed above, and by transmitting a copy thereof by , facsimile to the facsimile number noted under the respective names above.
~C~~
SUBSCRIBED AND SWORN TO before me this 18th day of June, 2002.
a l14<~.oJ:"" (~
I NOTARY PUBLIC
16

 </s> Case 1 -cv-09551 Document 13 Filed 07109/2002

1 15

1
!
1

1.,
UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

DONNA RADASZEWSKI, Guardian, on behalf )

of Eric Radaszewski,

)

)

Plaintiff,

)

)

vs.

)

)

JACKIE GARNER, Director of Illinois

)

Department of Public Aid,

)

)

Defendant.

)

Civil Action No. 01 C 9551 Judge Darrah

DEFENDANT'S REPLY MEMORANDUM IN SUPPORT OF HER MOTION FOR JUDGMENT ON THE PLEADINGS

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ARGUMENT

1. Count VI: Plaintiffs ADA Claim

A. Plaintiff Cannot Sue IDPA's Director Under Title II ofthe ADA

Plaintiff incorrectly asserts that Defendant requests this Court to repudiate its April 30,

2002 decision that the Eleventh Amendment does not bar her claim under the Americans with

Disabilities Act ("ADA"). Memorandum Opinion and Order, p. 10. Rather, as is patently clear

from Defendant's Memorandum in Support of Her Motion for Judgment on the Pleadings, pA,

Defendant actually contends that Plaintiff cannot, under the terms of Title II of the ADA itself,

sue the Director of the Illinois Department of Public Aid ("IDPA"). Plaintiff names only IDPA's

Director as defendant in this case, although Title II of the ADA only prohibits discrimination in

benefits provided by a "public entity," 42 U.S.C. §12132, which is limited to "any State or local

government" and "any department, agency, special purpose district, or other instrumentality" of

these governments. 42 U.S.c. §12131(l)(A) and (B). In Walker v. Snyder, 213 F.3d 344, 347

;3

Case 1 -cv-09551 Document 13 Filed 07109/2002

2 15

(7th Cir. 2000), an action for injunctive-type relief brought against the Director of the Illinois

Department of Corrections, the Seventh Circuit Court of Appeals held that "the only proper

defendant in a action under [Title II of the ADA] is the public body as an entity.1t See also Lewis
1
v. New Mexico Department of Health, 94 F.Supp.2d 1217, 1232 (D. N.M. 2000) (individual state

officials could not be sued in their official capacities for declaratory and injunctive relief under

Title II of ADA), aff'd on other grounds, 261 F.3d 970 (loth Cir. 2001).

The recent Supreme Court cases cited by Plaintiff do not overrule the Seventh Circuit's

decision in Walker. Verizon Maryland Inc. v. Public Service Commission of Marvlang, -U.S.-,

122 S.Ct. 1753,2002 U.S. LEXIS 3787 (May 20, 2002), merely holds that the Tele-

communications Act of 1996 did not prohibit a suit seeking injunctive relief against state

commissioners in their official capacities and thus has no direct bearing on the present case,

which is brought under Title II of the ADA. In Board of Trustees of the University of Alabama

v, Garrett, - U.S.-, 121 S.Ct. 955 (2000), the Supreme Court held that Title I ofthe ADA does

not abrogate States' Eleventh Amendment immunity from suits for money damages, but, in

dictum contained in a footnote, suggested that Title I could still be enforced by private

individuals in Ex parte Young actions for injunctive relief. -U.S. at -; 121 S.Ct. at 968, fn. 9.

Recognizing that Title II of the ADA, which deals with discrimination in governmental services,

has different remedial provisions from Title I, which deals with employment discrimination and

covers private as well as state employers, the Court expressly limited its decision in Garrett to

Title 1. -U.S. at -; 121 S.Ct. at 960, fn. 1. Although the Supreme Court in Olmstead v. L.C. by

J
1 ,

Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), entertained a Title II suit for

,

injunctive relief brought against state officials, no issue was raised concerning the suability of

1

these officials under Title II and therefore Olmstead is not dispositive ofthe present case.

;

1

-2-

Case 1 -cv-09551 Document 13 Filed 07109/2002

3 15

Plaintiff cites various federal appellate and district court cases for her contention that

official capacity suits for injunctive relief can be maintained under Title II ofthe ADA, but none

of them are from the Seventh Circuit. Respose to Defendant's Motion for Judgment on the

Pleadings ("Plaintiffs Response"), pp. 11-13. Walker remains controlling in this jurisdiction.

Although the District Court in Boudreau v. RYill},2001 WL 840583, *6 (N.D. IlL 2001), app.

pndg. No. 02-1730 (7th Cir.), questioned Walker in light of the dicta in Garrett, it nonetheless

deemed itself bound by the Seventh Circuit's holding in Walker and dismissed a Title II ADA

~

claim brought against various state officers in their official capacities, including IDPA's Director.

.~

I I

This Court must do likewise here, for a federal district court is obliged to follow the law of its

circuit rather than contrary appellate and district court opinions rendered elsewhere. United

States v. Krilich, 178 F.3d 859,861 (7th Cir. 1999); United States v. Glaser, 14 F.3d 1213, 1216

(7th Cir. 1994).

B. There Is No Enforceable Right for Eric to Receive In-Home Private Duty Nursing

In asserting a right to compel IDPA to provide her son with in-home private duty nursing,

Plaintiff emphasizes the reliance placed by the Supreme Court in Olmstead v. L.C. by Zimring,

527 U.S. 581,119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), on Congressional ADA findings and

agency regulations implementing the ADA and the Rehabilitation Act. Plaintiff attempts to

stretch the "qualified" right of deinstitutionalization established in the Olmstead decision, 527

U.S. at 587; 119 S.Ct. at 2181, to cover an entirely different situation, one where the State,

instead of being required to extend existing community based service programs to

institutionalized mentally disabled persons, would be forced to undertake affirmative action by

creating and funding a special new in-home nursing service so that an adult disabled individual

can avoid institutionalization. The parties in Olmstead, however, did not challenge the

-3-

Case 1 -cv-09551 Document 13 Filed 07109/2002

4 15

community integration regulations as outside congressional authorization and the Supreme Court

recited these regulations with the express caveat that it was not determining their validity. 527

U.S. at 592; 119 S.Ct at 2183. Furthermore, in Olmstead Itexisting state programs provided

community-based treatment of the kind for which [plaintiffs] qualified. It 527 U.S. at 595; 119

S.Ct. at 2184. Olmstead did not impose an affirmative action obligation on States to create new

services especially to keep the disabled out of institutions. Rather the Supreme Court specifically

declined to hold that the ADA requires States to provide a certain level of benefits to the disabled

and merely held that ItStates must adhere to the ADA's nondiscrimination requirement with

regard to the services they in fact provide. It (emphasis added) 527 U.S. at 603, fn. 14; 119 S.Ct. at

2188, fn. 14. Under Olmstead, unlawful discrimination occurs only if institutionalized disabled

persons are denied participation in existing alternative community programs.

Defendant has no quarrel with the unexceptionable proposition that the ADA and its

implementing regulations are concerned with the segregation of the disabled. Such concern is

.. ~

consistent with Title II's express prohibition against exclusion of the disabled from receiving

government services. 42 U.S.C. §12132. This statutory antidiscrimination provision, however,

does not require States to create new services for the disabled and, to the extent that Plaintiff

attempts to interpret the ADA's community integration regulation, 28 C.F.R. §35.130(d), as such

an affirmative action mandate, the regulation is contrary to ADA itself and hence unenforceable.

Generalized Congressional findings equating institutional isolation with segregation and a vague

regulatory directive to administer services in the Itmost integrated setting appropriate" to the

, 1
·1

needs of the disabled, 28 C.F.R. §35.130(d), are insufficiently specific to impose an affirmative

action mandate on the state. The findings and regulation do not indicate that instutionalization

I

.~

I

per se is prohibited discrimination or that the state must expend whatever funds are necessary to

.j

-4-

Case 1 -cv-09551 Document 13 Filed 07109/2002

5 15

keep every disabled person who could be maintained at home out of an institution. In his concurrence in Olmstead, Justice Kennedy pointedly distinguished prohibiting discrimination in dispensing existing State medical services from requiring a State without a program in place to create one:
No State has unlimited resources and each must make hard decisions on how much to allocate to treatment of diseases and disabilities.... The judgment, however, is a political one and not within the reach of the statute. Grave constitutional concerns are raised when a federal court is given the authority to review the State's choices in basic matters such as establishing or declining to establish new programs. It is not reasonable to read the ADA to permit court intervention in these decisions. 527 U.S. at 612-13; 119 S.Ct. at 2176. To substantiate that a federal statute creates a particular enforceable right, a plaintiff must demonstrate that the alleged right is not so vague and amorphous that its enforcement strains
Blessing v. Freestone, 520 U.S. 329, 340,117 S.Ct. 1353, 1359, 137 L.Ed.2d 569 (1997). In the present case, Plaintiff has failed to do either. Actually, a legion of cases hold that the ADA does not require States to create new services for the disabled. SeeD~fendant's Memorandum in Support of Her Motion for Judgment on the Pleadings, pp. 7-8. Plaintiff's interpretation of28 C.F.R. §35.130(d) as requiring IDPA to create new in-home nursing services for her son is squarely contrary to the ADA itself and any enforcement of this r~gulation in conflict with its . enabling statute was interdicted by the Supreme Court in Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 1519, 149 L.Ed.2d 517 (2001), which held that regulations cannot prohibit conduct permitted by their enabl~ng statute.
The cases cited by Plaintiff are not on point with the instant case and thus do not uphold her interpretation of28 C.F.R. §35.130(d) as creating an enforceable right to compel rDPA to
-5-

Case 1 -cv-09551 Document 13 Filed 07109/2002

6 15

create new in-home nursing services for her son. Ability Center of Greater Toledo v. City of

Sandusky. 181 F.Supp.2d 797 (N.D. Ohio 2001), dealt with whether Title II and its regulations

established a private cause of action against disparate impact discrimination, not whether they

created a private cause of action to compel public entities to create _new services for the disabled.

Frederick L. v. Department of Public Welfare, 157 F.Supp.2d 509, 536-39 (E.D. Pa. 2001), is

also apparently confined to the question of whether the Rehabilitation Act, the ADA and their

implementing regulations create a private right of action against disparate impact discrimination.

Moreover, Frederick L., like Olmstead itself, only involved the discharge of institutionalized

individuals

from .'.

sta

t

e

'

p
.

sy
-'

c

h .

i
~

a

t

r

i

c

"

h

o

sp,',-it

a

l

s

into
.

existent

state-:-funded

,- .~

.

community-based

programs. 157 F.Supp. at 513. The court in FrederickL. conceded that plaintiffs' ADA claims

1

1

1

would have to be dismissed in accordance with Sandoval ttif[28 C.F.R. §35.130(d)] required

1

action or inaction beyond what is required by the [ADA] itself.tt 157 F.Supp. at 539. Yet action

beyond what is required by t~eADA itself is precisely what is s()u~t by Plaintiff in the present

case, who erroneously interprets 28 C.F.R. §35.130(d) as requiring state and local governments

to create whatever new in-home services are necessary.to keep the disabled out of nursing homes.

C. The ADA Does Not Require IDPA to Provide Eric With In-Home Nursing Care

Plaintiff egregiously overreads the Supreme Court's decision in Olmstead v. L.C. by

Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999), as a general deinstitu-

•

•

••

?

.

'

"

',",

•

•

tionalization mandate which prohibits governments from providing services only in institutional

settings and requires them to create and fund whatever programs are necessary to keep the

disabled out of institutions. Olmstead only involved a situation where disabled individuals were

not being deinstitutionalized into ttexisting state programs [which] provided community based

treatment.tt 527 U.S. at 595; 119 S.Ct. at 2184. The Supreme Court itself, however, cautioned

-6-

Case 1 -cv-09551 Document 13 Filed 07109/2002

7 15

that it was not holding that the ADA imposed a standard of care for whatever medical services

States render or that the ADA requires States to provide a certain level of benefits to the disabled.

527 U.S. at 603, fn. 14; 119 S.Ct. at 2188, fn. 14. Rather the Supreme Court merely held that

"States must adhere to the ADA's nondiscrimination requirement with regard to the services they

in/act provide. II (emphasis added) 527 U.S. at 603, fn. 14; 119 S.Ct. at 2188, fn. 14. Therefore

if a State does not provide community care and offers only institutional services to the disabled,

it does not discriminate against the disabled and need not create new community based services

1

in order to to keep the disabled out of institutions.

1 Plaintiff cites not even a single case in support of her proposition that IDPA must fund

new in-home nursing services just so that her son might not have to receive care in a nursing

home. Defendant, on the other hand, has already cited post-Olmstead cases holding that the

ADA does not contain an affirmative action mandate requiring States to create new services for

the disabled. See Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir. 2000); Rodriguez v. City of

New York, 197 F.3d 611, 618-19 (2d Cir. 1999); Townsend v. Quasim, 163 F.Supp.3d 1281,

1285-87 (W.D. Wash. 2001); Charlie H. v. Whitman, 83 F.Supp.476, 501 (D. N.J. 2000).

Rodriguez and Townsend distinguish Olmstead as inapplicable to situations where new services

are sought for the disabled. The court in Rodriguez deemed Olmstead inapposite to its decision

that New York did not have to provide home saftety monitoring services to disabled Medicaid

recipients because Olmstead addressed only the question of where existent treatment programs

should be provided, not whether community-based treatment must be provided. 197 F.3d at 619.

The court rejected any contention that, under Olmstead, States must provide the disabled with the

opportunity to remain out of institutions. 197 F.3d at 619. In the court's view, Olmstead only

prohibited States from discriminating regarding services actually provided. 197 F.3d at 619. The

-7-

Case 1 -cv-09551 Document 13 Filed 07109/2002

8 1,5

court concluded:

[Plaintiffs] want New York to provide flo new benefit, while Olmstead reaffirms that the ADA does not mandate the provision ofnew benefits. Under '-,,: -'- "-->-"', the ADA, it is not our role to determine what Medicaid benefits New York must provide.... Rather, we must determine whether New York discriminates on. the basis of a mental disability with regard to the benefits it does provide. Because New York does not IItask" safety monitoring as a separate benefit for anyone, it does not violate the ADA by failing to provide this benefit to [plaintiffs].

197 F.3d at 619

Likewise, Olmstead did not prevent the court in Townsend from holding that the ADA

did not require the State to develop and fund community-based services for certain disabled

Medicaid recipients because the issue of whether a State must provide additional services where it does not already offer a community-based program was not presented or addressed in

.. ; .. ;:.~. ,;

Olmstead. 163 F.Supp.2d at 1285-86. Echoing Rodriguez, Town.-send confirmed that Ob.n,stead

only requires States to adhere to the ADA's nondiscrimination requirement with regard to

services already provided. 163 F.Supp.2d at 1287. The court stated:

The ADA mandates that if such a [community-based] program existed, then the medically needy must be placed in the most appropriate integrated setting. Exclusion for such programs would constitute discrimination. However, because Washington state does not provide community-based programs to the medically needy, the integration mandate [contained in 28 C.F.R. §35.130(d)] does not require their creation.

163 F.Supp.2d at 1287. Rodriguez and Townsend are post-Olmstead decisions where plaintiffs __

•

-

....,.

. •• ".

.,.. ",'.". • -,,.. • <. '. ~ 1' ... " .<~,- ~ ~.'

tried to require the State to create new community-based servicesas~ltematives to nursing h~~~"-"'-~:E;::~-;,--

.

.

';'.:- . . . " '. ,., ..,,: .; . :::.;~~; '.~ :.. .. ~,,- ~- .' '< ~~:~;·,~L~:·~·--:~.~~i~::i·-~r~~if~~~;~~

institutionalization. These cases are exactly on point with the present case and should be-':"'C",-,,,,,~~~~}-",:

outcome determinative here. See also Fetto v. Sergi, 181 F.Supp.2d 53, 75-76 (D. Conn. 2001)

(State did not violate ADA and 28 C.F.R. §35.130(d) by providing certain services to disabled

children in residential facilities, but not for children who remained at home).

-8-

Case 1 -cv-09551 Document 13 Filed 07109/2002

9 15

II. Count VII: Plaintiffs Rehabilitation Act Claim

1. There Is No Enforceable Right for Eric to Receive In-Home Private Duty Nursing

In arguing that the ADA contains an affirmative action mandate requiring States to create

new services for the disabled in order to keep them out of nursing homes, Plaintiff relies on the

Rehabilitation Act, 29 U.S.C. §794(a), and Congress' subsequent affirmation, in enacting the

ADA, of a community integration regulation, 28 C.F.R. §4l.5l (d), promulgated to implement the

Rehabilitation Act. Plaintiff, however, fails to demonstrate that either the Rehabilitation Act or

any of its implementing regulations have themselves ever required States to create new services

for the disabled. Plaintiff cannot use the Rehabilitation Act to bootstrap her arguments under the

ADA, given the Supreme Coures pronouncement in Southeastern Community College v. Davis,

j

442 U.S. 397,411,99 S.Ct. 2361, 2369-70, 60 L.Ed.2d 980 (1979), that the Rehabilitation Act

1

~
1

does not impose an affirmative-action obligation on recipients offederal funds. See also Lue v.

I

Moore, 43 F.3d 1203, 1206 (8th Cir. 1994) (Rehabilitation Act does not require invention of new

1
·;1

programs); Parks v. Pavkovic, 753 F.2d 1397, 1407 (7th Cir. 1985) (Rehabilitation Act does not

, I

.,
.~

force States to create special programs for handicapped children); Conner v. Branstad, 839

!

i

F.Supp. 1346, l355-56 (S.D. Iowa 1993) (Rehabilitation Act did not require creation of

community based services). Indeed, the Supreme Court in Davis held that administrative

agencies lacked authority under the Rehabilitation Act to impose an affinnative action obligation

through implementing regulations. 442 U.S. at 411-12,99 S.Ct. at 2370. Therefore, insofar as

Plaintiff interprets 28 C.F.R. §41.51(d) as an affirmative action mandate, it is an unauthorized

and invalid regulation under the Rehabilitation Act. As such, it runs afoul of both Davis and

Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), and confers no

enforceable right to require rDPA to create new in-home nursing services for Eric.

-9-

Case 1:01-cv-09551 Document 13 Filed 07109/2002 Page 10 of 15
The cases cited by Plaintiff are distinguishable fr<?m the vres~n! case because they did not require creation of new community-ba.sed service~ for handicapped individuals. Frederick L. v. Department of Public Welfare, 157 F.Supp.2d 509,513 (E.D. Pa. 2001), only involved the discharge of institutionalized individuals from state psychiatric hospitals into existent statefunded community-based program~. Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995), only involved whether the Rehabilitation Act required the State to provide a nursing home resident with alternative home services under an existent attendant care program. The court noted that plaintiff was not asking the state to alter its requirements for admission to the attendant care program or requesting that the substance ofthe program be altered to accommodate her. 46 F Jd at 337. In the present case, however, this is precisely what Plaintiff requests. Illinois currently
i
only provides in-home private duty nursing to children under 21 years of age under its Early and .~,
;
Periodic Screening, Diagnosis and Treatment Program (,'EPSnr'). 305 ILCS 5/5-19(a). Extension of in-home nursing services to Plaintiffs son, who is an adult over 21 years old, would alter a basic eligibility requirement for the EPSDT program and substantially transform a program for children into one for adults. IDPA would, in both sub~tance and effect, have to create an entirely new in-home nursing program--one that provides services for the entire adult disabled population as well as for children. Such a fundamental alteration in the nature of IDPA's existing EPSDT program is exactly the type of affirmative action that the Supreme Court
held is not required by the Rehabilitation Act. See Southeastern Community College v. Davi~
442 U.S. at 411, 99 S.Ct. at 2369-70. B. The Rehabilitation Act Does Not Require IDPA to Provide Eric With In-Home Nursing Care Plaintiffs argument that the ADA and the Rehabilitation Act require IDPA to provide her
-10~

Case 1:01-cv-09551 Document 13 Filed 07/09/2002 Page 11 of 15

son with in-home private duty nursing actually boils down to nothing more than a contention that

IDPA must provide in-home services to the disabled if such services would be as cost-effective

as alternative institutional care. However, Plaintiffs cost-effectiveness argmnent is not only

rather misleading, it is also completely irrelevant. Plaintiff points out that IDPA approved in-

home services nursing services for Eric until he turned 21 through a Medicaid Home and

Community-Based waiver program for critically ill children. Plaintiff herself, however,

acknowledges that that waiver program "covers in-home services as an alternative to the services

these children would otherwise receive in a hospital or skilledpediatric nursingfacility to the

extent that the in-home services are as cost-effective as the institutional services." (emphasis

added) Plaintiffs Response, p. 14. Since a hospital, in addition to a pediatric nursing facility,

could have been used to set the upper-limit cost-effectiveness of in-home services under the
--1
childhood waiver program, IDPA's approval of in-home nursing services for Eric before he

,

turned 21 did not then necessarily establish that the in-home services were more cost-effective

1

than care in a nursing facility. Nor does IDPA's approval of in-home nursing services for Eric

before he turned 21 necessarily establish that in-home nursing would currently be more cost-

effective than care in an adult nursing facility.

,

Furthermore, Plaintiffs allegation that in-home private duty nursing would be as cost-

i

effective as institutional care is at least partly belied by her own pleadings. Plaintiff also alleges

that, (1) on February 18,2000, Illinois' Office of Rehabilitation Services ("ORS") issued a

decision limiting Eric's eligibility for home services \Ulder an adult waiver program ("HSPII) to a
.. ~
"service cost maximum" of $4,593 per month, and (2) on August 18,2000, IDPA issued an

.. ~

administrative decision affirming the ORS decision. Supplemental Complaint for Injunctive

Relief, pp. 4, 5; ~~26, 30. As IDPA's administrative decision indicates, the service care

-11-

Case 1:01-cv-09551 Document 13 Filed 07109/2002 Page 12 of 15
maximum for the HSP Medicaid Waiver Program is based on an amount no greater than would be expended to maintain the recipient in a nursing home. IDPA Final Administrative Decision, p. 2, ~D, attached hereto as Exhibit A.I Yet the basic gravamen of Plaintiffs whole Complaint in the present case is that the $4,593 service cost maximum established for Eric under the HSP program, an amount based on the cost of nursing home care, is inadequate to pay for the amount of in-home private duty nursing he needs. This claim, however, contradicts any allegation Plaintiff could make that in-home private duty nursing is as cost-effective as nursing home care.
Finally, even assuming as true, for purposes of the instant Motion for Judgment on the Pleadings, Plaintiffs allegation that in-home care is at least as cost-effective as treatment Eric would receive in an institution, this cost-effectiveness argument is not sufficient to state an actionable claim under either the ADA or the Rehabilitation Act. In her initial Memorandum and in this Memorandum, Defendant has cited numerous cases holding that neither the ADA nor the Rehabilitation Act require the government to create new services for the disabled. Not only has Plaintiff has failed to cite any cases holding that the government must create new services for the disabled, she has also failed to cite a single case imposing such an affirmative action obligation on the government even when the alternative services whose creation is sought would be less expensive than existent institutional services. As regards,th~~~~~tion of new services for th,e . . " ' " disabled, neither the ADA nor the Rehabilitation Act override State discretion to select the particular services covered in its Medicaid program. Emphasizing the "substantial discretion" conferred on the states by the Medicaid Act to choose the precise coverage of their programs, the
I On a motion for judgment on the pleadings, a court may consider documents incorporated by reference into the pleadings. United States v. Woog,925 F.2d 1580, 1582 (7!h Cir. 1991).
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Case 1:01-cv-09551 Document 13 Filed 07/09/2002 Page 13 of 15
Supreme Court in Alexander v. Choate, 469 U.S. 287, 303, 105 S.Ct. 712, 721, 83 L.Ed.2d 712 (1985), held that the Rehabilitation Act did not require a State to expand its Medicaid benefits on behalf of the handicapped. Even the statutory rights of the handicapped to be integrated into society did not require the State to make "fundamental" or "substantial" modifications to its Medicaid program in order to accommodate the handicapped. 469 U.S. at 300; 105 S.Ct. at 720.
Under the Medicaid Act, a State does not have to choose the least expensive options in selecting covered services. See e.g. Beal v. Doe, 432 U.S. 438, 445, 97 S.Ct. 2366,2371,53 L.Ed.2d 464 (I977) (State did not have to include nontherapeutic abortions in Medicaid coverage even if abortion was generally a less expensive medical procedure than childbirth). The ADA and Rehabilitation Act do not curtail State discretion in selecting Medicaid coverage because neither statute contains any proviso that the State must create entirely new or additional services for the disabled when such services would be cheaper than existing programs. The court in Townsend v. Quasim, 163 F.Supp.2d 1281 (W.D. Wash. 2001), specifically rejected exactly the same cost-effectiveness argument raised by Plaintiff in the present case. Plaintiffs in Quasim, who contended that the ADA's integration mandate required the State to provide home and community-based programs for certain disabled Medicaid recipients, also alleged that alternative community-based residences "would not generate direct costs exceeding the long-term care services now provided to the medically needy in nursing facilities." 163 F.Supp. at 1287. Although the court conceded that plaintiffs had made a "strong policy argument," this costeffectiveness argument did not alter the court's holding that the ADA's integration mandate did not require a State to develop and fund a new community-based program for medically needy disabled Medicaid recipients. 163 F.Supp.2d at 1286, 1287. Plaintiffs' cost-effectiveness policy argument had to be addressed to the agency administering the State's Medicaid program rather
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Case 1:01-cv-09551
'.

Document 13

Filed 07/09/2002

Page 14 of 15

than to the courts. 163 F.Supp.2d at 1287. As the court observed in Skandalis v. Rowe, 14 FJd

173, 182 (2d Cir. 1994), "Determinations of cost-effectiveness should be left to the expertise of

the state and federal agencies that are responsible for administering the Medicaid program, as

.. ~

they bear political responsibility for its fairness and cost, and will be paying the bill." Because

, i

Plaintiffs allegations regarding the supposed cost-effectiveness ofin-home private duty nursing

,.~
,

•.~

raise merely a political policy argument without any legal force, Plaintiff has failed to state a

i

claim for which relief can be granted under either the ADA or Rehabilitation Act. Therefore

judgment on the pleadings must be entered in Defendant's favor in this case.

CONCLUSION

THEREFORE, for the reasons stated in her intitial Memorandum and in this

;1

Memorandum, Defendant respectfully requests this Court to grant her Motion for Judgment on

1
1

the Pleadings and enter a judgment in her favor on Counts VI and VII of Plaintiffs Supplemental

Complaint for Injunctive Relief.

Respectfully submitted,

James E. Ryan,

Attorney General ofIllinois

James C. O'Connell

I

.~

David Adler

i

Christopher S. Gange

. /,n;","
By: ~Lc

! I

Assistant Attorneys General

(Of Counsel)

i

160 North LaSalle Street Suite N-I000

j

Chicago, Illinois 60601

,

(312) 793-2380

1
..I i

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Case 1:01-cv-09551 Document 13 Filed 07109/2002 Page 15 of 15
ase

 </s> Case 1:01-cv-09551 Document 134-15 Filed 08/23/2007 Page 1 of 8
Response to the Supplemental Expert Report of Samuel S. Flint,
Ph.D. June 8, 2007
Prepared by: Matthew W. Werner
July 3, 2007
RadaszeH)ski v. Maral11
United States District Court for the Northern District of Illinois Civil No. Ol-CV-9551
EXHIBIT 1 4

Case 1:01-cv-09551 Document 134-15 Filed 08/23/2007 Page 2 of 8
Response to Flint's June 8, 2007 Supplemental Repoli
The purpose ofthis report is 10 re.'pond TO the June 8, 2007 supplemental report of
Samuel s. Flim, which is a critique of my analysis provided in the C2se ofRadaszewski Y.
Maram.11r. Flim's report is broken imo t,ve> diSTinCT sections, "Critique of the 'VI'emer Cost Projection" and "Critique ofthe \Yerner Amicipated Health Care System Impacts". I will respond in the same manner 10 simplif) references to Mr. Flint's report.
Response to section titled "Critique of the \\'erner Cost Projection"
Medical Necessitv
Mr. Flint's first issue concerns medical necessity. He describes it 2S, "the most fundamental methodological processes required /:,r a reasonable health care cost projection.:- He then stmes thm the COS1 proje::tion from my report "complete): ignores lTIedical necessity:: because of the assumption made that participants could shift fTom a nursing hOlllt setting to a community-basee serring.
The comparison of nursing home residents to 24 hours of registered nurse (R-'J) care is made because that is the amount of care being requested for Eric Radaszewski, which is beyond what has been authorized under the federally appruved waiver prO~'Tan1 commonly referred to as the Home Services Program (HSP). The premise of my analysis is that Eric Radszewski is requesting seryices not only beyond the current program but also that 24 hours ofR-'I care is not medical necessar\,. Mr. Flint's premise is that the request of Eric Radaszweski is medically nccessary.
Part of the dispute between the plaintiffs and defendants in this case is whether or not 24 hours ofR-'I care for Eric Radaszweski is medically necessary. That is an issue of fact that is in the Court's pun'iew and beyond the scope of my expertise or l\1r. Flint's. Until the Coun rules on this disputed fact, it is completely appropriate for my analysis to be based on the premise held by the State, that Eric Radaszewski is requesting care not unly beyond the scope ofthe federally approved HSP but also beyond medical necessity.
Under the premise that Eric Radaszewski is seeking care that is not medically n~cessary Then the logical conclusion is that granting his request to receive such care seTS a precedent for other beneficiaries to request and receive non-medically ne:::essary care also. Ivlr. Flint's criticism that my analysis "completeiy ignores medical Decessity" is based solely on a point of disputed bet on which the Court has nol ruled. Therefore. il cannoi be considered either a valid or rekya.m criticism uf lny a:12.lysls.
Neither lvlr. Flint nor I are qualified to determine the medical needs of Eric Radaszewski. '\1r. Flint is appwpriaiely allowed to consider the premise put fonvard by the plaintiffs as true, just as I am allowed to consider the defendaut's premise as being True. It is sin1pl} inappropriate for Mr. Flint 10 use a disputed fact. On which he lacks the expertise to opine, to discredit an a.TJ.alysis.
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Case 1:01-cv-09551 Document 134-15 Filed 08/23/2007 Page 3 of 8
Even though hfr. Flinfs criticism on the mane:- is neither valid nor re1eY3.Dl because of his use of disputed fact as the basis of his criticism, The analysis still holds strong even if one considers the premise ofthe plain-::i=rs to be true, that Eric Radszewski is requeSIL.lg care that is medically necessar)'.
For the sake of argument the question becomes: wouie other individuals be able to recelve increased sen·jces ifEric Radaszewski received 24 hours ofR..~T care daily and thaT care \-vas delerrniIlt;d to be medically necessa:-y for him? 1v1r. Flint assumes That answer is no, ho\vever, I rhink it is answered yes.
Medical need of 24 hours of daily R.c"" care does noT mean that the nurse is perfonming
medical duties every single second of every minute during the 24 hout period. The patient simply needs to have immediate access (0 a nurse at all times for their medical needs to be mel. Patients in nursing homes have access to nursing care 24 hours a day even though each patient needs direct medical care to a varying degree. Home and Community Based Service (HCBS) waivers like the HSP are required under federal law (0 demonstrate cost-neutrality. In other words, the sef\·ices proy·ided by HSP cannOl exceed the cost of providing institutional care.
Even if 24 hours ofR.c'\ care is medically necessary for Eric Radaszewsh that amount would exceed the cost-neutrality test for the HSP program. In the analysis it shows that the daily cost of care for Eric is $672 per day which far exceeds the average of $74 per day for nursing horne care and the average 0[$255 per day for an indiyidual in the exceptional care pro:O'Tam on a ventilator, the highest cost group under the exceptional care program. Just 3 he'urs of nursing care at $28 per hour (S672 ':::'4 hours) would exceed the cost-neutrality based on a nursing home setting. The limit would be 9 hours for the exceptional care person on a ventilator.
Ifmedical need is determined TO O\'erride the cost-neutrality limits established under the federally approved waiver for the HSP, then it would clearly necessiTate a Stale only program sef\"ing indi\'iduals "l'ith medical needs that can be met in the commuuity with a service package that exceeds federal cost-neutrality requirements. The new program limit would be based on the highest level of care offered, in this case 24 hours ofRt\ care, which is effectively no limit. \\'i(hout a cost-neutrality limit in place, then every single person in a nursing home would be eligible for home and community based services. The limiting factors become the availabiliTY of community support, financial support for nonmedical needs, and adequate housing.
~ursing hon1c residenTs have yarying dEgrees of need for nursing care. A.ll of them !TIay not need access for a full 24 hours but wiThout cost-neutrality as a limit and medical need having a limiT set at 24 hour::; a day, every nursing home resident could rcceiYe nursing care in a community setting. It is more than reasonable to think that many indiyiduals might be interested in such a prognrn if offered. Ever ifThev· didn't need a full 24 hours. many probabl~y ~?\"ould need in excess of the 3 or 9 hours currently limiting the progranl \·ia cost-neutrality.
2 of!

Case 1:01-cv-09551 Document 134-15 Filed 08/23/2007 Page 4 of 8
As staTed in m}' analysis, my p:.rrpQse was to identii)-" the potential n1axinJUD1 impact of such a change. A true max.imum ·wilh·Ju:: any other considerations would be }OOS/~ of the nursing horne residents. At no point do I ever suggest that I 00% of nursing horne residentS will seek such services. Instead I attempt to put a more practical perspectiw 011 the analysis by estimating the number of individuals that would transition 10 the community iflimits on cost-neutrality were eliminated.
The 10% Estimate and Data Critique
Me. Flint states in the second paragraph of his repon that my repon "proyides extremel, misleading data", however .Mr. Flint never in any pan of his critique challenges the validity of the numerical data used for the calculation. Instead Mr. Flint challenges the assumptions used in the calculations, mOST notably the assumption of a I 0% shift of nursing home residents to the community and a 10% shift ofHSP panicipams to a higher lcvel of care.
Me. Flint states, 'The 'Verner estimalC makes no pretense of actuarial sophisticatioG. ,. The word pretense is defined as, "insincere or feigned behavior: something done or a WO) of behaving that is not genuine, but is intended to deceive somebody'" I agree. At no point do I pretend that my analysis is meant to be a highly technical acmarial modeL Although I have used actuarial techniques in the past, the analysis for this case was a simple mathematical approach to identif)' the potential maximum impact, which could also be characterized as a worsi-case scenario. A cOll1plex analysis is not necessarily more accurate than a simple ana1ysis nor is a simple analysis invalid becRnse of its simplicirv. \1r. Flint's report appears to imply such but does not provide support for that point.
The one assumption that Mr. Flint refers to repeatedly is what he calls the "arbitrary 10%". Again, the purpose of my analysis was to simply idenlify the potential max.imum impact. The maxirnwn population is 100% since everyone's medical needs could be met within the maximum amount allowed, which would be 24 hours a day. Because of the multiple variables that affect such a shift: numher of hours each individual needs, does the person have someplace to live, is there family support, does the person have adequate finances, ct cetera; ir is reasonable and logical that not everyone ""ill he abk to shift mtd not everyone "yill need the ma.ximum amount of hours.
For the maximum irnpaC"l TO be reasonable, i-c need~d to be adjusted. I calculated four possible percents of pOTmlation shift, 1S/(I, 10%\ 20Cj-o, and 30':<). The val ue of 1~/c gave The analysis the flexibility to calculate "arious popUlation shift l~yels by simply taicing the value for J% and multiplying it by the chosen leveL I used my professional judgment ano e>;periencc to decide that it W2S highly uCllikcly fo~ m8re iclJ.an 30% of the populati,ln tD shift. In general. a small number of people generate a large portior: ofthc healthcare costs, frequently referred to as the 80-20 mle. Therefore a small portion of the nursirlg
1 Definition #1 from IvlSl'-.T Encanc. anEnt dic::-iona.,,)hup://encana.msn.coITJencnctiearures/dictionary;'dicTiona..ryl1ame.2.Spx
30f7

Case 1:01-cv-09551 Document 134-15 Filed 08/23/2007 Page 5 of 8
home population is liKely 10 neec nursing care in amounIS greater than Ihe .3 or 9 hours daily that exceed cost-neutrality. For discussion purposes it was reasonable to use a \"alue of 10% to illustrate ho,,>; 2. "ery small number of people could generate 2. significant amount of increased COSIS.
At no point do I assert in my analysis thal I O~/O clIhe population \\:ould shift te· receiving 24 hours ofR.1\" care in the communhy. I never used such absolute terms becal!se the analysis ,,\'as nm meanI to determine an absolute conclusion. 1t was only intended to gil!e a reasonable estimate ofIhe maximum impac.. thaI could potentially occur to pro\'ide understanding as to how it does nm take a very large population shif-: IC' become very expensive. I aclmowledge lhat fmiher analysis would need to be completed 10 a,rive at a more precise number.
Iv1r. Flint criticizes the 10% bUlncver opines on what number is appropriate 10 establish the maximum impact. 1v1r. Flim does offer (he suggestion of using the Minimum Data Set (MDS) to make the number more precise. The }'IDS does have data that could be used to further defme a populmion but it does not give a complete picmre. The State and nursing home providers did agree to a reimbursement system based on the MDS bUl data appropriate to setting reimbursement is still incomplete. Again, the purpose of my analysis was to identify the potentialmaximnm impact and that could be reasonably accomplished without a detailed review of MDS records. That approach is consistent with the types of quick legislative and policy analyses performed when complete data is not readily accessible or unavailable. Mr. Flint does identify the MDS as a data source but fails (0 offer a suggestion how thai data could be used in perfonning an analysis.
1'v11'. Flint' 5 other approach to critic.izjng my analysis is to compare it 10 the analysis of 1\1[. .Tvfenenburg. Specifically, 1\1r. Flint COTl1pareS the results of our t\vo analyses and comments on the variance between our IV-/O conclusions. Basically the argument of !\1r. Flint is that since my numerical conclusion is so much higher tban Mr. Menenburg' s it can't possible be reasonable. Clearly since my analysis is intended to represent the upper bound of costS, my analysis has to be higher than Mr. Menenburg's attempt to more precisely identify the costs. Mr. Flint simply uses the significant variance in these two analyses to use shock rather than fact to dispute the results of the analysis.
Mr. Flint concludes this section of his analysis by stating, "In my opinion this potential exposure to the Slare flies in the face of COlDmon sense~ v.,Thich is not too surprising give(n) its conlple1e lack of scientific rigor" It appears that he is arguing that scientific rigor is necessary for COmmon sen~;e. The definition of common sense :=t]one is suftlcient to show the invalidity of this concluding statement. Common sense is defined "s, "good
.i udgment: sonnd practical judgment derived from eXDcrience rather than
studv"(emphasis added). My eleven years of experience performing analv·ses conceming policy and fiscal issues affecting the S::ate of Illinois :G1edicaid progr3lTl h2.s provided me with a great deal of experience and knowledge. Such experience and knowkdge is inyaluable in performing analyses like this one and pwyides a practical approach railter than a theoretical one. The lack ofyalidity in Mr. flinT'S concluding statement is appropriale for a critique that is heay)' 0.:1 negatiye -words and arguments based em
40f7

Case 1:01-cv-09551 Document 134-15 Filed 08/23/2007 Page 6 of 8
disputed facts. TI1e cost projection in this 2-ll.aJysis \,,"as intended 10 be a simple yei: \,2..:id approach to identify a m~ximurD impa:.L l\i!'. Flint neyer chall~nges the c2-Jculations, ani).' the assumptions, and still doesn'1 offer the Cour;: a!:;.- opinion 2.S 10 v;hat the assumptions should be or why. ~jy. Fliu! fails to provide auything indicating that the "arbitraT) 10%" is grossly unreasonable or impossible. Illstead he substirutes pontifications of academic ru-rogance.
Response to section titled "Critique of the 'Verner Anticipated Health System Impacts"
Impacts on the Illinois Nursin!,: Labor Force
Mr. Flint cites the quadrennial report from the U.S. Department of Health and Human Seryices (DHHS) Health Resources and Services Administration (HRSAI, The Regis~cred )Vurse Population: ]v'arional Sample Survey of Registered .Nurses. Alar(;h 2004." Comrary to Mr. Flint' 5 statement I did not ignore this intcmnation. 1 used other documents to illustrate the commonly held opinion that there is a shortage of nurses. Me. Flint uses this preliminary report to challenge that view but the final repmi is much more comprehensive.
tIL Flint flrst refers to the increase in wages as reported in Chart 7 ofthe preliminary report he utilized. The report does show that salary increase for RN's once adjusted for inflation increased less than 1% for the period between 1992 aud 2000 3 However, I find no reference or statement in that sec1ion to support 1v1r. Flinfs assertion that Lh~re \vas a nursing shortage in that period. The final report does state that there was a.. "perceived nursing shortage from 1988 to 1992,·4 In that time frame inflation-adjusted salaries for nursing increased by 11.2 percent aud rhe report states that it indicates a, "significant eeouomic demaud for R.Ns over this period.'" Neither version ofthe report supports Mr. Flint's characterization that the 14% increase in inflation-adjusted wages from 2000 to 2004 was "a 'catch up' from the eight year period of stagnant compensation growth""
Mr. Flint argues that Illinois is better offrhan Other states and implies that there is not a shortage or a need to be concerned ahout wage inflation. HRSA however, published another report that is vcr\, useful titled. What is Behind HRSA 's Projected Supply, Demand, and Shortage ofRegiswred ~Yurses. This report details the design of a modd to project the supply of nurses and another to project the demand for nurses. This repOJi indicates that in 2005 lhaI the supply uf nurs-cs (mly I11el 909-0 of th~: demanJ \\'ith a projection that if the currenttrends do not change then only 64% of demand will be met
: For clarification it should Denoted tharthe P,elimin:rry Findings ofiliat repon where actually proyided \vith 1\'.1r. Flint's analysis. I will ruse be refe:-ring to t.1e final report that \\'23 issued Idarch 2006. 'lLRSA Preliminary Finciings, p2.ge 10 ~ HRSA Final Report,. page 2] , [bid.
:: of7

Case 1:01-cv-09551 Document 134-15 Filed 08/23/2007 Page 7 of 8
b)" 2020. 6 Illinois is better offihaD the nation as a \YDo1e \yith 9S~~O of demand met in 2005 and 71 ~o of demand met in 2020~, ho\vever, t.~at assumes current t'ends so an increase in demand of any magnimde will only e:xacerbate the problem. The repon further indicates that an annua1 increase in R:.'\T salaries of:; %) would be necessary 10 keep pace v.:ith the f,'Tow1h in demand but demand would still be in excess of supply. S
Mr. Flint st8leS that. "Illinois has 24.3 13 licensed ~'1s who are currently not employed", however. he should have completed the sentence bv adding "in nursing".o \\·ithout those words it incorrectly implies that Illinois has a lot of unemployed nurses looking for work. Instead only 4.1 % of nurses not employed in nursing listed "Difficult to find a'iucsing job" as a reason they aren:t working in nursinf:.l: The report indicates that the ilnplication of Mr. Flint's statement is false.
Mr. Flint then reviews the number of employed nurses per 100,000 popUlaTions to illustrate that Illinois is better off than other staws. I agree with his comparison that Illinois has more employed nurses per 100. 000 people than the national average. However. having more employed nurses thar. the national average does not lucan Illinois has enough nurses. ~4.s discussed ~lbovc: Illinois has a smaller shortage of nurses now than the national average and is projected lO be bener offthan the national average in 2020, but a shortage is still a shortage.
In short, the reports fTom HRS.I\ indicate that there is a current shortage of nurses in Illinois and nation wide that is projected to get worse if there are no changes made in the factors driving supply and demand. Moving individuals from con!n·egate care setting into indiy·idual setlings will increase the demand for nurses in lllinois. \\·age inflation is likelv in an environment where demand eXCeeds supply.
Potential Shortage of S.NF beds
I agree with Mr. Flim that Illinois in aggregate has more nursing home beds than currently needed. My analysis neyer asserted that there would be a statewide shortage of nursing home beds. Instead my point was that in some areas ofthe state which may only have One nursing home might find it difficult to offer sen·iccs if occupancy drops due to individuals moy·ing out. J\0 matter what there will alw3\'s be some indiyiduals who will need to reside in a nursing horne. In femme areas access could become an issue ifsmall nursing homes no longer are able to maintain a minimum nUD1ber of residents. In those cases people may be forced to relocate frorn their local areas to larger Jreas to find the care they need. Large urban areas can easily handle such pressures and likely do a better job of sen·ir:.g palients but more ruru] a~eas will :;ee their choices disappear. 1',,1r. Flint's critique only addresses this issue on a macro leveL whieh hides the ptoblem that could occur in sD1aller communities.
f HRSA Projections; page 27 exhibit 24. 7 HRSA Projections, page 32-53 exhibit A- 3. o F..RSA ProjecTions, D8ue 11.
~ h'RSA PrelimiTIaI}; Fi;ciings, page; 9; ~--=RS:~'~ Fir.al RepJr~ Table 51 page .t...-:53
]c1-IRSA FinalRepo~ Ta~le 40 page A-41

Case 1:01-cv-09551 Document 134-15 Filed 08/23/2007 Page 8 of 8
Unaddressed Impacts
Mr. Flim concludes his report by indica:ing ihat savings from increased home-based care should be also considered. Savings can be attained ifTh" rules in the currem HSP are adhered to and individuals receive service plans that are cost-neutral compare 10 an institutional level of care. Right now that is achieved hy mixing care from R>'!s with less expensive personal assistants. iUlYThing in excess of3 hours ofR-"J care for a nonexceptional care nursing home rcsidem or 9 hours for someone comparahle 10 an exceptional level of care would exceed the cost-neutrality limits. Without those limits ihe HSP prograru cannot save money. Since individuals with needs helow the cost-neutralit) level already have access to the HSP prograru it is unlikely many will move into ihe HSP. Me. Flint's critique fails to offer any type of data or eSTimates as to how savings can he achieved by providing scrTices in excess of the current cost-neutrality limits in the federally approved HSP.
Conclusion
Mr. Flint's report uses inflammatory language to cast aspersions on the analysis performed rather Than provide valid criticism or data to contradict the numeric results of the analysis. His critique fails to provide more than a superficial review. My analysis provides a simply, logicaL and reasonable estimate ofthe pOlential maximum impact to the State if the current program limits ofthe HSP arc effectively removed by providing a service package tc' Eric Radasze\\'ski in excess of the cost-neutrality constrainls as required under the waiver approved by the federal government.
Reports Referenced
Health Resources and Seri'iccs Administration (HRSA), U.S. Department of Health and Human Services (DHHS) The RegiSTered Nurse Popularion: National Sample Survey of Registered Nurses. March 2004 Prelimina7Y Findings ---. The Registered lYurse Population: J\~a[ional Sarnple SurvcJ' ofRcgisrcrcd ~Vurses} Afarch :;004 Prc!iminJI}, Findings (Final Repor~) (I\1arch 20(7) as (lc.cessed on June 25. 2007 http://bhpr .hrsa.goY/healthv/orkforc e/rnsur\"ey04 / ---. JJ71Ul is Behind lIRSA 's Frojectcd Supply, Demand, and Shortage ofRegfslercd Nurses as accessed on June 25, 2007 http://bhpr.hr5a. go'\-/hcalth\vorkfDrce /reports/nurs ing ;rnb~hlnd;Jr:::~j eCIi O~ s,:i nd ~~. h~m
_ c~ / or I

 </s> Case 1:01-cv-09551 Document 127 Filed 08/23/07 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI,

)

Guardian, on behalf of Eric Radaszewski, )

)

Plaintiff,

)

)

vs.

)

)

BARRY MARAM,

)

)

Director, Illinois Department of

)

Healthcare and Family Services,

)

)

Defendant.

)

No. 01 C 9551 Judge John W. Darrah

Plaintiff’s Motion in Limine to Limit Testimony of Barbara Ginder

Plaintiff Donna Radaszewski, by counsel Prairie State Legal Services, Inc., moves to limit

the testimony of defendant’s witness Barbara Ginder, to exclude testimony constituting legal

opinions. In support of this Motion, plaintiff states:

1. Defendant has disclosed that he expects to call Barbara Ginder as an opinion witness.

2. Ms. Ginder is Bureau Chief of the Bureau of Interagency Coordination for the Illinois

Department of Healthcare and Family Services (HFS). Ms. Ginder has a professional

background as a registered nurse. She is not a lawyer. (Exhibit A, pages 1-9 of Ginder

deposition in Sidell v. Maram).

3. In Defendant’s Amended Disclosure of Expert and Opinion Testimony, defendant

stated that Ms. Ginder’s testimony will relate to reasonable accommodation of the Plaintiff and

that her opinions “were disclosed in Defendant’s Amended Responses to Plaintiff’s First Set of

1

Case 1:01-cv-09551 Document 127 Filed 08/23/07 Page 2 of 7
Interrogatories, Numbers 1,2,3,4,5A.1.a - 5A.1.d, 5A.2.i - 5A.2.v, 5A.2.b.i, 5B and 5C and Defendant’s Third Amended Responses to Plaintiff’s First Set of Interrogatories, Nos. 5.A(1) (2)(b)(ii)(A)(1-6).” (Exhibit B, Defendant’s Amended Disclosure of Expert and Opinion Testimony). Defendant’s Third Amended Response to Plaintiff’s First Set of Interrogatories, No. 5.A(1) - (2)(b)(ii)(A)(1-6) was subsequently stricken by the court’s Order of May 10, 2007, as clarified by the Parties’ Agreed Order of June 7, 2007.
4. Several assertions stated in Defendant’s Amended Responses to Plaintiff’s First Set of Interrogatories with respect Interrogatories 5 and 2 include multiple legal conclusions going to defendant’s defenses. These assertions read like a legal brief, with statutory and case citation, rather than opinion testimony concerning facts. (Exhibit C, Defendant’s First Amended Response to Plaintiff’s First Set of Interrogatories, Responses 2 and 5).
5. Testimony as to legal conclusions going to the outcome of the case is inadmissible. Good Shepherd Manor Foundation Inc., v. City of Momence, 323 F.3d 557, 564 (7th Circ. 2003). “As a result, courts will not admit testimony on purely legal matters and comprised solely of legal conclusions.” In re Ocean Bank, 481 F.Supp.2d 892, 898 (N.D. Ill. 2007).
6. The opinions attributed to Ms Ginder in the Interrogatories referenced above that constitute legal conclusions on purely legal matters include defendant’s responses to plaintiff’s Interrogatories Nos. 5 and 2, are quoted below:
Interrogatory No. 5: Is it your contention that the relief plaintiff seeks on behalf of her son cannot be reasonably accommodated? If so, please provide the following: A. Please describe in detail each and every basis for your denial and each and every fact upon which you rely in making this denial. B. For each such basis and/or fact listed in response to Interrogatory No. 5(A),
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please state the name, telephone number and address of each person having information concerning such basis and/or fact. C. For each such basis and/or fact listed in response to Interrogatory No. 5(A), please identify each document that relates to such basis and/ or fact.
Defendant’s Amended Response to Interrogatory No. 5:
5A. Defendant incorporates his objections as stated in his original amended response to this Interrogatory and further states:
5.A.1. Plaintiff, in her complaint, has not stated the relief sought with any specificity. The prayer for relief merely requests an injunction “enjoining Defendant from failing to afford Eric continued nursing services at home rather than in an institution.” To the extent that Eric Radaszewski participated in the HSP and in fact received skilled nursing services in his home under the HSP with an exceptional care rate, he was reasonably accommodated in the following particulars:
5.A.1.a. Eric Radaszewski was not excluded from participation in the Home Services Program by reason of his disability or by any act or omission of Defendant....
5.A.1.b. Defendant reasonably accommodated Eric Radaszewski in the Home Services Program by extending an exceptional care rate to him. The Adult Disabled Waiver that governs the operation of the Home Services Program expressly provides that the Defendant will not expend any more money on services to individuals in the waiver than would be incurred if these persons were residing in nursing facilities. ...
5.1.c. State law at 89 Ill.Admin.Code §682.520(c), authorizes the Illinois Department of Human Services to extend a rate up to the exceptional care rate set by the Defendant for the nursing facilities participating in the Exceptional Care Program, to a participant in the Home Services Program whose medical condition corresponds to one of the conditions for which HFS would pay an exceptional care rate tif that person were in the nursing home. ...
5.2. If the reasonable accommodation that Plaintiff seeks is 24 hours per day inhome one-on-one private duty registered nursing services, as the complaint suggests, then that relief would not constitute a reasonable accommodation because under the law as set forth in Alexander v. Choate, 469 U.S. 287 (1985) and Wisconsin Community Services, Inc. V. City of Milwaukee, 465 F.3d 737 (7th Cir. 2006), the reasonable accommodation of 24 hours per day in-home one-onone private duty registered nursing services is not necessary, reasonable or
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grounded in any independent basis in Title II of the ADA.”
5.2.a. The reasonable accommodation Eric Radaszewski seeks is not necessary. Neither the Rehabilitation Act nor the Americans with Disabilities Act require Defendant to modify any of its programs for Eric Radasewski because the benefits her seeks, i.e., 24 hours per day in-home private duty registered nursing services, were not denied to him by reason of his disabilities. Eric Radaszewski does not qualify for 24 hours per day of in-home private duty nursing because of qualities that Eric Radaszewski shares with all other Medicaid recipients and applicants. Rather, all the factors set forth below are qualities that Eric Radaszewski shares with all Medicaid recipients and applicants, as follows: ...
5.2.a.ii. Private duty nursing services are an optional service under federal Medicaid law. 42 U.S.C. §§1396a(a)(10)(A), 1396d(a)(8). Private duty nursing services are not covered under Illinois’ Title XIX State Medicaid Plan. No Medicaid-eligible person qualifies to receive such services at any situs. Whether the State of Illinois covers an “optional” Medicaid services is a policy judgment committed to the discretion of State officials and for which there is no right of judicial review. Daimler-Chrysler, Id. at 1863 (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (opinion of Kennedy, J.). ...
5.2.a.iii. No participant in the Home Services Program qualifies to receive private duty nursing services because they are not a part of the Adult Disabled Waiver of Illinois’ Title XIX State Medicaid Plan.
5.2.a.iv. Eric Radaszewski, an individual over the age of 21, is no longer eligible for EPSDT, 42 U.S.C. §§ 1396a(a)(43); 1396d(r) and, consequently, may not now receive services that are not covered under the State’s Medicaid Plan.
5.2.a.vi. To the extent HFS’s clinical professionals were reviewing plans of care for Eric before he turned 21 and participated in the MFTD Waiver, they were not reviewing medical need for “waiver” services and they were not the State’s “treatment professionals” making any determination whether Eric could live in the community with proper supports. Cf. Olmstead v. L.C., 527 U.S. 581, 602-603, 119 S.Ct. 2176, 2188 (1999). Rather, HFS clinical experts were entitled to make an independent determination for the purposes of the EPSDT program that services prescribed for Eric that were not covered under Illinois’ Title XIX Medicaid plan were medically necessary. Miller by Miller v. Whitburn, 10 F.3d 1315 (7th Cir. 1993)
5.2.b. The accommodation Eric Radaszewski seeks is not reasonable. The court need not reach this issue because it must conclude that the
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accommodation/modification Eric Radaszewski seeks is not necessary.
5.2.b.i. If the court were to reach the issue of reasonableness, it would conclude that the accommodation/modification sought is not reasonable. First, the modification Plaintiffs seeks to the Home Services Program is not necessary to avoid discrimination to Eric Radaszewski on the basis of disability. 42 U.S.C. § 12131(2); 28 C.F.R.§35.130(b)(7). Defendant adopts all the facts and arguments set forth in his Amended Answer No. 5(A)(2)(a) as his answer here.
5.2.b.ii. Second, Defendant also contends that the accommodation/modification Eric Radaszewski seeks would fundamentally alter the nature of the Home Services Program. If Defendant were to provide a benefit in excess of existing home and community waiver benefit levels, Defendant would be required to extend the same benefit to all other persons. The benefits would have to be extended to all participants in the Home Services Program (and, presumably, all other programs operated under the umbrella of the Home and Community-Based Services Waiver), and to certain current residents of nursing facilities. [These are legal conclusions as to what the law would require if reduction in Eric’s Radaszewski’s nursing services were to be enjoined].
Plaintiff’s Interrogatory No. 2:
In your Answer to Count VI, Paragraph No. 41 of Plaintiff’s Supplemental Complaint for Injunctive Relief, you deny that “in-home nursing is the most integrated setting for services for Eric and is at least as cost-effective as treatment he would receive in an institution.”
A. Please describe in detail each and every basis for your denial and each and every fact upon which you rely in making this denial. ... Defendant’s Amended Response to Interrogatory No. 2: .... A. ... Finally, Eric Radaszewski has no present “right” to receive or “legally protected interest” in receiving any Medicaid-funded services in the community (i.e., in his parents’ home), unless he qualifies for a home and community-based services waiver administered by Defendant pursuant to 42 U.S.C. §1396n(c). Medicaid-funded waiver programs are an opportunity or capability for receiving some services in the community to prevent admission to a long-term care facility. Section 1396n(c). ....
If Eric Radaszewski does not qualify for the Home Services Program, there is no other program or option administered by Defendant and funded by Medicaid
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through which he can receive in-home nursing services. If Plaintiff is claiming that Defendant must create new programs to care for her son, that claim is not cognizable in the federal court. DaimlerChrysler Corp. v. Cuno, ___ U.S. ___, 126 S.Ct. 1854 (2006), Olmstead v. L.C. 527 U.S. 581 (1999)(Kennedy, J. concurring). The Olmstead Court state that the “states must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” 7. Plaintiff asks the court to limit Ms. Ginder’s testimony to exclude the abovedescribed legal conclusions.
Respectfully submitted, s/Sarah Megan Sarah Megan #6182931 Attorney for Plaintiff Prairie State Legal Services, Inc. 201 Houston St., Suite 200 Batavia, IL 60510 (630) 232-9420
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Certificate of Service I hereby certify that on August 23, 2007, I presented the foregoing Plaintiff’s Motion In Limine to Limit Testimony of Barbara Ginder with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:
Karen Elaine Konieczny Karen.Konieczny@Illinois.gov John E. Huston John.Huston@Illinois.gov Christopher Samuel Gange Christopher.Gange@Illinois.gov
Respectfully submitted, s/Sarah Megan Sarah Megan Bar Number 6182931 Attorney for Plaintiff 201 Houston St., Suite 200 Batavia, IL 60510 Telephone: (630) 232-9420 Fax: (630) 232-9402 E-mail: smegan@pslegal.org
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 </s> Case: 1:01-cv-09551 Document #: 165 Filed: 10/17/07 Page 1 of 15 PageID #:1965

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI,

)

Guardian, on behalf of Eric Radaszewski, )

)

Plaintiff,

)

)

vs.

)

)

BARRY MARAM,

)

Director, Illinois Department of

)

Healthcare and Family Services,

)

Defendant.

)

No. 01 C 9551 Judge John W. Darrah

Closing Argument Plaintiff’s Case
The decision of the Seventh Circuit in this case established the elements that Eric Radaszewski’s mother must prove in order to obtain relief under the Americans with Disabilities Act, 42 U.S.C. §12132 (ADA), and Section 504 of the Rehabilitation Act, 29 U.S.C. §794 (Section 504). Radaszewski v. Maram, 383 F.3d 599, 608- 616 (7th Cir. 2004). Those elements consist of the following: (1) State treatment professionals have found that treatment in the community is appropriate; (2) The affected individual does not oppose community based treatment; (3) Placement in the community can be reasonably accommodated taking into account the State’s resources and the needs of others with similar disabilities. 383 F.3d at 608. This closing argument will demonstrate how the evidence proves that each of the requirements has been met.
A. Findings of State Professionals The Seventh Circuit found as to this requirement, that “[t]here is little doubt that Eric can be cared for appropriately at home. He has been receiving care at home since 1994, and according to the complaint, he benefits from the support of and interaction with his parents in that environment.” 838 F.3d at 608. The proof in this case supports that finding. Plaintiff’s Exhibit 40, the Administrative Decision of the defendant in this case, on page DHS10097, found that Eric had been cared for at home for a number of years through funding from the Division of Specialized Care for Children (DSCC). Plaintiff’s Exhibits 1, 2, 3, 4, 5, 6, 7, 9, 10, 12, 13, 15,

Case: 1:01-cv-09551 Document #: 165 Filed: 10/17/07 Page 2 of 15 PageID #:1966
and 16 each contain either recommendations from Department of Health Care and Family Services (HFS) physician consultants for approving Eric’s in-home care while he was participating in the Medically Fragile and Technology Dependent Waiver (MFTD) or Forms IDPA 2352's issued by HFS, approving such in-home care. ( Donna Radaszewski testified regarding Eric’s care in the community (Tr. p. 66, ln. 7 - p. 68, ln.9) and how Eric benefits from living at home. (Tr. p. 76, ln. 19 - p. 77, ln.13).1 B. The affected individual does not oppose community based treatment
Based on the testimony of Donna Radaszewski, this Court found that plaintiff had proven by a preponderance of the evidence, that neither Eric nor his mother opposed community based treatment. (Tr. p.65, lns. 12-15 ) C. Reasonable Accommodation
The Seventh Circuit determined that Eric’s mother could prove the third element, that the relief requested could be reasonably accommodated if she could show: (1) that a nursing facility would not meet Eric’s medical needs; (2) the level of care that Eric would require in an institutional setting whether it would be a nursing facility, a hospital or some other type of facility; (3) that the appropriate institutional setting could provide equivalent care to the care Eric was receiving at home; and (4) that Eric is a “qualified individual” under the Americans with
1 This case arose in 2000 when Eric turned 21. Prior to that time, HFS had provided reimbursement for 16 hours of at - home skilled nursing for Eric with 336 hours of respite care under the MFTD. (Plaintiff’s Exhibits 2, 7, 10, 13). The Division of Rehabilitation Services (DRS), a division of the Department of Human Services (DHS) operates the waiver for disabled persons - the HSP pursuant to an interagency agreement with HFS. (Tr. p. 319, lns.10 - 25). When Eric turned 21, he was found eligible for and transitioned into the HSP. (Jt. Exhibit 2). His monthly reimbursement under the HSP was $4,593 based upon the exceptional care rate paid to Alden Lincoln Park, a skilled nursing facility. (Jt. Exhibit. 5). The cost of nursing at home from 2000 to the present is $29.55 per hour. (Testimony of Donna Radaszewski, Tr. p. 56, lns. 10 - 17). Thus the reimbursement provided under the HSP would pay for approximately five hours a day of nursing instead of the 16 hours of nursing Eric received while in the MFTD waiver. Thomas Napolski, a DRS case counselor who was responsible for Eric’s case in 2006, testified that the plan of care offered Eric in the HSP based upon the nursing home based reimbursement rate of $4,593 would not meet Eric’s needs. (Tr. p. 191, lns. 5-11). It is uncontested that $4,593 is not adequate to allow Eric to remain at home.
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Disabilities Act because he meets the essential eligibility requirements of HFS’s home and community based waiver program known as the Home Services Program (HSP).2 Those essential elements as set forth by the Seventh Circuit are that he has severe long term disabilities; he is eligible for Medicaid; he is at risk of placement in an institution; and his home is an appropriate care setting. 383 F.3d at 612. The Seventh Circuit’s decision also noted that Eric is not an “unqualified” disabled person because he is not able to handle or benefit from community settings, the State’s medical professionals believe he is not able to live in the community or that Eric or his parents do not wish to live in the communty. Id. In addition the Seventh Circuit stated that Eric also qualified for the HSP “in the sense that the cost of his continued care at home would not exceed the anticipated cost of caring for him in an appropriate institutional setting. 383 F. 3d at 613. As demonstrated below, the evidence in this case demonstrates that Eric meets each of these requirements.
(1) A nursing home would not meet Eric’s medical needs. The undisputed evidence in this case is that a nursing home would not meet Eric’s medical needs. Dr. Michael Peters, Eric’s treating physician, testified that a nursing home would not meet Eric’s medical needs. (Tr. p. 118, ln. 14 - p. 119, ln. 9). He stated:
I believe the severe nature of his disabilities, the constellation of problems that he has, quite frankly, I don’t think he would get the care he would need. In fact, it would create more problems for putting him in a nursing home setting. So I truly believe he would not do well in that setting.
(Tr. p. 138, lns. 9 - 14). Defendant offered no evidence to the contrary. Dr. Peters based his opinion on his description of Eric’s medical condition of having been
diagnosed at age 12 with a brain tumor, a medulloblastoma, in the deep center of his brain that ultimately was treated with surgery, and combinations of radiation and chemotherapy. (Tr. p. 100, lns. 19-23). Thereafter, Eric suffered a stroke, developed a seizure disorder and an obstruction in the ventricular system in the brain that led to placement of drainage catheters from
2 The waiver in this case has been referred to at trial as the HSP Waiver and the Persons with Disabilities Waiver (PWD) Waiver. Plaintiff will refer to this waiver in this closing argument as the HSP Waiver.
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his brain. (Tr. p. 100, ln. 24 - p. 101, ln. 4).3 Dr. Peters further testified that Eric’s current medical problems relate to those medical
events. (Tr. p. 106, lns. 2 - 5). Eric at present has no meaningful pituitary gland function, has an active seizure disorder, and is in a chronic disease state with a chronic immune suppressive condition that causes him to be very prone to infections. (Tr. p. 106, lns. 9 - 18). Because of the hormones that he has been given to compensate for his lack of a pituitary gland function, he has developed deformities of his bones and spinal column. He has trouble breathing properly and is prone to aspirating food into his lungs. He has developed a progressive spinal deformity which is affecting his ability to breathe. (Tr. p. 106, ln. 19 - p. 107, ln. 2). Dr. Peter’s Physician’s Plan of Treatment states that Eric developed Inappropriate Antidiruretic Hormone (SIADH) in December, 1993, Sleep Apnea in May, 1994 and has suffered recurrent bouts of pneumonia, sepsis, skin infection and sinus infection. (Plaintiff’s Ex. 28-A, Certification Period 6/1/07 7/30/07, p. 2, 29-A).
Dr. Peters explained that Eric’s medical condition is “very complex,” (Tr. p. 108, ln. 15), “probably the most complex medical case I have had to take care of during my medical career . . . .” (Tr. p. 111, lns. 15 - 17). He explained that Eric lacks the brain functions that most normal people have in regulating the brainstem and pituitary functions which are vital to maintaining balances and normal function around the body. (Tr. p. 108, lns. 17 - 21). Eric is completely reliant on outside sources of hormonal support: thyroid treatment, an adrenal hormone, a supplemental form of testosterone, and supplemental forms of nutrition to maintain normal salt balances and chloric intake. (Tr. p. 108, ln. 22 - p. 109, ln. 2). Dr. Peters further testified that when Eric gets sick, he often requires antibiotic therapy. Because he has difficulty absorbing and utilizing items properly when given by mouth, his treatments for pneumonia, urinary tract infections and soft-tissue infections require IV administration of these medications. (Tr. p. 109, lns. 3 - 13). He cannot communicate how he feels in most situations, continues to have active seizures, is wheelchair dependent, has suffered from fractures, has a very complex set of
3 Plaintiff’s Exhibit 28-A, Physician’s Plan of Treatment, Certification Period 9/1/07 7/30/07, page 2, indicates that Eric suffered a mid-brain stroke in December, 1993, hydrocephalus that same month, and developed his seizure disorder in February, 1992.
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medications (20 - 25 on a daily basis and ten additional medications given to treat various symptoms as needed) to maintain his balances, has blood drawn from an intravenous catheter site and currently has a PICC line site in his arm from which blood is drawn and medications administered. He is prone to problems from interactions between the medications he receives. (Tr. p. 109, ln. 14 - p. 111, ln. 3). Dr. Peters further explained that the administration of these medications has to be monitored constantly because they can cause liver inflammation, put stress on Eric’s kidneys and can cause further bone marrow suppression. (Tr. p. 111, lns. 9 - 12).
Dr. Peters testified that Eric’s medical conditions and needs require experienced and knowledgeable registered nurses to actively assess Eric to monitor changes in his well being, to ensure that he’s getting his medications properly, to assess changes in his status so that problems can be brought to Dr. Peters’ attention as quickly as possible, to understand the current treatments Eric is receiving and whether they are working, to understand what those treatments are supposed to accomplish, and to monitor for side effects and interactions with other treatments, which in Eric’s case is a very complex undertaking. (Tr. p. 113, ln. 8 - p. 114, ln. 4, p. 114, ln. 17 - p. 115, ln. 4.). Dr. Peter’s Physician’s Plan of Treatment sets forth in detail the specific medical tasks that are required to care for Eric. They include such tasks as administration of IV fluids and medications via PICC line, sterile dressing changes to the PICC line, NG insertion for nutrition, hydration and medications, nasal suctioning, urine testing, glucose testing, use of suction equipment, use of pulse oximeter, administration of TPN via PICC line, providing oxygen as needed to maintain oxygen level above a specified level or for treatment during seizures; assessment of cardio/respiratory, GI, GU, neuro, musculosketal, renal status, response to medication treatment, pain management, nutrition status, hydration, and mental status. (Plaintiff’s Exhibit No. 28-A, Certification Period 6/1/07 - 7/31/07, page 3, Paragraph 19). Dr. Peters in each of the Physician’s Plans of Treatment that comprise Plaintiff’s Exhibit 28-A ordered no less than 16-24 hours of skilled nursing (RN only) each day for Eric and certified that Eric needs one-on-one skilled nursing care.4
Dr. Peters testified that he was familiar with the level of care provided in nursing
4 Plaintiff’s Exhibit 28-A consists of approximately 25 Physician’s Plans of Care signed by Dr. Peters.
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Case: 1:01-cv-09551 Document #: 165 Filed: 10/17/07 Page 6 of 15 PageID #:1970
facilities, having cared for 200 - 300 nursing home residents as a family physician. (Tr. p. 117, lns. 6 - 8). He explained that his opinion that a nursing home would not meet Eric’s needs is based on the fact that although nursing facilities employ registered nurses, the number of patients that each nurse has to supervise and take care of each day would be too great to permit nurses to adequately care for Eric. Nursing facility nurses do not provide day-to-day care for residents because they are responsible for supervision and administration of medications. (Tr. p. 117, ln. 17 - p. 118, ln. 1). Rather, such care is delegated to nursing assistants who do the bathing and changing of the bed. Although a nursing facility resident might see a therapist once or twice during the day, the residents are on their own for most of the day. (Tr. p. 118, lns. 2 - 7). In Dr. Peters’ opinion, that level of attention would be inappropriate to meet Eric’s needs. (Tr. p. 118, lns. 9 - 10). Dr. Peters further testified that because of staffing levels at a nursing facility, that Eric would not receive his treatments appropriately. He explained that because of the complexity and extensiveness of Eric’s medications and hormonal therapies and the fact that some of them are highly reliant on timing of administration during the day to maintain his metabolisms, Eric requires a level of support that a nursing facility could not provide. (Tr. p. 118, lns. 16 - 24).
Another basis for Dr. Peter’s opinion that a nursing facility would not meet Eric’s medical needs is the regularity of infections that exist in a nursing facility and the fact that nursing facility staff don’t take as many precautions to prevent the spread of infection as are taken in a hospital. (Tr. p. 118, ln. 25 - p. 119, ln. 5). Dr. Peters testified that because Eric is so immune suppressed, that Dr. Peters would “virtually guarantee” that Eric would contract repeated infections in a nursing facility that would be more difficult to treat over time. (Tr. p. 119, lns. 6 9).
Dr. Peters also testified that there were no substantial difference between Eric’s medical condition in 2000 and at present. (Tr. p. 108, lns. 10 - 11). HFS’s administrative hearing decision when Eric turned 21 in 2000 found that the uncontradicted evidence was that Eric would be at risk of danger if he were to be placed in a nursing home. (Plaintiff’s Ex. 40, - p. DHS10098, #H).
In addition, State officials found that Eric needed a hospital level of care before he turned 21 in 2000. Prior to Eric’s turning 21 in August of 2000, he received 16 hours a day of RN-level
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skilled nursing and 336 hours each year of respite care through the MFTD Waiver. (Plaintiff Exhibit 1, p. HFS006908; Pl. Ex. 2; Pl. Ex. 3, p. HFS006961; Pl. Ex. 4, p. HFS007695; Pl. Ex. 5, p. HFS007708; Pl. Ex. 6, p. HFS006993; Pl. Ex. 7; Ex. 9, p. HFS007812; Pl. Ex. 10; Pl. Ex. 12, p. HFS001628; Pl. Ex. 13; 40 - p. DHS10097 , #B). That waiver program is administered under the direction of HFS which is the single state agency responsible for administering the Medicaid Program in Illinois and is operated by DSCC through an interagency agreement between the two agencies. (Plaintiff’s Exhibit 42; Pl. Ex. 49, p. 004264; Pl. Ex. 56, p. HFS001873). The amount of nursing services provided in the home in the MFTD is determined by HFS based upon a comprehensive medical assessment of the child and the development of a medical plan of care. (Plaintiff’s Exhibit 41, p. 003666, Pl. Ex. 56, p. HFS001879). The primary medical service identified on the plan of care is nursing. (Plaintiff’s Exhibit 56, p. HFS001879).
HFS has established procedures to ensure that children served by the MFTD waiver meet medical eligibility including the appropriate level of care and that the services to be provided are medically necessary. (Plaintiff’s Exhibit 57, p. HFS001906, Testimony of Barbara Ginder, Tr. p. 360, lns. 6 - 7). According to those procedures applications for participation in the MFTD and subsequent renewals include: (1) a cover letter from the DSCC case coordinator explaining why nursing is needed and what is occurring medically with the child; (2) a Form DPA 3399, “Assessment of Need for Care,” which collects medical information regarding treatments, therapies and their frequency and a designation of the alternative level of care prescribed if home care is not available including a hospital, a skilled nursing facility or an intermediate care facility for the mentally retarded; (3) a letter from the child’s doctor in response to an inquiry sent to the doctor by DSCC staff requesting a brief narrative of the relevant medical history, diagnosis, prognosis, developmental/functional level, current health status, nursing personnel needs in the home specifying the level of nursing expertise required (RN, LPN, CNA) and the number of hours required per week of each, physical care needs including medications, treatments and nursing procedures, therapies (type, frequency, and duration), and nutrition needs; (4) medical reports, (5) nursing notes, and (6) a report from the nursing agency. (Plaintiff’s Exhibits 41 p. 003848; Pl. Ex. 52; Pl. Ex. 56 - p. HFS001119).
Based on this extensive and detailed information, HFS makes the final determination and
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approval of all medical eligibility and renewals using an HFS team consisting of a nurse and physician consultants. (Plaintiff’s Exhibit 56, p. HFS001875). The HFS physicians often contact the child’s attending physician to verify the level of need for services. (Plaintiff’s Exhibit 57, p. HFS001906). HFS then issues a Notice of Decision on Request for Medical Service on Form DPA 2352 to the participant, whether the plan is approved or denied. (Plaintiff’s Exhibit 56, p. HFS001875). HFS reviews information regarding the child’s care needs every six months for the first 18 months of eligibility and then annually. Even when a child is on an annual reevaluation schedule, DSCC submits medical updates to HFS every six months. (Id).
Plaintiff’s Exhibits 1 - 14 comprise Eric’s application for and renewal, approval, and updates of his medical plan of care while he participated in the MFTD waiver, a period extending from July, 1995 and ending in August of 2000, when Eric turned 21. These exhibits prove the following facts. First, HFS’ physician consultants throughout this period consistently approved plans of care for Eric of 16 hours of in-home nursing care each day. (Plaintiffs Exhibit 1, p. HFS006908; Pl. Ex. 2, p. HFS006961; Pl. Ex. 4, p. HFS007695; Pl. Ex. 5, p.HFS007708; Pl. Ex. 6, p. HFS006993; Pl. Ex. 9, p. HFS007812; Pl. Ex. 12, p. HFS001628 ). Second, HFS approved the 16 hours a day of in home nursing care by issueing Forms 2352's, Notices of Decisions. (Plaintiff’s Exhibits 2, 7, 10, 13).5 Third, state officials found in Forms DPA 3399 that the alternative level of care to in home nursing was a hospital and not a skilled nursing facility or an intermediate care facility for the mentally retarded. (Plaintiff’s Exhibit 1, p. HFS006929; Pl. Ex. 3, p. HFS006979; Pl. Ex. 4, p. HFS007705; Pl. Ex. 5, p. HFS007726; Pl. Ex.6, p. HFS007012; Pl. Ex. 9, p. HFS007877; Pl. Ex. 12, p. HFS001634).
In addition, each packet contained a Managing Physician’s Report signed by Eric’s physician setting forth his need for RN nursing care, an explanation of why this level of care was necessary, and a statement that a hospital would be the alternative location of care if home care were to be abandoned. (Plaintiff’s Exhibit 1, p. HFS006919; Pl. Ex. 3, p. HFS006964; Pl. Ex. 4, p. HFS007698; Pl. Ex. 5, p. HFS007713; Pl. Ex. 6, p. HFS006997; Pl. Ex. 9, p. HFS007816; Pl. Ex. 12, p. HFS001631). And, each packet contained a Physician’s Plan of Treatment and/or
5 When Eric was hospitalized in February and April of 2000, HFS approved 24 hours of short term nursing care at home to prevent re-hospitalization. (Plaintiff’s Exhibits 15 and 16)
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other medical information such as nursing notes used by HFS to determine the level of nursing care that Eric required. (Plaintiff’s Exhibit 1, pp. HFS006930, HFS006931, HFS006940; Pl. Ex. 3, p. HFS006966; Pl. Ex. 4, p. HFS007700; Pl. Ex. 5, p. HFS007715; Pl.Ex. 6, p. HFS007000; Pl. Ex. 9. p.7820; Pl. Ex. 12, p. HFS001636). Thus, the undisputed evidence is that Eric’s medical condition and needs had not changed in August, 2000 when he turned 21 and that HFS had consistently found based on extensive and detailed information that Eric’s medical condition required 16 hours of skilled nursing care to safely remain at home based and that the alternative to care at home was a hospital and not a nursing facility.6
In its decision, the Seventh Circuit noted that the HFS hearing officer specifically found, based on uncontradicted evidence “that Eric would be at risk of danger if he should be placed in a nursing home.” (See, Plaintiff’s Exhibit 40, p. DHS10097, #H). 383 F.3d at 610. The Court went on to explain that in view of that finding it assumed that Ms. Radaszewski would be able to prove that Eric, if institutionalized, would require “a more care-intensive setting than a nursing home-a hospital, for example-in order to survive.” Id. Plaintiff submits that the evidence at trial, uncontradicted by the defendant, proves that a nursing home is not, as the Seventh Circuit discussed, “the appropriate reference points for assessing whether the private-duty nursing that Eric seeks to receive at home is a service that would be provided in an institutional setting.” Id.
(2) The level of care that Eric would require in any institutional setting The Seventh Circuit stated that the next question “concerns the level of care that Eric would require in an institutional setting-whether it be a nursing home facility, a hospital, or another type of care facility.” Id. The court further explained that the evidence presented at Eric’s administrative hearing made it “plausible to suppose” that in an institutional setting Eric could not be left unattended or attended only by a person lacking significant medical skills for any amount of time and that Eric requires “skilled assistance in order to safely accomplish many of the bodily functions necessary to remain alive . . . .” Id. The uncontradicted evidence
6 The packets comprising plaintiff’s Exhibits 1 - 14 contain Forms 53.47, Cost Estimates, which indicate each time that the cost of providing care to Eric at home was less than the estimated cost of his care would be in the appropriate institution - a hospital. (Plaintiff’s Exhibt 1, p. HFS006934; Pl. Ex. 3, p. HFS006981; Pl. Ex. 4, p. HFS007707; Pl. Ex. 5, p. HFS007711; Pl. Ex. 6. p. HFS007014), Pl. Ex. 9, p. HFS007870).
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discussed above demonstrates that Eric requires one-on-one care in any institutional setting and specifically that he could not be left unattended or his care provided by persons lacking the necessary medical skills.
(3) The appropriate institutional setting would be equivalent to the private duty nursing Eric receives at home
The Seventh Circuit explained that even though an institutional facility would not assign private duty nurses to provide Eric’s care, a hospital, in lieu of one-on-one nurse caring for Eric, might be able to use monitors and a pool of immediately available skilled professionals tending to multiple patients to provide the frequent, immediate assistance Eric medically requires, so that the level of care provided “is the equivalent of around the clock private duty nursing care.” 383 F. 3d at 611. Plaintiff has proven this requirement. Dr. Peters testified that he has substantial experience with the care that hospitals provide. (Tr. p. 116, ln. 23 - p. 117, ln. 1). He opined that a hospital would be the only alternative setting appropriate to Eric if he could not receive care at home. (Tr. p. 115, ln. 25 - p. 116, ln. 3 ). He explained that hospitals use monitors, oximeters and telemetry to provide hospital staff with instant information on a patients’s medical needs with staff assigned to watch the monitors. (Tr. p. 136, lns. 14 - 17) He explained that hospital floors are configured so that a nurse is never more than 20 to 30 feet from a patient’s room. (Tr. p. 136, lns. 12 - 14). At Edwards Hospital, where Eric has been hospitalized (Plaintiff’s Exhibit 29-A), there is one registered nurse and two certified nurses assistants assigned to four patients (Tr. p. 132, lns. 14 - 25). Defendant provided no testimony to the contrary. Thus, Dr. Peter’s testimony establishes the equivalency of the care Eric would receive in a hospital to the nursing care he receives at home.
(4) HFS does provide funding for private duty nursing to adults The decision of the Seventh Circuit states that relevant to the question of whether continuous private duty nursing is a service that Illinois offers in any setting is the fact that HFS “can and does make a available a limited amount of funding for private duty nursing to adults participating in the HSP.” The court went on to explain:
The cap on the level of funding that HSP would provide to Eric and his family prevents him from receiving the level of privateduty nursing that he needs-recall that the exceptional care rate
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approved for Eric would pay for only four or five hours of privateduty nursing per day rather than the 24 hours per day that his family seeks. But the fact that the State already provides for some private-duty nursing tends to belie the notion that providing such care to Eric so that he may remain at home would require the State to alter the substance of its Medicaid programs by creating an entirely “new” service.”
383 F.3d at 612. The evidence in this case shows that HFS, as the Seventh Circuit noted, provides private duty nursing at home to persons in the HSP. Francis Kopel, the chief of HFS’s Bureau of Program and Reimbursement Analysis, testified that private duty nursing is “continuous and individual one-on-one care provided to a person who has the medical need for that care.” (Tr. p. 291, lns. 1-2). Barbara Ginder, the Chief of HFS’s Bureau of Interagency Coordination, the entity that is responsible for overseeing the State’s Medicaid waiver programs (Tr. p. 218, lns. 12 - 15, ln 24 - p. 219, ln. 1), also defined private duty nursing as “ongoing and continuous nursing.” (Tr. p. 354, lns 14 - 16). Ms. Ginder testified that there is no limitation on the number of hours that an individual in the HSP can have of skilled nursing other than the cost cap that is assigned to them (Tr. p. 224, lns. 21 - 25) and that persons in the HSP could receive eight or more hours a day of skilled nursing at home. (Tr. p. 225, lns. 5 -7). Irrespective of whether HFS calls such services “private duty nursing,” in fact the uncontradicted evidence is that extensive one-on-one skilled nursing services are available under the HSP.
(5) Eric is a “qualified individual” under the Americans with Disabilities Act because he meets the essential eligibility requirements of HFS’s adult waiver program
Eric was found eligible for the HSP. (Plaintiff’s Exhibit 40, p. DHS 10097, #C, Stipulation of the Parties with respect to Defendant’s Exhibit 46 as stated by the Court at Tr. p. 273, lns. 4 - 10). In addition, the evidence shows that he meets each of the essential eligibility requirements for the HSP set forth by the Seventh Circuit as follows:
(A) He has severe long term disabilities. The evidence discussed above proves that Eric has long term disabilities. Eric’s disability began in 1992 when he contracted a malignant brain tumor. ( Testimony of D. Peters, Tr. p. 100, lns. 19 - 21). Dr. Peters has testified that his disability remains essentially unchanged (Tr. p. 108, lns. 10 - 11 and that there is no prognosis for recovery. (Tr. p. 111, ln. 24 - p. 112, ln. 5). The
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Case: 1:01-cv-09551 Document #: 165 Filed: 10/17/07 Page 12 of 15 PageID #:1976
defendant has presented no evidence to the contrary. (B) Eric is eligible for Medicaid.
The parties have stipulated that Eric is eligible for Medicaid. (Stipulation #3). (C) Eric is at risk of placement in an institution.
Dr. Peters has testified that if care was not available to Eric at home he would have to be institutionalized. (Tr. p 135, lns. 1 - 10, Plaintiff Exhibits 28-A, ). The defendant has presented no evidence to the contrary.
(D) Eric’s home is an appropriate care setting. Dr. Peter’s has testified that the care Eric receives at home has made a huge impact on him staying well. (Tr. p. 115, lns. 13 - 15). As set forth on pages seven to eight above, state professionals approved home care for Eric as an appropriate setting for Eric consistently while he was in the MFTD waiver.
(E) Eric is not an unqualified disabled person. This element was discussed above on pages 1 and 2. The testimony of Dr. Peters and Eric’s mother demonstrate that Eric is able to benefit and in fact benefits from living in the community. Dr. Peters testified that from a medical standpoint, the medical care provided to Eric in the community is an important part of why Eric has done as well has he has. (Tr. p. 115, lns. 10 - 11). Eric’s mother, Donna Radaszewski testified to the activities that Eric engages in at home and his interactions with family, friends, and persons in the community. ( Tr. p. 76, ln. 19 - p. 77, ln. 13.) As discussed, HFS’s consulting physicians have found that Eric can live in the community. This court has found that Eric wishes to remain in the community. (Tr. p. 65, lns. 12-15). (6). Eric qualifies for the HSP in the sense that the cost of his care at home would not exceed the anticipated cost of caring for him in an appropriate institutional setting
The evidence indicates that it would cost the State less to provide Eric’s care at home then in the appropriate institutional setting, a hospital. Eric’s cost of care at home during 2005, the most recent year of complete data (Testimony of Matthew Werner, Tr. p. 566, lns 19 - 20) was $20,499 per month or $676.53 per day. (Defendant’s Exhibit #3, p. HFS009601; Plaintiff’s Exhibit 55, p. HFS009606) In contrast, the average Medicaid reimbursement cost for a person
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Case: 1:01-cv-09551 Document #: 165 Filed: 10/17/07 Page 13 of 15 PageID #:1977
over 21 years of age for a hospitalization in excess of 120 days in 2004-2005 was $1,428.75 per day. (Plaintiff’s Exhibit 46, Testimony of Barbara Ginder, Tr. p. 236, ln. 25 - p. 237, ln. 2). There has been no reduction in hospital reimbursement rates since that time period. (Testimony of Barbara Ginder, Tr. p. 236, ln. 25 - p. 237, ln. 2). In 2006 Eric was hospitalized for 14 days at a Medicaid reimbursement cost to the State of $22,710 or $1,621 dollars per day. (Plaintiff’s Exhibit 55, p. HFS009606).
Under the Illinois Medicaid Program, HFS pays for long term care for adults in the institutional setting they require, including skilled nursing facilities and hospitals. (Pl. Ex. 45, Amended Answer, Par. 33, Sidell v. Maram, Plaintiff’s Exhibit 45A, Complaint, Par. 33, Sidell v Maram). Illinois does not own or operate facilities for long-term care of persons with disabilities other than veterans nursing homes. (Testimony of Francis Kopel, Tr. p. 201, lns. 2 16). Thus, the Illinois Medicaid Program covers medically necessary hospitalization (and nursing facility care) for disabled adults, by making payments to private vendors. (Testimony of Francis Kopel, Tr, p. 201, ln. 17 - 20; p. 209, ln. 16 - p. 210, ln. 2).
The Seventh Circuit also found it relevant that participation in the MFTD Waiver required cost neutrality. 383 F. 3d at 613. As discussed on pages 7 - 8 above, the evidence demonstrates that Eric participated in the MFTD Waiver from 1995 until 2000 and that the cost estimates contained in his original application and renewal packets indicated that it cost less to care for Eric at home than in the appropriate institution, a hospital.
Conclusion Plaintiff submits that the above discussion of the evidence in this case demonstrates that the required elements established in this case by the Seventh Circuit are proven by a preponderance of the evidence. Plaintiff will respond to defendant’s fundamental alteration affirmative defense in her reply brief.
______________________________ s/Bernard H. Shapiro Bernard H. Shapiro Bar Number 2564009 Attorney for Plaintiff 201 Houston St., Suite 200 Batavia, IL 60510 Telephone: (630) 232-9420 Fax: (630) 232-9402
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Case: 1:01-cv-09551 Document #: 165 Filed: 10/17/07 Page 14 of 15 PageID #:1978 E-mail: bshapiro@pslegal.org
PRAIRIE STATE LEGAL SERVICES, INC. Eliot Abarbanel Bernard H. Shapiro Sarah Megan 350 South Schmale Road Suite 150 Carol Stream, IL 60188 630-690-2130
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Case: 1:01-cv-09551 Document #: 165 Filed: 10/17/07 Page 15 of 15 PageID #:1979
Certificate of Service I hereby certify that on October 17, 2007, I presented the foregoing Plaintiff’s Closing Argument with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:
Karen Elaine Konieczny Karen.Konieczny@Illinois.gov John E. Huston John.Huston@Illinois.gov Christopher Samuel Gange Christopher.Gange@Illinois.gov
____________________ s/Bernard H. Shapiro Bernard H. Shapiro Bar Number 2564009 Attorney for Plaintiff 201 Houston St., Suite 200 Batavia, IL 60510 Telephone: (630) 232-9420 Fax: (630) 232-9402 E-mail: bshapiro@pslegal.org
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 </s> Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 1 of 26 PageID #:1939

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI,

)

Guardian, on behalf of Eric Radaszewski, )

)

Plaintiff,

)

)

vs.

)

)

BARRY MARAM,

)

Director, Illinois Department of

)

Healthcare and Family Services,

)

)

Defendant.

)

No. 01 C 9551 Judge John W. Darrah

Plaintiff’s Proposed Findings of Fact and Conclusions of Law

Plaintiff Donna Radaszewski, through counsel Prairie State Legal Services, Inc., submits

proposed findings of fact and conclusions of law below. During trial, the Court made the factual

finding that Eric Radaszewski, through his guardians, does not oppose community-based

treatment. (Tr. p. 65, lines 12 through 15).

I. Proposed Findings of Fact:

1. Plaintiff Donna Radaszewski is the guardian for her disabled adult son, Eric

Radszewski, and brings this action on his behalf. (Testimony of Donna Radaszewski, Tr. p. 35,

ln. 3 through 4).

2. Defendant Barry S. Maram is the Director of the Illinois Department of Healthcare and

Family Services (HFS), an agency formerly known as the Illinois Department of Public Aid.

Mr. Maram is sued in this matter in his official capacity as the Director of HFS. (Parties’

Stipulation of Uncontested Fact, #1,2).

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3. Eric Radaszewski is eligible for and a participant in the Illinois Medicaid Program. (Amended Answer, Count VI, Par. 4).
4. In Illinois, HFS is the single state agency responsible for administering the Medicaid program. (Parties’ Stipulation of Uncontested Fact, #4).
5. Illinois receives federal funds for the Medicaid program. (Parties’ Stipulation of Uncontested Fact, #6).
6. Eric Radaszewski was born on August 5, 1979. (Amended Answer, Count VI, Par. 26) Eric turned 21 on August 5, 2000. (Parties’ Stipulation of Uncontested Fact, #5).
7. Eric Radaszewski was diagnosed with medulloblastoma, a brain cancer, in 1992. (Amended Answer, Count VI, Par. 5).
8. After undergoing surgery, radiation, and chemotherapy to treat the cancer, Eric Radaszewski suffered a mid-brain stroke in 1993. (Amended Answer, Count VI, Par. 6).
9. The cancer, stroke, and medical treatment have impaired Eric's physical and mental functions and left him with multiple and complex disabilities. (Testimony of Michael E. Peters, M.D., Tr. pp. 100-119; Pl. Exh. 40, pp. DHS 10096-10098; Pl. Exh. 28A; Pl. Exh. 29A; Pl. Exh. 1,3,4,5,6,8,9,11,14).
A. State Officials Have Determined that Home Care is Appropriate for Eric Radaszewski
10. From 1995 until Eric’s 21st birthday on August 5, 2000, Eric Radaszewski participated in a home-and-community-based care program known as the Medically Fragile Technology Dependent Children’s Waiver (MFTD). (Pl. Exh. 1 - 16, Pl. Exh. 40, p. DHS 10096-10097).
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11. The MFTD waiver helps families care for children who are technology dependent and require intensive skilled nursing care to live in their own home rather than in a hospital or skilled nursing facility when the cost would be less expensive than the cost to the State for the institutional care. (Pl. Exh.41, p.3795; Pl. Exh. 1, p. HFS 006933; Pl. Exh. 42, p. HFS 0069846985).
12. According to Barbara Ginder, the HFS official who oversees the MFTD, the term “medically fragile” means that “a child has a condition that is very, very medically complex and is very difficult to provide care for without ongoing and continuous nursing.” (Ginder Testimony Tr. p. 354, ln. 13 through 16).
13. Eligibility for the MFTD and the amount and nature of the services approved under the MFTD are based on a comprehensive evaluation of the child’s needs by state officials, including physician consultants employed by HFS. (Pl. Exh. 41, pp. 003662,-3663, 3848, 3849, 3858, Pl. Exh. 56, pp. HFS 001875, 001879; Pl. Exh. 57, p. HFS 001906).
14. While Eric Radaszewski was in the MFTD, HFS’ physicians repeatedly approved care plans for him which included 16 hours per day nursing care and 336 additional nursing hours for respite for his parents. (Pl. Exh, 1, HFS 006908; Pl. Exh. 3, p. HFS 006961; Pl. Exh. 4, p. HFS 007695; Pl. Exh. 5, p. HFS 00708; Pl. Exh. 6, p. HFS 006933; Pl. Exh. 9, p. HFS 007812; Pl. Exh. 12, p. HFS 001628).
15. Since 2000, when Eric turned 21, there has been no substantive difference in Eric Radaszewski’s medical condition. (Peters Testimony, Tr. p. 108, ln. 10-11).
16. Eric's parents have learned how to care for Eric, and provide nursing care during the
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eight hours of each day when nurses are not present caring for Eric. (Radaszewski Testimony, Tr. p. 66, ln. 18 through 24, pp. 70, ln. 10 through 19).
17. Prior to Eric’s 21st birthday, state officials found Eric eligible for home care through the Home Services Program (HSP)1. (Jt. Exh. 2, Pl. Exh. 40, Finding C, p. DHS 10097).
18 The service plan approved for Eric in the HSP was limited to a cost cap of $4,593 per month, based on an exceptional care rate for a nursing facility. (Jt. Exh. 5; Radaszewski Testimony, Tr. p. 56, ln. 3 through 6; Napolski Testimony, Tr. p.186, ln. 19 through p.187, ln. 6).
19. The $4,593 per month cap would only be sufficient to cover approximately five hours per day of at-home nursing services for Eric. (Pl. Exh. 40, p. DHS 10097; Radaszewski Testimony, Tr. p. 56, ln. 7 through 23).
20. The service plan based on the $4,593 cap would not meet Eric Radaszewski’s medical needs. (Napolski Testimony, Tr. p. 191, ln 9-11, Pl. Exh. 40, p.10097-10098, Pl. Exh. 1-14, Radaszewski Testimony, Tr. p. 56, ln. 24 through p. 58, ln. 8).
B. A Nursing Home Cannot Meet Eric Radaszewski’s Medical Needs; He Requires a Hospital Level of Care
21. A nursing home cannot meet Eric Radaszewski’s medical needs. (Peters Testimony, Tr. pp. 117-118, 138, Pl. Exh. 40).
22. Eric Radaszewski’s medical condition is very complex, and requires both more extensive nursing services and more highly skilled nursing services than are available in a
1 The terms Home Services Program (HSP) and Persons with Disabilities (PWD) were used interchangeably at trial. For purposes of these Proposed Findings of Fact and Conclusions of Law, plaintiff uses the term Home Services Program (HSP).
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nursing home. (Peters Testimony, Tr. 117-118, 138; Pl. Exh. 40, pp. DHS 10097-10098). 22a. Eric lacks the brain functions that regulate the systems around the body, in
particular the brainstem and pituitary functions which are vital to maintaining balances and normal function around the body. (Peters Testimony, Tr. p. 108, ln. 17-21). Eric has no meaningful pituitary gland function, has an active seizure disorder, and is in a chronic disease state with a chronic immune suppressive condition that causes him to be very prone to infections. (Peters Testimony, Tr. p. 106, ln. 9 - 18). Eric has suffered recurrent bouts of pneumonia, sepsis, urinary tract, soft tissue and other infections. (Peters Testimony, Tr. p. 109, ln. 6 - 14; Pl. Ex. 28A, Certification Period 6/1/07 - 7/30/07, p. 2; Pl. Exh. 29A).
22b. Because of the hormones that he has been given to compensate for his lack of a pituitary gland function, Eric has developed deformities of his bones and spinal column. He has developed a progressive spinal deformity which is affecting his ability to breathe. (Peters Testimony, Tr. p. 106, ln. 19 through p. 107, ln. 2). He has trouble breathing properly and is prone to aspirating food into his lungs. (Peters Testimony, Tr. p. 106, line 22-23). Eric is wheelchair dependent, and in efforts to increase his mobility has suffered bone fractures. (Peters Testimony, Tr. p. 109, ln. 24 through p. 110, ln 4).
22c. Eric has limited ability to communicate, and is unable to convey his symptoms. (Peters Testimony, Tr. p.109, line 16 -19)..
22d. Eric has a very complex set of medications. He needs 20 - 25 medications on a daily basis and ten additional medications given to treat various symptom as needed. (Peters Testimony, Tr. p. 110, ln. 6 - 24). He has a PICC line for intravenous administration of
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medication and nutrition, and from which blood is drawn. (Peters Testimony, Tr. p. 110, ln. 9 14). He is prone to problems from interactions between the medications he receives. The administration of the medications has to be monitored constantly for adverse reactions. They can cause liver inflammation, stress on Eric’s kidneys and further bone marrow suppression. (Peters Testimony, Tr. p. 110, ln. 25 through p. 111, ln. 12).
22e. Eric requires one-on-one skilled nursing care on a continuous basis. ( Pl. Exh. 28A, Physician’s Plans of Treatment for certification periods August 5. 2002 through July 30, 2007; Pl. Exh. 40, pp. DHS 10096-10098; Pl. Exh. 1,3,4,5,6,8,9,11,14).
22f. Nursing homes do not have sufficient staffing to meet Eric’s needs. (Peters Testimony, p. 117, ln.17 through p. 118, ln.24).
23. Eric Radaszewski would be too vulnerable to infection in a nursing home. (Peters Testimony, Tr. p. 118, ln 25 through p. 119, ln. 10).
24. In 2000, an HFS hearing officer made a number of factual findings about Eric Radaszewski’s eligibility for the Home Services Program and the level of care that Eric Radaszewski requires, including the following:
A. Grievant is a 20 year old man who was diagnosed with a medulloblastoma in 1992. He underwent surgery and chemotherapy for that condition. As a result of that condition and treatment for that condition, he has many physical disabilities and has lost both brain and bodily functions. He has been cared for at home for the past 5 years through funding from the Illinois Division of Specialized Care for Children (DSCC). This care, plus the admirable efforts of his parents, has allowed Grievant to be cared for in his home. Grievant wishes to be maintained in his home with his family, this is also his parents’ wishes.
.... H. The uncontradicted evidence submitted by Grievant [Eric] is that the Grievant would be at risk of danger if he should be placed in a nursing home. Grievant's
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doctor testified that Grievant needs substantial one on one nursing care to survive. He is medically fragile, prone to infections, immobilized, catheterized and relies on oxygen. A registered nurse is required to look for problems before they become “full blown and he crashes,” according to Grievant's doctor. His immunological responses were severely compromised due to earlier radiation and chemotherapy, so skilled nursing care is a “question of survival, not a question of doing well.” The physician strongly urged that Grievant be given the funds to support 24 hours per day of skilled nursing care. Placing Grievant in a nursing home facility of the type suggested by the State, according to the physician, would result in Grievant being seriously medically compromised, which would lead to many hospitalizations. I. Grievant's physician's opinion was supported by the registered nurse in charge of Grievant's care. He described Grievant's medical needs in detail. Grievant has no sense of thirst, so his hydration must be carefully monitored in order to avoid serious medical complications. Although Grievant has difficulty swallowing, he can be given soft food, but only under careful conditions. His nutrition must be carefully monitored. Grievant cannot protect his airway by turning his head; any aspiration of food, liquid or medicine can become a medical emergency. Chronic sinus infections lead to sepsis, which can be rapid and acute. Grievant also has osteoporosis and is in danger of breaking bones. His risk of injury is high because he sometimes forgets he cannot walk. His short-term memory is not good and he is often confused. He also has difficulty with urination and elimination, which if left untreated, can result in medical emergencies. Grievant has to be under constant surveillance
J. According to the expert witness offered by Grievant, Grievant could not get the level of required nursing care in a nursing home facility, including the facility suggested by the State (Alden Lincoln Park Nursing Facility). In her assessment for this hearing, the expert contacted several nursing homes (including Alden) and asked about the level of care provided. According to this witness, none would provide the level of care need by Grievant: 24 hour [s] per day by skilled clinical nurses. She based her assessment on the Grievant's medical file, her observation of Grievant, and her 20 years of experience as a skilled nursing professional. .... (Pl. Exh. 40, p. DHS 10097-10098).
25. While Eric participated in the MFTD, state officials repeatedly found, based on
detailed and extensive information about Eric’s medical condition and nursing needs, that the
alternative care setting for him if home care had to be abandoned was a hospital. (Pl. Exh. 1,p.
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HFS 006929; Pl. Exh.3, p. HFS 006979, Pl. Exh. 4, p. HFS 007705; Pl. Exh. 5, p. HFS 007726; Pl. Exh. 6, p. HFS 007012; Pl. Exh.8, p. HFS 007775; Pl. Exh. 9, p. HFS 007877; Pl. Exh. 12, p. HFS 001634). HFS’ physician consultant, Dr. Pfeiffer, specifically noted that a hospital would be the alternate care setting for Eric. (Pl. Exh. 9, p. HFS 007877).
26. Eric Radaszewski continues to require a hospital level of care. (Peters Testimony, Tr. p. 115, line 22 to p. 116, line 3).
C. Eric Requires The Equivalent of One-on-One Skilled Nursing Care in Whatever Setting He Would Be Placed
27. If institutionalized, Eric Radaszewski would require the equivalent of the privateduty nursing care that he has received at home. (Proposed Findings of Fact above, 21 through 26).
28. A hospital setting would provide the equivalent care to the care Eric receives at home with monitoring devices, telemetry and the increased nursing staffing available in hospitals. (Peters Testimony, Tr. p. 115, ln. 22 to p. 116, line 3, p. 136, ln. 9 through 23).
E. Extensive One-on-One Nursing Services Are Included in HSP Service Plans 29. Although HFS may not refer to the skilled nursing services available under the HSP as private duty nursing, HFS can and does make available funding for extensive one-on-one skilled nursing in the home to adult participants in the HSP, and HSP service plans may include 8 or more hours per day of skilled nursing care. (Ginder Testimony, Tr. p. 225, ln. 1-7). 30. The only limitation on the number of hours per day of skilled nursing care that may be included in an individual’s HSP service plan is the fixed cost cap assigned to the individual.
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(Ginder Testimony, Tr. p. 224, ln. 14-25). D. Eric Radaszewski is a Qualified Person within the meaning of the ADA. 31. Eric Radaszewski is qualified for the HSP in the sense that he has severe long-term
disabilities. (Peters Testimony, Tr. pp, 100-139, Pl. Exh. 40, Bates pp. DHS 10096-10098, Pl. Exh. 28A; Pl. Exh. 29A; Pl. Exh. 1,3,4,5,6,8,9,11,14).
32. Eric Radaszewski is qualified for the HSP in the sense that he is at risk for long term institutionalization. (Peters Testimony, Tr. p. 135, ln. 1 through 10, Pl. Exh. 40, pp. DHS 10096-10098, Pl. Exh. 28A; Pl. Exh. 1,3,4,5,6,8,9,11,14; Pl. Exh. 29A).
33. The State found Eric Radaszewski eligible for the HSP. (Pl. Exh. 40, p, DHS 10097, Finding of Fact C; Stipulation of the Parties with respect to Def. Exh. 46 as stated by the Court at Tr. p. 273, ln. 4-10).
34. Eric Radaszewski is eligible for and a participant in the Illinois Medicaid Program. (Proposed Finding of Fact, 3, above).
35. Eric Radaszewski is qualified for the HSP in the sense that home care is appropriate for him. (Proposed Findings of Fact 11 through 17, above; Peters Testimony, p. 115, ln. 7-21).
E. The Cost of Eric’s Continued Care at Home Would Not Exceed the Cost of Care at the Hospital Level He Requires
36. The cost for Eric’s continued care at home would not exceed the anticipated cost of caring for him in an institutional setting at the hospital level of care that he requires.
36a. HFS repeatedly determined that the cost of Eric’s care in an institution would exceed the cost of his care in the community, including both the 16 hours per day skilled nursing he receives at home plus other ancillary medical costs. (Pl. Exh.1, p. HFS 006934-6935; Pl. Exh.
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Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 10 of 26 PageID #:1948
3, p. HFS 006981; Pl. Exh. 4, p. HFS 007707; Pl. Exh.5, p. HFS 007711; Pl. Exh. 6, p. HFS 007014; Pl. Exh. 9, p. HFS 007869). For example, in its last cost estimate preceding Eric’s 21st birthday, the State estimated the institutional cost of his care if he were not cared for at home to be $29,330.40 per month ($968/day), while the cost of his care plan including 16 hours nursing services per day, supplies, equipment and other therapies totaled $20,868.19 per month ($688.71/day). (Pl. Exh. 14, p. HFS 007986 ).
36b. According to defendant’s witness Matthew Werner, the cost of Eric’s care in 2005 (the most recent year with complete data) was $20,499 per month ($676.53 per day). (Def. Exh. 3, p. HFS 009601; Werner Testimony, Tr. p. 566, ln. 19 through 20, p. 568, ln. 23 through 569, ln.4).
36c. The average Medicaid reimbursement rate for hospital stays longer than 120 days for persons age 21 or older was $1428 per day in July 1, 2004 through October 28, 2005 and hospital reimbursement rates have not decreased since that time. (Pl. Exh. 46, Ginder Testimony, Tr. p. 236, ln. 4 to p. 237, ln. 3).
36d. Under the Illinois Medicaid Program, HFS pays for long-term care for adults in the institutional setting they require, including skilled nursing facilities and hospitals. (Pl. Exh. 45, Paragraph 33 of the Amended Answer in Sidell v. Maram; Pl. Exh. 45A, Paragraph 33 of the Complaint in Sidell v. Maram).
36e. The Illinois’ Medicaid program covers medically necessary hospitalization for adults. (Kopel Testimony, Tr. p. 209, ln. 16 through p. 210, ln. 2).
36f. Illinois does not own and operate facilities specifically for long-term care of persons with disabilities other than veterans nursing homes. (Kopel Testimony, Tr. p. 201, ln. 2-16).
10

Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 11 of 26 PageID #:1949
Illinois’ Medicaid program reimburses providers of medical services; it does not own and operate facilities. (Kopel Testimony, Tr. p. 201, ln. 17 through 20).
F. The Relief Plaintiff Seeks Would Not Fundamentally Alter Illinois’ Programs and Services
37. The relief plaintiff seeks would not fundamentally alter Illinois’ programs and services:
37a. Eric Radaszewski requires a hospital level of care. His needs are not comparable to those of Medicaid recipients whose medical needs are currently being met in nursing homes or to those of HSP participants whose needs can be met at a nursing home level of care.
37b. On average, only 10 persons age out of the MFTD per year. (Testimony of Barbara Ginder, Tr. p. 230, ln. 16 through p. 231, ln. 5).
37c. State officials at DHS and HFS examining the problems of participants aging out of the MFTD, which includes participants who require a hospital level of care, identified Eric Radaszewski’s condition as unique even among persons who have aged out of the MFTD. (Ginder Testimony, Tr. p. 392, ln. 24 through p. 393, ln. 5).
37d. The HSP is very cost effective. (Ginder Testimony, Tr. p. 388, ln. 18 through p. 392, ln. 6). The State saves money by keeping people in the community. (Ginder Testimony, Tr. p. 388, ln. 21 through 23). With respect to 2005, HFS reported to the federal Centers for Medicare and Medicaid Services that there were 19,827 participants in the waiver, that the cost per participant for care in the community was $19,140, while the estimated cost for care in the institutional setting was $32,816 per participant, a savings of $13,676 per participant (in total, a projected costs savings of $271,154,052). (Ginder Testimony, Tr. p. 388, ln. 24 through 390, ln.
11

Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 12 of 26 PageID #:1950
4; Def. Exh. 16, p. HFS 301250). Plaintiff’s request for relief can be accommodated within this program.
37e. HFS has flexibility to modify its practices to accommodate the relief plaintiff seeks. It could develop a very narrowly tailored exception to meet Eric Radaszewski’s needs. For example, without any modification in its HSP rules or waiver, HFS applied exceptional care rates, categories of enhanced rates for nursing homes, for some participants in the HSP. (Ginder Testimony, p. 225, ln. 8-16, p.226, ln. 24 through p. 227, ln. 21 ). The top exceptional care rate was approximately $10,000, almost twice the $4593 cost limit imposed on Eric Radaszewski. (Ginder Testimony, Tr. p. 385, ln. 9 through 21). HFS could add a similar exceptional care category to meet Eric Radaszewski’s needs.
37f. Illinois law authorizes exceptional care rates up to the amount of a hospital rate. 305 ILCS 5/5-5.8a(a)(“Payment for exceptional medical care shall not exceed the rate that the Illinois Department would be required to pay under the Medical Assistance Program for the same care in a hospital.”).
37g. The State has flexibility to work around problems to meet the needs of persons who have medical complexity. (Ginder Testimony, p. 382, ln. 8-11). Effective January 1, 2007, the exceptional care rates that previously were applied to reimburse nursing homes to care for persons falling within the categories of exceptional care needs, were terminated when the Illinois Medicaid program converted its nursing home reimbursement rates to a new reimbursement scheme. (Ginder Testimony, Tr. p. 380, ln. 9 through p. 382, ln 11). HFS, however, continues to apply exceptional care rates to some HSP participants even though such exceptional care rates are not in fact current nursing home rates and are fictional rates. (Ginder Testimony, Tr. 381, ln.
12

Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 13 of 26 PageID #:1951
23 through p. 382, ln 7). State officials acknowledge that apart from this lawsuit, Illinois needs to make a decision how it is going to handle the needs of medically complex persons in the HSP given that exceptional care rates no longer exist. (Ginder Testimony, Tr. p. 27, ln. 3 through 15).
37h. There is no federal requirement that every person in a waiver have a service plan that costs less than care in a nursing facility. (Ginder Testimony, Tr. p. 378, line 10 through 23). The federal government does not tell the state how to define a nursing facility level of care. (Ginder Testimony, Tr. p. 378, ln. 13 through 16).
37i. With respect to a waiver, the state can choose whether to show that the cost for each person in the waiver is less than the alternate institutional cost, or to show cost neutrality over the entire waiver population, allowing the cost of some persons to exceed the projected institutional cost. (Ginder Testimony, Tr. p. 378, ln. 22 through p. 379, ln. 11).
37j. The federal government has encouraged states to use their home and community based waiver options to try and achieve community integration under the Supreme Court’s decision in Olmstead. (Ginder Testimony, Tr. p. 378, ln. 15 through 25, Pl. Exh. 51, pp. HFS 300991, 301003).
37k. The federal government has encouraged states to work with the federal government to overcome hurdles in rules and regulations that prevent integration in the community. (Ginder Testimony, Tr. p. 378, ln. 1 through 5, Pl. Exh. 51, p. HFS 301003).
37l. The Illinois legislature approved a pilot project and $1 million funding in state fiscal year 2007 (July 1 2006 to June 30, 2007) to address the needs and provide additional services to persons aging out of the MFTD, but to the date of trial, Illinois had not adopted any rules to provide any additional services under the pilot project. (Pl. Exh. 54, Ginder Testimony,
13

Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 14 of 26 PageID #:1952
p. 230, ln. 6 through 15). 38. Defendant’s fundamental alteration defense is based on cost projections of two expert
witnesses, Todd Menenberg and Matthew Werner, who testified on behalf of defendant. 39. Todd Menenberg, is a managing director at Navigant Consulting and a certified
public accountant. (Tr. p. 399, ln. 11, p. 400, ln. 13 - 14). He testified that if Eric’s mother prevails and obtains the relief sought, the State would be obligated to reimburse approximately $200,000,000 or more annually above what it currently pays to participants in the HSP who would request and receive more waiver services (Tr. p. 421, ln. 1 - 19) and $32,000,000 to $33,000,000 more for persons residing in nursing facilities who would return home if there were no controls on their home services. (Tr. p. 458, ln. 6 through 8, ln. 24 through 25).
40. The Court finds that the methodologies that Mr. Menenberg used in projecting the cost to the State if Eric were to prevail in this case are not reliable and do not assist the Court in determining the existence of a fundamental alteration.
40a. With respect to persons participating in the HSP, Mr. Menenberg’s opinion consists solely of calculations without any supporting rationale relating his methodology to persons similar to Eric Radaszewski. (Tr. p. 426, ln. 9 through 20). He calculates that the reimbursement rate Eric is requesting - 16 hours a day of skilled nursing - is 250 percent of the $4,593 monthly cost cap approved for Eric in 2000. His calculation is based on the unsubstantiated premise that if Eric is permitted to exceed the cost cap imposed for his care plan, then all 26,000 participants in the HSP would somehow be entitled to get services up to their service cost maximum, or 10%, 20%, or 250% of their service cost maximums. (Menenberg Testimony, Tr. p. 421, ln. 1 through 19, p. 426, ln. 15 through 20, p. 430, ln. 3 through 18). Mr. Menenberg’s methodology
14

Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 15 of 26 PageID #:1953
does not attempt to identify any persons in the HSP who need the amount of services that Eric needs. (Tr. p. 465, ln. 19 through 24). Rather, Mr. Menenberg’s methodology of is to take the number of HSP recipients and calculate the benefits they are receiving now and the maximum benefits they could receive, whether or not the HSP participants need additional care or services. (Tr. p. 449, ln. 11 through 16). Mr. Menenberg provides no explanation as to why utilization review would be eliminated other than to reference discussions with “the state” and his experience that if you offer people services at no cost to them, they will avail themselves of such services. (Tr. p.422, ln. 23 - p. 423, ln. 2). Although Mr. Menenberg concedes that plaintiff is seeking intensive nursing services that are medically necessary for Eric (Tr. p. 465, ln. 6 through 7, p. 439, ln. 9) and that the “overwhelming majority” of HSP participants would not require Eric’s intensive nursing care, he nonetheless concludes that HSP participants would request and receive other waiver services such as home health care, respite, vacuuming, cleaning and preparing meals. (Tr. p. 439, ln. 3 through 14, p. 441, ln. 6 through 8).
40b. Plaintiff’s rebuttal expert, Samuel Flint, Ph.D., assistant professor of public policy at Indiana University Northwest, and a medicaid and health policy expert, testified that medical necessity is the basis for private and public health insurance such as Medicaid. (Tr. p. 604, ln. 911, p. 605, ln. 7-10, p. 646, ln. 19 through p. 647, ln. 3). Dr. Flint explained that Mr. Menenberg’s data showed that 97 percent of HSP participants had service care plans that cost less than their service cost maximums, and that under the existing HSP, if they needed more services they could ask for them. (Tr. p. 645, ln. 21 through 25). In response to a question from the Court, Dr. Flint testified that if current HSP recipients were to request additional services, their requests would be subject to the presently existing utilization review process. (Tr. p. 646,
15

Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 16 of 26 PageID #:1954
ln. 11 through 16). 40c. Because Eric is requesting medical services that he needs, his circumstances are
different from those persons in Mr. Menenberg’s calculations who do not medically need the hypothetical waiver services that Mr. Menenberg assumes they would request. Mr. Menenberg concedes that he has no reason to believe that persons participating in the HSP have service plans that are insufficient to allow them to remain safely in the community. (Tr. p. 505, ln.. 11 through 15). Eric is unlike other waiver recipients. Matthew Werner testified that children participating in the MFTD waiver were at the high end of medical need. (Tr. p. 587, ln. 4) and that Eric was at the high end of medical need of the participants in the MFTD Waiver. (Tr. p. 587, ln. 20 - 588, ln. 11). Barbara Ginder, the Chief of HFS’s Bureau of Interagency Coordination, testified. that at a meeting attended by staff from HFS and DHS Bureau of Home Services that Eric Radaszewski was identified as a person unique and different from other persons that had medically fragile and technology dependent needs. (Tr. p. 392, ln. - p. 393, ln. 5).
40d. With respect to his projection that if plaintiff prevails, the State will also incur $32,000,000 to $33,000,000 in additional cost for persons who are currently in nursing homes and who may want to return to the community, Mr. Menenberg does not identify persons in nursing homes whose needs are not being met at the nursing home level of care they currently receive. (Tr. p. 515, ln. 9 through 22). Mr. Menenberg conceded that he did not think that any of the affected current nursing home population he identified in his opinion need as much nursing care as Eric needs. (Tr. P. 465, ln. 19 through 14). His analysis does not attempt to compare or relate the needs of persons already receiving care in nursing homes with Eric Radaszewski’s need
16

Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 17 of 26 PageID #:1955
for care. 40e. Mr. Menenberg’s analysis with respect to the nursing home population, by his own
testimony, does not meet statistical standards. (Tr. p. 459, ln. 19 through 20). Dr. Flint testified that the standard approach used by businesses and insurers to determine anticipated expenses is actuarial methodology that takes into account the number of people who are covered for any particular services, the services that are covered, the limitations on those services, the anticipated utilization of those services, and the cost of administration. He testified that HFS used actuaries on a regular basis for purposes of negotiating such items as HMO rates. (Tr. p. 621, ln 21 through p. 622, ln.14). Mr. Menenberg did not use an actuarial analysis. (Tr. p. 621, ln.. 7 through 11). Instead he employed methods that do not provide the Court with reliable cost projections to determine the existence of a fundamental alteration.
40f. Mr. Menenberg’s testimony regarding his methodology was unclear. He testified that he used the responses to three questions on the Minimum Data Set (MDS), a questionnaire that all nursing facilities complete quarterly for each resident. (Tr. p. 460, ln. 4 through 10). Those questions were (1) whether the resident indicated a preference to return to the community; (2) whether the resident had a support person positive towards discharge; and (3) whether the resident’s stay at the facility was projected to be greater than 90 days. (Tr. p. 460, ln. 11 through 20). He first testified that 216 of approximately 9000 nursing facility residents answered the three questions in a manner that would result in their inclusion in his cost projections. (Tr. p. 461, ln. 4). Subsequently, he testified that 1100 of the 9000 residents answered these questions in a manner which would result in their inclusion. (Tr. p. 461, ln.. 8 through 9, p. 461, ln. 24 through p. 462, ln. 2). In response to the Court’s question of how many people answered this
17

Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 18 of 26 PageID #:1956
form, Mr. Menenberg responded, “1100.” (Tr. p. 463, ln. 19 through 20). 40g. Dr. Flint testified that Mr. Menenberg did not find 1100 persons who answered the
three questions that would result in inclusion. Rather, less than 216 persons had answered the questions in the sought for manner. Mr. Menenberg arrived at the 1100 person number by undertaking an extrapolation and assuming that all 1100 persons would have answered the three questions in the same manner. (Tr. p. 632, ln. 24 through p. 633, ln. 3). Mr. Menenberg’s 216 figure was high because the MDS’s of 193 of the 216 identified by Mr. Menenberg, indicated a discharge date of “uncertain” in response to the third question. (Tr. p. 632, ln.10 through16).
40h. The methodology employed by Mr. Menenberg with respect to nursing facility residents was non-random judgmental sampling used by accountants and CPA’s to analyze historical data when there is incomplete information. (Tr. p. 634, ln. 8 through 17). Dr. Flint testified that it is explicit in the literature that it is impermissible to extrapolate from a judgmental sample because it is a non-random sample. (Tr. p. 634, ln. 17 through 20, p. 635, ln. 24 through 636, ln. 12).
40i. Additionally, Mr. Menenberg’s chosen methodology with respect to the nursing home population violated statistical principles that ensure reliability in the following respects.
40(i)(1). The methodology looked at the MDS’s of all of the approximately 9000 nursing facility residents under age 60. It was therefore a census, not a sample. (Flint Testimony, Tr. p. 627, ln. 2 through 5). While principles of statistics permit extrapolation from a random sample, they do not permit taking a portion of a census called a subset and extrapolating from that number to a larger population. (Tr. p. 627, ln. 9 through12). The rationale is that everyone was asked the three questions and one cannot supply missing data and assume that the persons who
18

Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 19 of 26 PageID #:1957
did not supply the information are similar to the persons who did and would answer the same. (Tr. p. 627, ln. 14 through p. 628, ln. 18).
40(i)(2). Mr. Menenberg’s methodology estimated costs by sampling 28 of the 216 cases to arrive at an estimate for the entire census of the approximately 9000 persons. (Tr. p. 633, ln. 20 through 24). Dr. Flint testified that three of the 28 (almost 10 percent) of the persons sampled were being reimbursed by an exceptional care rate while in the entire nursing facility population of 47,000 only 540 or roughly one percent had an exceptional care rate. (Tr. p. 636, ln. 19 - 25). Nursing facilities received exceptional care reimbursement rates at a higher level for residents who had exceptional or extraordinary medical conditions that required increased care and a higher rate of reimbursement. (Ginder Testimony, Tr. p. 347, ln. 1 through 14). The costs derived by the sample were therefore biased upwards.
40(i)(3). The methodology used a stratified sample based upon activities of daily living with 21 different strata ranging from the less sick to the most sick. (Tr. p. 467, ln. 11 - 18). Dr. Flint pointed out that eight of the 28 persons sampled were in one strata and of the 20 remaining strata, one had zero persons sampled and the remaining 19 had one person sampled. (Tr. p. 639, ln. 6 through 11). He testified that one cannot extrapolate from one case and that cell sizes of five or less are suspect. (Tr. p. 639, ln. 11 through 20). In response to the Court’s question of the proper size of a representative sample of 9000 persons, Dr. Flint testified that two percent or about 180 persons would be appropriate. (Tr. p. 640, ln. 1 through 4).
40(i)(4) In response to questions by the Court, Mr. Menenberg testified that the 28 persons were chosen by HFS staff and he did not know who chose them. He did not participate in the determination of which 28 persons to review. (Tr. p. 468, ln. 23 through 469, ln. 10).
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Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 20 of 26 PageID #:1958
40(i)(5) An HFS nurse, Roberta Sue Coonrod, using solely the MDS’s of the 28 persons sampled, assessed the medical needs of each of the individuals and wrote 28 service plans. (Coonrod Testimony, Tr. p. 534, ln. 13 through 16). Dr. Flint testified to the unreliability of this method. He explained that a conventional method for undertaking such assessment would involve two people who would work independently and then review their assessments for consistency. (Tr. p. 640, ln. 19 through 641, ln. 4). He also noted, and Mr. Menenberg conceded, that Ms. Coonrod’s service plans did not take into account available care at home from family which would have reduced care needs included in the 28 service plans. (Flint Tr. p. 641, ln. 5 through 14, Menenberg Tr. p. 475, ln. 20 through p. 476, ln. 9). Ms. Coonrod testified that her assessments did not take into account care available at home (Tr. p. 547, lns. 15 through 16), that she did not have information on the specific medications that the 28 individuals would take (Tr. p. 548, ln. 13 through 14), and that normally in assessing nursing home residents she would not rely solely on the MDS, but would observe the residents and interview them. (Tr. p. 549, ln. 7).
40(i)(6). Mr. Menenberg’s methodology for determining the cost of persons residing in nursing facilities is based on the service plans that Ms. Coonrod prepared. His methodology for determining cost of persons in the HSP was based on his view that service plans would not mean anything if Eric were to prevail and would be essentially eliminated. His methodologies are inconsistent and contradictory.
41. Matthew Werner, the former advisor to defendant on healthcare finance and former chief of HFS’s Bureau of Rate Development and Analysis (Tr. p. 555. lns. 8 - 16, p. 556, lns. 1718), testified that if Eric were to receive 24 hours of skilled nursing in his home, the potential additional cost to the State for persons residing in nursing facilities returning home and receiving
20

Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 21 of 26 PageID #:1959
24 hours of skilled nursing and persons participating in the HSP receiving the same reimbursement as Eric could be 2.2 to 2.3 billion dollars annually (Tr. p. 560, ln 25 through p. 561, ln. 4, p. 575, ln.22 through25).
42. The Court finds that the methodology that Mr. Werner used in projecting the cost to the State if Eric were to prevail in this case is not reliable and does not assist the Court in determining the existence of a fundamental alteration.
42a. Mr. Werner’s methodology makes no attempt to project the number of persons who would leave nursing facilities or the actual amount of cost of services to the State. Rather his model estimated the potential maximum impact if Eric were to receive 24 hours of nursing care and persons residing in nursing facilities received 24 hours of nursing care at home and persons in the HSP received 24 hours of nursing services instead of their present service plans. (Tr. p. 561, ln. 7 through12, Defendant’s Exhibit 3, p. HFS009599). He provided potential maximum impact cost figures of the additional cost to the State if 1, 10, 20 or 30 percent of these two groups received Eric’s level of care (Defendant’s Exhibit 3, p. HFS009601) and set forth his projections on page two of his Report at a 10 percent shift level. (Defendant’s Exhibit 3, p. 009599). He testified that he was not predicting any shift. (Tr. p. 589, ln.. 6 through 9). He testified that he was not analyzing or predicting actual cost. (Tr. p. 590, ln. 5 through 7, p. 585, ln. 13 through 16). He provides calculations but no opinion as to any impact on the State’s program if plaintiff prevails.
42b. Mr. Werner did not use standard actuarial processes which would have statistically determined the estimate of expected cost based on expected utilization, not the maximum dollar exposure. (Flint Testimony, Tr. p. 656, ln. 19 through 22). Mr. Werner projected results that
21

Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 22 of 26 PageID #:1960
varied significantly from Mr. Menenberg’s estimate of $32-33 million. Mr. Werner projected a cost impact of 1.2 billion dollars for persons who might leave nursing facilities while Mr. Menenberg projected 33 million for that same group. (Tr. p. 654, ln. 15 through 25).
42c. Mr. Werner testified that he did not know how many persons would qualify to receive Eric’s level of services. (Tr. p. 570, ln. 23 through p. 571, ln. 1).
42d. Mr. Werner testified that he did not know if anyone would shift from nursing facilities, only that it is likely that people would shift. (Tr. p. 571, ln. 3 through 4). He testified that he did not know how many people would shift. (Tr. p. 572, ln. 7 through 9).
42e. Mr. Werner testified that he had no reason to believe that persons in nursing facilities did not have their medical needs or care needs met at their facilities or that persons in the HSP did not have their need for care met under their existing service plans. (Tr. p. 583, ln. 23 through p. 584, ln. 10).
42f. Mr. Werner’s analysis did not look at the medical conditions of the persons in these two groups or the severity of their medical needs. (Tr. p. 584, ln. 11 through 19).
42g. Mr. Werner did not have knowledge of Eric’s medical condition or needs or how those conditions compare to the needs of persons in nursing homes or the HSP. (Tr. p. 584, ln. 24 through p. 585, ln. 9).
42h. Mr. Werner’s analysis ignored medical necessity. (Flint Testimony, Tr. p. 653, ln. 14 through 16) and assumed that a judgment in Eric’s favor would somehow obviate medical necessity and utilization review. (Flint Testimony, Tr. p. 654, ln. 8 through 14). Neither Mr. Werner’s testimony nor his report provides any rationale or explanation why medical necessity and utilization review would be eliminated.
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Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 23 of 26 PageID #:1961
II. Proposed Conclusions of Law 1. Title II of the Americans with Disabilities Act provides that “no qualified individual
with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. §12132.
2. A “qualified individual with a disability” means “an individual with a disability who, with or without reasonable modifications to rules, policies or practices, ... or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by the public entity.” 42 U.S.C. 12131(2).
3. Eric Radaszewski is a qualified individual with a disability within the meaning of Title II of the Americans with Disabilities Act (ADA). 42 U.S.C. §12132.
4. HFS is a public entity within the meaning of Title II of the ADA. 42 U.S.C. § 12131(1)(a)(A),(B).
5. Under federal regulations implementing the ADA, public entities must administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 28 C.F.R.§35.130(d).
6. The “most integrated setting appropriate” is defined as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible. 28 C.F.R. pt. 35, App. A, p. 450.
7. Public entities must make such modifications as are reasonable to avoid unduly segregating persons with disabilities, but need not make such modification if it can show “that making the modification would fundamentally alter the nature of the service, program, or
23

Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 24 of 26 PageID #:1962
activity.” 28 C.F.R. §35.130(b)(7). 8. The Rehabilitation Act applies to programs which receive federal assistance. 29
U.S.C. §794a. The Rehabilitation Act also prohibits discrimination against persons with disabilities. Id.
9. Regulations implementing the Rehabilitation Act also require that recipients of federal funds administer their programs and activities “in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R. §41.51(d).
10. Under regulations implementing the Rehabilitation Act, recipients of federal funds must make such modifications as are reasonable to avoid segregating persons with disabilities, but need not make such modification if it can show that to do so would be an undue hardship. 28 C.F.R. §41.53.
11. The relevant provisions of the ADA and the Rehabilitation Act and their implementing regulations are construed in the same manner. Radaszewski v. Maram, 383 F.3d 599, 607 (7th Cir. 2004).
12. Plaintiff is entitled to relief on her claim under the ADA and the Rehabilitation Act because: (1) the state’s treatment professionals have found that community-based treatment is appropriate for her son Eric Radaszewski; (2) Eric, through his guardians, does not oppose community treatment; and (3) Eric’s placement in the community with the nursing care plan he requires can be reasonably accommodated taking into account the State’s resources and the needs of others with similar disabilities. Olmstead v. L.C. ex real. Zimring, 527 U.S. 581 (1999) and Radaszewski v. Maram, 383 F.3d 599, 608 (7th Cir. 2004).
13. Under the criteria set out in Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004),
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Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 25 of 26 PageID #:1963
Eric’s request for relief may be accommodated in that (1) a nursing facility would not meet Eric’s medical needs; (2) Eric requires a hospital level of care; (3) the care he would receive in a hospital is the equivalent of the home nursing care he receives, and (4) Eric is a “qualified individual” under the Americans with Disabilities Act in that he meets the essential eligibility requirements of HFS’s waiver program known as the Home Services Program (HSP) because he has long term disabilities, he is eligible for Medicaid, he is at risk of placement in an institution; his home is an appropriate care setting, and the cost of his care at home does not exceed the cost of care at the hospital level of care he requires.
14. Defendant has not shown that the relief plaintiff seeks would fundamentally alter the State’s programs or services.
Respectfully submitted, s/Sarah Megan Sarah Megan #6182931 Attorney for Plaintiff Prairie State Legal Services, Inc. 201 Houston St., Suite 200 Batavia, IL 60510 (630) 232-9420
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Case: 1:01-cv-09551 Document #: 164 Filed: 10/17/07 Page 26 of 26 PageID #:1964
Certificate of Service I hereby certify that on October 17, 2007, I presented the foregoing Plaintiff’s Proposed Findings of Fact and Conclusions of Law with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:
Karen Elaine Konieczny Karen.Konieczny@Illinois.gov John E. Huston John.Huston@Illinois.gov Christopher Samuel Gange Christopher.Gange@Illinois.gov
Respectfully submitted, s/Sarah Megan Sarah Megan Bar Number 6182931 Attorney for Plaintiff 201 Houston St., Suite 200 Batavia, IL 60510 Telephone: (630) 232-9420 Fax: (630) 232-9402 E-mail: smegan@pslegal.org
26

 </s> Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 1 of 31 PageID #:1995

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI, Guardian, on )

Behalf of Eric Radaszewski,

)

)

Plaintiff,

)

)

v.

)

)

BARRY S. MARAM, Director of the

)

Illinois Department of Healthcare

)

and Family Services,

)

)

Defendant.

)

No. 01 C 9551 Judge John W. Darrah Magistrate Judge Schenkier

DEFENDANT’S RESPONSE TO PLAINTIFF’S PROPOSED FINDINGS OF FACT AND DEFENDANT’S PROPOSED FINDINGS OF FACT NOW COMES Defendant, BARRY S. MARAM, Director of the Illinois
Department of Healthcare and Family Services, by his attorney, LISA MADIGAN, Attorney General of Illinois, and hereby submits his Response to Plaintiff’s Proposed Findings of Fact and his Proposed Findings of Fact after trial of the case.
RESPONSE TO PLAINTIFF’S PROPOSED FINDINGS OF FACT 1. Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Admitted. 7. Admitted. 8. Admitted.

Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 2 of 31 PageID #:1996
9. Admitted. 10. Admitted, but not relevant.
A. State Officials Have Determined That Home Care Is Appropriate For Eric Radaszewski 11. Admitted in part, deny that skilled nursing care is a service under the MFTD Waiver. 12. Admitted. 13. Admitted in part, deny that services not covered under MFTD Waiver, such as EPSDT services (i.e. nursing services) are approved services under MFTD Waiver. 14. Admitted in part, but not relevant. Deny that skilled nursing care is a service under the MFTD Waiver. 15. Admitted, but not relevant. 16. Admitted. 17. Admitted. 18. Admitted. 19. Admitted. 20. Denied as an opinion unsupported by competent medical testimony. B. A Nursing Home Cannot Meet Eric Radaszewski’s Medical Needs; He Requires A Hospital Level Of Care 21. Denied. 22. Denied. 22a. Admitted. 22b. Admitted. 22c. Admitted. 22d. Admitted.
2

Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 3 of 31 PageID #:1997
22e. Denied. 22f. Denied. 23. Denied as speculative. 24. Admitted that these were the summary of the testimony in the administrative hearing in 2000, but that this testimony is not relevant in this matter. 25. Admitted, but not relevant since the institution for cost comparison under the MFTD Waiver for individuals under the age of 21 is a hospital, whereas the relevant institutional cost comparison for individuals over the age of 21 in the PWD Waiver is a nursing facility. 26. Denied.
C. Eric Requires The Equivalent Of One-on-One Skilled Nursing Care In Whatever Setting He Would Be Placed 27. Denied. 28. Denied. E.[sic] Extensive One-on-One Nursing Services Are Included In HSP Service Plans 29. Deny that skilled nursing services can be equated with private duty nursing, deny that HFS pays for skilled nursing in HSP, and admit that HSP Service Plans may contain skilled nursing services. 30. Admitted. D. Eric Radaszewski Is A Qualified Person Within The Meaning Of The ADA 31. Denied. 32. Denied. 33. Admitted.
3

Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 4 of 31 PageID #:1998
34. Admitted. 35. Denied.
E. The Cost Of Eric’s Continued Care At Home Would Not Exceed The Cost Of Care At The Hospital Level He Requires 36. Denied. 36a. Admitted in part, but not relevant since the institution for cost comparison under the MFTD Waiver for individuals under the age of 21 is a hospital. Plaintiff did not present any evidence that cost in the community after Eric Radaszewski attained the age of 21 would not exceed the cost in a nursing facility. 36b. Admitted, but not relevant because this level of care is provided pursuant to an injunction entered in proceedings in Radaszewski v. Maram, 00 CH 1475, 18th Judicial Circuit, DuPage County, Illinois. 36c. Denied. 36d. Admitted, with the qualification that long-term care payments for those residing in hospitals are paid at long-term care rate. 42 U.S.C. § 1396l; 89 Ill. Admin. Code § 140.569(j). 36e. Admitted. 36f. Admitted. F. The Relief Plaintiff Seeks Would Not Fundamentally Alter Illinois’ Programs and Services 37. Denied. 37a. Denied. 37b. Admitted, but not relevant. 37c. Admitted, but not relevant.
4

Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 5 of 31 PageID #:1999
37d. Admit the first, second, and third sentences of ¶ 37d, but not relevant. Deny the fourth sentence of ¶37d. 37e. Deny the first, second and third sentences of ¶37e as conclusions of law. Admit the fourth sentence of ¶37e, but deny that an exceptional care rate could be applied to Eric Radaszewski, because there is no evidence of record that Eric Radaszewski is ventilatordependent and HIV-positive. Deny the fifth sentence of ¶37e. 37f. Denied as a conclusion of law. 37g. Denied. 37h. Denied. Illinois has chosen the options that 1) every person in the PWD Waiver require a nursing facility level of care, (DX 14 at item No. 2, at 003025), and 2) that the state will refuse to offer home and community-based services to any person for whom it can reasonably be expected that the cost of home or community-based services furnished to that individual would exceed the cost of a nursing facility level of care, (DX 14 at item No. 8, at 003027), and under federal approval of those options, the federally approved PWD Waiver becomes the federal requirement. 37i. Denied. Illinois has chosen the options that 1) every person in the PWD Waiver require a nursing facility level of care, (DX 14 at item No. 2, at 003025), and 2) that the state will refuse to offer home and community-based services to any person for whom it can reasonably be expected that the cost of home or community-based services furnished to that individual would exceed the cost of a nursing facility level of care, (DX 14 at item No. 8, at 003027), and under federal approval of those options, the federally approved PWD Waiver becomes the federal requirement.
5

Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 6 of 31 PageID #:2000
37j. Admitted in part. However, the State has the authority to establish reasonable and appropriate limits on the amount duration, and scope of each service. Moreover, HCBS waivers need only be designed to serve as an alternative to institutionalization for a preponderance of the State’s selected target group. (PX 51, DX 22 at HFS 300997). 37k. Denied, as not an accurate recitation of the statement in the Exhibit, which is limited to a federal review of federal policies and practices. 37l. Denied as a state law claim. 38. Admitted in part, but denied to the extent that those are the only bases of Defendant’s fundamental alteration defense. 39. Admitted. 40. Denied. 40a. Deny the first, third, and sixth sentences of ¶40a. Admit the second, fourth and seventh sentences of ¶40a. Fifth sentence is neither admitted nor denied as nongrammatical. 40b. Defendant denies that Dr. Flint is a “medicaid [sic] and health policy expert,” and that ¶40b is nothing more than a recitation of Dr. Flint’s testimony, which defendant need not admit nor deny the accuracy. (Guidelines for Proposed Findings of Fact). 40c. Deny first sentence of ¶40c. The remainder of ¶40c is a recitation of witness’ testimony, which defendant need not admit nor deny the accuracy, and are not relevant. (Guidelines for Proposed Findings of Fact). 40d. Admitted, but there is no requirement that Menenberg need have performed his study as Plaintiff believes it should have been conducted.
6

Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 7 of 31 PageID #:2001
40e. Admit the first sentence of ¶40e. The second and third sentences of ¶40e are a recitation of witness’ testimony, which defendant need not admit nor deny the accuracy. (Guidelines for Proposed Findings of Fact). Admit the fourth sentence of ¶40e, further stating there is no requirement this be done. Deny the fifth sentence of ¶40e. 40f. Deny the first sentence of ¶40f. The remainder of ¶40f is a recitation of witness’ testimony, which defendant need not admit nor deny the accuracy. (Guidelines for Proposed Findings of Fact). 40g. No response required. ¶40g is a recitation of witness’ testimony, which defendant need not admit nor deny the accuracy. (Guidelines for Proposed Findings of Fact). 40h. Admit the first sentence of ¶40h. The remainder of ¶40h is a recitation of witness’ testimony, which defendant need not admit nor deny the accuracy. (Guidelines for Proposed Findings of Fact). 40i. Denied. 40(i)(1). ¶40(i)(1) is a recitation of witness’ testimony, which defendant need not admit nor deny the accuracy. (Guidelines for Proposed Findings of Fact). 40(i)(2). Admit the first sentence of ¶40(i)(2). The second and third sentences of ¶40(i)(2) are a recitation of witness’ testimony, which defendant need not admit nor deny the accuracy. (Guidelines for Proposed Findings of Fact). Deny the fourth sentence of ¶40(i)(2). 40(i)(3). ¶40(i)(3) is a recitation of witness’ testimony, which defendant need not admit nor deny the accuracy. (Guidelines for Proposed Findings of Fact). 40(i)(4). ¶40(i)(4) is a recitation of witness’ testimony, which defendant need not admit nor deny the accuracy. (Guidelines for Proposed Findings of Fact).
7

Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 8 of 31 PageID #:2002
40(i)(5). Admit the first sentence of ¶40(i)(5). The remainder of ¶40(i)(5) is a recitation of witness’ testimony, which defendant need not admit nor deny the accuracy. (Guidelines for Proposed Findings of Fact). 40(i)(6). Denied. 41. Admitted. 42. Denied. 42a. Admitted. 42b. Admitted, but there is no requirement that standardized actuarial processes be used, that Menenberg and Werner conducted different analyses, and that Plaintiff’s expert did not perform any study. 42c. ¶42c is a recitation of witness’ testimony, which defendant need not admit nor deny the accuracy. (Guidelines for Proposed Findings of Fact). 42d. ¶42d is a recitation of witness’ testimony, which defendant need not admit nor deny the accuracy. (Guidelines for Proposed Findings of Fact). 42e. ¶42e is a recitation of witness’ testimony, which defendant need not admit nor deny the accuracy. (Guidelines for Proposed Findings of Fact). 42f. Admitted, as medical needs are not relevant. 42g. Admitted, as medical needs are not relevant. 42h. Denied.
DEFENDANT’S PROPOSED FINDINGS OF FACT TITLE XIX MEDICAID.
43. In 1965, Congress enacted Title XIX of the Social Security Act to establish the voluntary federal-state health care program known as Medicaid. (Judicial Notice).
8

Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 9 of 31 PageID #:2003
44. A State participating in the Medicaid program is required to satisfy the Secretary of the United States Department of Health and Human Services that it complies with the requirements of federal law. The United States Department of Health and Human Services reimburses a participating State by matching the State's expenditures on the covered services provided through the program. The agreement between the U.S. Department of Health and Human Services and the participating State is evidenced in the State Plan for Title XIX. (Testimony of Francis Kopel, Tr. p. 280; DX 11, 12).
45. After an individual applies for services under Medicaid, and has been determined to be eligible, a medical assistance card is issued to that individual. (Testimony of Francis Kopel, Tr. p. 281).
46. A medical assistance card is, in effect, an insurance card that allows Medicaid eligible individuals to access healthcare from any provider who is enrolled with HFS. (Id.).
47. A provider is an individual or institution that has agreed to provide services in compliance with the Title XIX State Plan, has agreed to accept HFS'reimbursement rates for services covered under the Title XIX State Plan as payment in full, and has agreed to abide by all of the rules and regulations of the Medicaid program. (Id.).
48. A service is covered under Medicaid if it is listed in the Title XIX State Plan as a covered service. (Id. at p. 283).
49. Services under Medicaid are divided into two groups: 1) mandatory services, which the federal government requires the states to provide, and 2) optional services, which may or may not be provided at the option of the state. (Id. at p. 284).
9

Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 10 of 31 PageID #:2004
50. Mandatory Medicaid services include inpatient hospital services, physician services, long-term care (nursing facility) for individuals over 21 years of age, and EPSDT. (Id. at p. 285).
51. Illinois furnishes payment to Medicaid-enrolled providers for all mandatory Medicaid services to eligible persons. (Id. at p. 286).
52. Optional services include, for example, prescription drugs, and private duty nursing. (Id.).
53. Illinois does not furnish payment for all optional Medicaid services. Those optional Medicaid services Illinois does provide under its Title XIX State Plan are checked-off in the State Plan. (Id. at p. 287; DX 11 at 01398).
54. Private duty nursing is continuous and individual one-on-one care provided to a person who has medical need for that care. (Testimony of Francis Kopel, Tr. pp. 290291).
55. Under the Illinois Title XIX State Medicaid Plan, private duty nursing is not a Medicaid covered service. (Id. at p. 291; DX 11 at 001400).
EPSDT. 56. EPSDT is an acronym that means Early and Periodic Screening, Detection and Treatment, as defined by 42 U.S.C. §1396d. 57. Under EPSDT, Illinois is required to provide payment for Medicaid services to Medicaid eligible children (under 21 years of age) for any service that is listed in §1905(a) of the Social Security Act, if medically necessary, including all optional services, whether covered under Illinois Title XIX State Plan or not. (Testimony of Francis Kopel, Tr., pp. 288, 290).
10

Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 11 of 31 PageID #:2005
58. For those services provided under Illinois'Title XIX State Plan that have some limitations, those limitations do not apply to Medicaid-eligible individuals under the age of 21 who receive services as a result of EPSDT. (Id. at pp. 289-90).
59. Adults over the age of 21 years cannot qualify for services under EPSDT. (Id. at p. 290).
THE HCBS-PERSONS WITH DISABILITIES MEDICAID WAIVER. 60. Waivers are grants of authority by which the federal government will allow the State to provide services that are not otherwise covered under the Title XIX State Medicaid Plan. (Testimony of Francis Kopel, Tr. p. 292). 61. In Illinois, home and community-based services for Medicaid eligible persons are only authorized pursuant to Medicaid Waivers granted by the federal government under 42 U.S.C. § 1396n(c). (DX 14 at 3016). 62. Illinois requested a Home and Community-Based Services Medicaid Waiver in order to provide home and community based services to individuals, who, but for the provision of such services, would require a nursing facility level of care, the cost of which would be reimbursed under the approved Medicaid State Plan. The Secretary of HHS approved Illinois’ Home and Community-Based Services Waiver for Disabled Individuals, effective October 1, 2004 through September 30, 2009, pursuant to 42 U.S.C. § 1396n(c). (hereinafter referred to as “Persons with Physical Disabilities Medicaid Waiver” or “PWD”). (Testimony of Barbara Ginder, Tr. p. 325; DX 14 at 3016-17, 3025). 63. The state requested the PWD in order to provide home and community-based services to individuals who, but for the provision of such services, would require a
11

Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 12 of 31 PageID #:2006
nursing facility level of care, the cost of which could be reimbursed under the approved Title XIX State Medicaid Plan. (DX 14, Item 2, at 3025).
64. The PWD Medicaid Waiver targets waiver services to the disabled and to persons under the age of 60 at the time of application. (DX 14, Items 3, 4, at 3025-26).
65. To be eligible for the services authorized by the PWD Medicaid Waiver, an individual must meet the Medicaid eligibility criteria set forth in Appendix C-1 (of the PWD Medicaid Waiver) in addition to meeting the targeting criteria in items 2-4 of the PWD. (DX 14, Item 5, at 3025) (emphasis added).
66. Under the Persons with Disabilities Medicaid Waiver, the State will refuse to offer home and community-based services to any person whom it can reasonably be expected that the cost of home or community-based services furnished to that individual would exceed the cost of a nursing facility. (Testimony of Barbara Ginder, Tr. pp. 327329; DX 14, Item 8, at 3025, 3027).
67. Under the PWD Medicaid Waiver, the amount, duration and scope of services contained in section 1902(a)(10)(B) of the Act is waived, in order that services not otherwise available under the approved Medicaid State Plan may be provided to individuals served as a result of the Waiver. (Testimony of Barbara Ginder, Tr. pp. 331332; DX 14, Item 10, at 3027).
68. The services available under the PWD Medicaid Waiver are not available to all Medicaid eligible persons. Only Waiver-eligible persons can receive waiver services. (Id.).
69. The State has the authority to establish reasonable and appropriate limits on the amount, duration, and scope of each service, and HCBS waivers are only designed to
12

Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 13 of 31 PageID #:2007
serve as an alternative to institutionalization for a preponderance of the State’s selected target group. (DX 22, PX 51 at HFS 300997).
70. Services available under PWD Medicaid Waiver include homemaker, home health aide services, personal care services, respite care, adult day health, environmental accessibility adaptations, skilled nursing, specialized medical equipment and supplies, personal emergency response systems, extended State Plan services (physical therapy services, occupational therapy services, speech, hearing and language services) and home delivered meals. (Testimony of Barbara Ginder, Tr. pp. 332-333; DX 14 at 3028-29).
71. Under the Persons With Disabilities Medicaid Waiver, private duty nursing is defined as “individual and continuous care (in contrast to part-time or intermittent care) provided by licensed nurses within the scope of state law. These services are provided to an individual at home.” (DX 14 at 3053-3054).
72. Under the Persons With Disabilities Medicaid Waiver, as approved in Illinois, private duty nursing is not an included service. (DX 14 at 3028, 3053-54).
73. Under the Persons With Disabilities Medicaid Waiver, skilled nursing is defined as “Consumer directed services in the plan of care, which are within the scope of the State’s Nurse Practice Act and are provided by a registered nurse or licensed practical or vocational nurse licensed to practice in the State and are not otherwise covered through EPSDT.” (DX 14 at 3050).
74. Under the PWD Medicaid Waiver, as approved in Illinois, skilled nursing services are included services. (DX 14 at 3028, 3050).
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Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 14 of 31 PageID #:2008
75. If an individual is eligible for the PWD Medicaid Waiver, that individual is also eligible for Medicaid services covered under Illinois’ Title XIX State Plan. (Testimony of Barbara Ginder, Tr. p. 333).
76. As part of the PWD Medicaid Waiver, the state makes assurances to the federal government that the waiver is being operated in conformance with all express terms of the waiver. (DX 14 at 3030-3033).
77. Failure by the state to comply with the approved waiver may result in a sanction of termination of the waiver. (Testimony of Barbara Ginder, Tr. p. 337).
78. The state has assured the federal government that the agency will provide for an evaluation (and periodic reevaluations, at least annually) of the participant’s need for a nursing facility level of care. The requirements for such evaluations and reevaluations are detailed in Appendix D to the PWD Medicaid Waiver. (DX 14 at 3031, 3082-3094).
79. The federal government requires that all home and community based waivers be cost neutral. In the PWD waiver application, the state outlines its estimates of service cost, number of individuals to be served, and how the waiver compares to the institutional costs of a similar population. (DX 14, Appendix G, at 3123-3142).
80. Factor D is the estimated annual average per capita Medicaid cost for home and community-based services for individuals in the waiver program. (DX 14 at 3125).
81. Factor D1 is the estimated annual average per capita Medicaid cost for all other services provided to individuals in the waiver program. (Id. at 3133).
82. Factor G is the estimated annual average per capita Medicaid cost for hospital, nursing facility, or ICF/MR care that would be incurred for individuals served in the waiver, were the waiver not granted. (Id. at 3135).
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Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 15 of 31 PageID #:2009
83. Factor G1 is the estimated annual average per capita Medicaid cost for all services other than those included in Factor G for individuals served in the waiver, were the waiver not granted. (DX 14 at 3136).
84. Cost neutrality under the PWD Medicaid Waiver for a nursing facility population is demonstrated to the federal government by comparing the sum of Factor D and Factor D1 and comparing them to the sum of Factor G and G1. If the sum of factors D and D1 is less than or equal to the sum of Factors G and G1, the Waiver is cost neutral. (Testimony of Barbara Ginder, Tr. pp. 348-350; DX 14 at 3138, 3139).
85. The federal government allows the state to operate HCBS waivers only if they are cost neutral, i.e., the state is not spending more money than it would pay for that same individual in an institutional setting. (Testimony of Barbara Ginder, Tr. p. 350).
86. Illinois’ PWD Medicaid Waiver is cost-neutral. (DX 14 at 3138-3139; DX 15, 16).
87. The federal government requires the state to comply with all provisions in the federally-approved HCBS PWD Medicaid Waiver, including the appendices attached to the waiver. (Testimony of Barbara Ginder, Tr. p. 341; DX 14, at 3033-3034).
88. Appendix D to the PWD Medicaid Waiver contains the instrument utilized by the agency to evaluate the need for the nursing facility level of care chosen in item No. 2 of the PWD Medicaid Waiver. (DX 14 at Appendix D, at 3076).
89. The Determination of Need (“DON”) evaluates the ability of the individual to perform activities of daily living, and assigns a score that corresponds to a cost equivalent of what services the individual needs would cost, if that person were in a nursing home. (Testimony of Barbara Ginder, Tr. pp. 344, 346; DX 14 at 3082-3089; DX 18).
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Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 16 of 31 PageID #:2010
90. The federal government has never notified HFS that the PWD Medicaid Waiver does not comply with the Americans with Disabilities Act. (Testimony of Barbara Ginder, Tr. p. 362).
91. The federal government has never notified HFS that the PWD Medicaid Waiver does not comply with the Rehabilitation Act. (Id. at pp. 362-63).
THE ILLINOIS HOME SERVICES PROGRAM. 92. An individual applies for home and community based services to the specific program Illinois administers under the Home Services Program (“HSP”). (Testimony of Barbara Ginder, Tr. p. 342). 93. The authorization to provide services to physically disabled Medicaid-eligible persons under age 60 through the HSP derives from the PWD Medicaid Waiver. (Id.). 94. The terms of the PWD Medicaid Waiver control HSP requirements for services to physically disabled Medicaid-eligible persons under age 60. (Id. at p. 343). 95. The Illinois Department of Human Services, Division of Rehabilitation Services, has the day-to-day operational responsibility of implementing the PWD. (Testimony of Barbara Ginder, Tr. p. 341; DX 14 at 3035). 96. DHS implements the PWD Medicaid Waiver though the HSP. (DX 14 at 003035). 97. In order to enroll in the Home Services Program, the individual must, among other things, be eligible for Medicaid, apply for services through the Home Services Program, have a severe disability which is expected to last at least twelve months, be an individual who is in need of long-term care, obtain certification from a physician that the individual is in need of long-term care and that this care can be safely and adequately
16

Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 17 of 31 PageID #:2011
provided in the individual’s home as provided in the service plan developed for the individual, and not require in-home services that are expected to cost more than the costs that the State would pay for institutional care for persons similarly situated. (DX 14 at 3025, 3028-34).
98. The initial step in determining eligibility for HSP is to be assessed by a DHS case manager for a determination of need. (Testimony of Barbara Ginder, Tr. pp. 341342).
99. The instrument used to assess the individual is the Determination of Need (“DON”). (DX 14, at Appendix D, 3082-3090; DX 18, 19; Testimony of Barbara Ginder, Tr. pp. 343-44).
100. A DHS Division of Rehabilitation Services case manager completes the DON. The case manager conducts a mini-mental status examination of the individual and evaluates 15 activities of daily living and independent activities of daily living to determine the score. The impairment of the individual is scored and the support the individual needs the individual has. An individual needs a minimum score of 29 to be eligible for HSP. (Testimony of Barbara Ginder, Tr. p. 344).
101. The DON assessment is also utilized as the preadmission screening to evaluate whether an individual qualifies for admission to a nursing facility. (Id.).
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Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 18 of 31 PageID #:2012

102. Service cost maximums are service cost caps determined by the DON score.

Service cost maximums increase as the DON score increases, (Id. at p. 346), as follows:

DON Range

SCM (monthly).

29-32

$1,249

33-40

$1, 435

41-49

$1,597

50-59

$1, 912

60-69

$2,247

70-79

$2,430

80-100

$2,612

(Testimony of Todd Menenberg, Tr. pp. 415-416).

103. Exceptional care rates were developed to reimburse long-term care facilities

for care rendered to individuals who have exceptional or extraordinary medical needs that

are non-acute, but still require intense nursing services. (Testimony of Barbara Ginder,

Tr. p. 347).

104. The long term care system developed as a way to move people out of

hospital based care to nursing homes. HFS developed exceptional care rates for nursing

homes. The nursing homes then developed specialized units to work with individuals and

provide care at a much higher level of care than nursing homes traditionally provided.

(Testimony of Barbara Ginder, Tr. p. 347).

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Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 19 of 31 PageID #:2013
105. Exceptional care rates are utilized in the Home Services Program, serving the same purpose as Service Cost Maximums, giving the upper limit of cost for services per month that the individual can utilize. (Testimony of Barbara Ginder, Tr. p. 347).
106. HSP is still extending exceptional care rates in appropriate cases even though the exceptional care program for nursing homes is no longer in existence. (Id. at p. 348).
107. The next step in determining HSP eligibility is for the applicant and case counselor to develop a written Home Services Plan. ( Id. at p. 345).
108. A Home Services Plan outlines the services an individual needs, how frequently those services are to be provided, and the type of provider. Service plans are developed by the individual and case manager and are limited by the Service Cost Maximum corresponding to the individual’s DON score, or if appropriate, the Exceptional Care Rate extended to the individual. (Id. at p. 346). No physicians for HFS or DHS participate in the development of the Homes Services Plan.
109. In HSP, a physician from DHS or HFS does not evaluate medical need for anyone participating in or applying to participate in HSP. (Testimony of Barbara Ginder, Tr. pp. 382-83, 387-88).
110. The service plan is sent to the individual applicant’s physician. The physician signs a certification that he approves the service plan so developed. The Certification provides, in part: “In my professional judgment, the above-referenced patient is (mark only one): ___ appropriate for Home Services Program. The Services described on the attached Service Plan are necessary for the patient to live independently
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Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 20 of 31 PageID #:2014
in the community. Without HSP services, I would recommend placement in an ICF or SNF to protect his/her well-being.” (Id. at p. 345-346; DX 46).
111. When the applicant’s physician signs the certification form, the applicant moves into HSP eligibility status.
112. If the physician does not sign the certification, no services under HSP are provided to the individual. (Testimony of Thomas Napolski, Tr. p. 275).
ERIC RADASZEWSKI IS NOT A QUALIFIED INDIVIDUAL WITH A DISABILITY UNDER THE ADA OR UNDER THE REHABILITATION ACT.
113. When Eric Radaszewski turned 21 years old on August 5, 2000, he began receiving home and community based services under the Persons With Physical Disabilities Medicaid Waiver through the Home Services Program. (JX 2-JX 6, DX 41DX 54; Testimony of Donna Radaszewski, Tr. p. 48).
114. Pursuant to Eric Radaszewski’s application to the HSP, DHS personnel evaluated Eric Radaszewski with the DON on October 7, 1999. (DX 41).
115. DHS extended an Exceptional Care Rate to Eric Radaszewski in the amount of $4,593 per month. (DX 48, JX 5).
116. A Home Services Plan was developed for Eric Radaszewski, which included registered nurse services and personal assistant services. (JX 6).
117. Plaintiff, Donna Radaszewski, signed up to be Eric’s personal assistant, provided care to Eric as a personal assistant, and submitted time sheets for payment to DHS. (Testimony of Donna Radaszewski, Tr. p. 50-51; DX 45, DX 50, DX 51, DX 54).
118. Eric Radaszewski received home and community based services under HSP for the month of August, 2000. (Testimony of Donna Radaszewski, Tr. p. 51; DX 45, DX 53, DX 54).
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Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 21 of 31 PageID #:2015
119. In September, 2000, Plaintiff removed Eric Radaszewski from HSP. Eric has not received services under HSP since August 31, 2000, including to this day. (Id. at pp. 50-52).
120. The State of Illinois did not stop any services or benefits to Eric Radaszewski through the HSP. (Id. at pp. 51-52).
121. Eric Radaszewski has not been evaluated for any Home Service Program operated by DHS since August, 2000. (Testimony of Donna Radaszewski, Tr. p. 60).
122. Eric Radaszewski is not currently receiving any services under any Home Services Program operated by DHS. (Id.).
123. Eric Radaszewski currently resides in the community at his parents’ home in Naperville, Illinois and receives nursing services pursuant to an injunction entered in proceedings in Radaszewski v. Maram, 00 CH 1475, 18th Judicial Circuit, DuPage County, Illinois. (Testimony of Donna Radaszewski, Tr. pp. 34-35, 55-56, 66).
124. Eric Radaszewski will only apply to DHS for any in-home service program under any Medicaid waiver after his guardian evaluates the outcome of court cases. (Id. at p. 61).
125. Donna Radaszewski has not looked into whether any nursing home could provide care for Eric Radaszewski. (Id. at p. 84).
126. While Donna Radaszewski desires a hospital level of care for Eric, Donna Radaszewski does not know of any doctor who would admit Eric to Children’s Memorial Hospital on a long-term basis. (Id. at pp. 89-90).
127. Donna Radaszewski never investigated whether any hospital would admit Eric on a long-term basis. (Id. at p. 90).
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Case: 1:01-cv-09551 Document #: 167 Filed: 11/07/07 Page 22 of 31 PageID #:2016
128. Donna Radaszewski does not know how much it would cost to place Eric in a hospital on a long-term basis. (Testimony of Donna Radaszewski, Tr. p. 90).
129. Donna Radaszewski admitted that she has no basis to claim that it would be less expensive to provide care for Eric at home rather than in an institutional setting. (Id. at pp. 90-91).
130. Dr. Peters, Eric Radaszewski’s physician, opined that Eric needs to have an experienced and knowledgeable RN-level nurse, who will be available to Eric on a daily basis, several times during the day to assess any change in his status. (Testimony of Michael Peters, Tr. p. 113).
131. Eric Radaszewski’s physician opined that if Eric were placed in an institution, he would recommend care on a level that Eric is getting now – a hospital level of care. Dr. Peters admitted that in the real world, Eric would not have access to a hospital level of care for very long. (Testimony of Michael Peters, Tr. pp. 115-116).
132. Dr. Peters admitted that he has not actively looked into whether any institution, other than a hospital, would be able to adequately care for Eric. (Id. at p. 116).
133. Dr. Peters admitted that there may be a nursing facility that could adequately care for Eric. (Id.).
134. Dr. Peters admitted that he would not admit Eric Radaszewski to a hospital under his current condition. (Id. at p. 132).
135. Dr. Peters admitted that if Eric’s parents were not available to care for him or the level of care he was getting at home were withdrawn, Eric would be assessed, in
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the hospital, for those services and treatments he would need upon discharge from the hospital. (Testimony of Michael Peters, Tr. p. 135).
136. Dr. Peters admitted that reimbursement for hospital services is based upon the insurance plan of the patient and the agreed-upon reimbursement between the hospital and insurance plan, and not the $2,000-$3,000 per night that Edward Hospital charges. (Id. at p. 130).
137. The Illinois Department of Healthcare and Family Services does not pay the usual and customary charges that are billed for services to Medicaid eligible individuals by hospitals. (Testimony of Matthew Werner, Tr. p. 559).
138. HFS reimburses hospitals at a diagnosis related grouping rate (“DRG”). (Testimony of Matthew Werner, Tr. p. 560, see also, Testimony of Francis Kopel, Tr. pp. 210-211).
139. Hospitals enrolled as providers of services to Medicaid recipients agree to accept payment at the rate set by HFS. (Testimony of Matthew Werner, Tr. p. 560).
140. Eric Radaszewski’s home service program case is currently in case interrupt status, and he is not receiving services under the HSP. (Testimony of Thomas Napolski, Tr. pp. 273-74).
141. In order to receive services under HSP, Eric Radaszewski’s eligibility would have to be determined, including, a new DON assessment made, service cost maximum or exceptional care rate established, a new service plan developed, and Eric’s personal physician would need to certify his appropriateness for HSP. (Id. at pp. 274-275).
142. If Eric’s physician did not certify him as appropriate for HSP, then HSP could not provide him any services. (Id. at p. 275).
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143. Eric Radaszewski is not eligible for the HSP. 144. By filing this lawsuit, Eric Radaszewski is seeking to receive funding through the State to provide private duty nursing services. (Testimony of Donna Radaszewski, Tr. p. 47). 145. When the lawsuit was originally filed, Eric Radaszewski was seeking 24 hours of private duty nursing, seven days per week. At trial, he now seeks 16 hours of private duty nursing plus respite hours. (Id. at pp. 79-80). ERIC RADASZEWSKI’S PARTICIPATION IN THE MEDICALLY FRAGILE AND TECHNOLOGY DEPENDENT MEDICAID WAIVER IS
NOT RELEVANT TO HIS CLAIMS. 146. The Home and Community Based Services for Medically Fragile and Technology Dependent Children ("MFTD") provides home and community based services for children to allow them to stay in their homes with their families and not be institutionalized. (Testimony of Barbara Ginder, Tr. p. 353). 147. MFTD allows a family's income to be waived so that children can become eligible for Medicaid regardless of the family's income. (Id. at p. 355). 148. A child who is eligible for Medicaid is eligible for all Medicaid services, including the Early Periodic Screening Diagnostic and Treatment Program ("EPSDT"). (Id.; 42 U.S.C. §§1396a(a)(43), 1396d(r)). 149. The target population for MFTD is children under the age of 21 who would require a hospital level of care or an intermediate care facility for mentally retarded persons. (Testimony of Barbara Ginder, Tr. p. 357; DX 13 at 002845).
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150. Services available under MFTD are respite care, environmental adaptations, family training, nurse training, placement maintenance, counseling services, and medically supervised day care. (Id. at p. 358; DX 13 at 002849-002851).
151. Skilled nursing services are not a covered service under MFTD. (DX 13 at 002849-002851).
152. Private duty nursing is not a service covered under MFTD. (Testimony of Barbara Ginder, Tr. p. 359).
153. Persons in MFTD must have a written plan of care, which is reviewed by physicians in HFS'Bureau of Comprehensive Healthcare Services for medical necessity and approval. (Testimony of Barbara Ginder, Tr. pp. 360-361).
ASSUMING, ARGUENDO, THAT PLAINTIFF HAS SUCCESSFULLY SHIFTED THE BURDEN TO DEFENDANT, THE MODIFICATION PLAINTIFF SEEKS IS NOT REASONABLE AND WOULD FUNDAMENTALLY ALTER THE PERSONS WITH DISABILITIES MEDICAID WAIVER. 154. Defendant adopts by reference all the Proposed Findings of Fact at Paragraphs 60 through 112 as if they were fully stated here. 155. Todd Menenberg has taught and presented economic analysis and damages at American Bar Association conferences, to agencies of the federal government, state Medicaid Directors, and to various groups of public welfare attorneys. (Testimony of Todd Menenberg, Tr. p. 403). 156. Mr. Menenberg has been involved with litigation over home and community based waivers in Oregon, California, Pennsylvania, Indiana. (Id. at pp. 406-407). 157. Mr. Menenberg has also estimated costs of moving populations from institutions into the community for the states of New York and Pennsylvania. (Id. at p. 407).
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158. Defendant tendered, and the Court accepted, Todd Menenberg as an expert in the field of estimating economic impact. (Id. at pp. 407-408).
159. Mr. Menenberg quantified the economic impact on the cost of the State’s current Persons with Disabilities Waiver, assuming Eric Radaszewski were to prevail on her request for additional home nursing services and other individuals were then also able to access additional waiver services. (Id. at p. 408).
160. Mr. Menenberg’s analysis focused on two populations: 1) current nursing facility residents who would potentially move from nursing facilities to community based settings through the PWD, and 2) current PWD recipients who currently use services at a cost less than their SCM (Service Cost Maximum). (Testimony of Todd Menenberg, Tr. pp. 410-411). 161. If SCM limitations were removed, the cost to move nursing home residents into the community and access services through the PWD would approximately be $32 million using fall 2006 nursing home rates, or $33 million using January 2007 rates. (Id. at pp. 486,499). 162. If SCM limitations were removed, the cost to provide additional services to current PWD Waiver recipients would be as follows:
a) The difference between the cost of PWD recipients’ service plans and their respective SCMs would be approximately $206 million annually,
b) The difference between the cost of PWD recipients’ service plans and their respective SCMs increased by 10% would be approximately $258 million annually,
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c) The difference between the cost of PWD recipients’ service plans and their respective SCMs increased by 20% would be approximately $310 million annually, and
d) The difference between the cost of PWD recipients’ service plans and their respective SCMs increased by 250% would be approximately $472 million annually. (Id. at pp. 412, 498).
163. Matthew Werner prepared an analysis to illustrate the potential maximum impact if individuals who require some level of nursing care had access, without restriction, to individual nursing care equivalent to that which Eric Radaszewski is requesting in this lawsuit, 24 hours per day. (Testimony of Matthew Werner, Tr. pp. 560561; DX 3 at HFS 009598).
164. The analysis that Mr. Werner performed follows the approach used by HFS in analyzing proposed legislative initiatives and policy changes. (DX 3 at HFS 009598).
165. A shift of only 10% of the current nursing home population to home care receiving benefits equivalent to Eric Radaszewski in his last year in the MFTD Waiver would cost an additional $1.25 billion. (Id. at HFS 009599, HFS 009601).
166. That $1.25 billion amount is more than the $578 million spent on all expanded eligible populations in FY 2005. (Id. at HFS 009599, HFS 009609).
167. In addition, it would cost another $931 million if 10% of the individuals in HSP were to begin receiving benefits equivalent to Eric Radaszewski in his last year in the MFTD Waiver. (Id. at HFS 009599, HFS 009601).
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168. This combined $2.2 billion shift is almost equal to the total amount of $1.8 billion spent on all children in the medical assistance program. (Id. at HFS 009599, HFS 009609).
169. The Illinois Medical Assistance (Medicaid) Program serves over 2 million people per month. (Testimony of Matthew Werner, Tr. p. 575).
170. The current annual cost of the Medicaid Program is over 12 billion dollars. (Id.).
171. Such a large shift in costs would force the State to fundamentally alter the current Medicaid program from one that takes care of a mix of uninsured families, disabled, and elderly to one that only takes care of a small population of the most severely ill. (Testimony of Matthew Werner, Tr. pp. 576-577; DX 3 at HFS 009599).
172. Samuel Flint, Ph.D., lacks the qualifications to render expert opinion on Medicaid health policy or Medicaid Finance.
173. Dr. Flint does not possess a degree in statistics at any level. (Testimony of Samuel Flint, Tr. pp. 612-613).
174. Dr. Flint does not possess a degree in economics at any level. (Id.). 175. Dr. Flint does not possess a degree in business at any level. (Id.). 176. Dr. Flint does not possess a degree in accounting at any level. (Id.). 177. Dr. Flint did not describe what “health economics” encompasses. (Id. at p. 614). 178. Dr. Flint has not published any peer-reviewed articles about home and community based Medicaid waivers. (Id.).
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179. Dr. Flint has not published any peer-reviewed articles about the effect of removing service cost maximum requirements to allow individuals to receive benefits in excess of service cost maximums in a home and community-based waiver. (Id. at pp. 614-15).
180. Dr. Flint has no experience administering policy regarding programs that implement home and community-based waivers. (Id. at p. 617).
181. Dr. Flint did not do any budget forecasting or economic impact analyses for Illinois home and community-based waivers. (Id. at pp. 617-618).
182. Dr. Flint has never been retained to provide any major consulting services to any State Medicaid program. (Id. at p. 618).
183. Dr. Flint critiqued Mr. Menenberg’s cost calculations concerning moving current nursing home residents into the community based on a statistical review of Menenberg’s work. (Id. at p. 660).
184. Mr. Menenberg never represented that his cost calculations were based on a statistical model. (Id.).
185. Dr. Flint did not review the provisions of the PWD Medicaid waiver prior to preparing his report. (Id.).
186. Dr. Flint prepared an Expert report in Memisovski v. Maram, 92 C 1982 (N.D.Ill.). that utilized non-statistically valid data. (Id. at pp. 662-664).
187. Dr. Flint admits that he uses best information available to an expert, regardless of statistical-validity, if it provides information to assist the court. (Id. at p. 664).
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188. Dr. Flint admitted that judgmental sampling is a technique commonly used by government agencies. (Id. at pp. 665-666).
189. Dr. Flint did not attempt to duplicate Mr. Menenberg’s work. (Id. at p. 666). 190. Dr. Flint did not conduct any independent studies in this case for his report. (Id. at p. 667). THERE IS A NATIONAL SHORTAGE OF REGISTERED NURSES. 191. Congress has found that there is a shortage of registered nurses in the United States. H.R. Rep. No. 101-288 at 1 (1989), reprinted in 1989 U.S.C.C.A.N. 1984. 192. To alleviate this shortage of registered nurses, Congress established a program allowing qualified nurses from foreign countries to come to the United States to work as non-immigrant aliens for a period of up to five years. See, 8 U.S.C. §§1101(a)(15)(H)(i)(a), 1182(m)(4)(1994) repealed. 193. Congress formally repealed the H-1A statute in the Nursing Relief for Disadvantaged Areas Act of 1999, Pub. L. 106-95, §§2(b) & (c), 113 Stat. 1312, 1312-16 (1999), and replaced it with a substantially similar program for admitting alien nurses to the United States. See, 8 U.S.C. §§1101(a)(15)(H)(i)(c), 1182(m). 194. Donna Radaszewski has trouble staffing nursing care for Eric Radaszewski because nurses frequently do not report for their shift. (Testimony of Donna Radaszewski, Tr. p. 80).
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DATED: November 7, 2007

Respectfully submitted,
LISA MADIGAN Attorney General of Illinois
By: /s/John E. Huston___________ KAREN KONIECZNY #1506277 JOHN E. HUSTON #3128039 CHRISTOPHER GANGE #6255970 Assistant Attorneys General 160 N. LaSalle St. Suite N-1000 Chicago, IL 60601 (312) 793-2380

31

 </s> Case: 1:01-cv-09551 Document #: 166 Filed: 11/07/07 Page 1 of 15 PageID #:1980

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI, Guardian, on )

Behalf of Eric Radaszewski,

)

)

Plaintiff,

)

)

v.

)

)

BARRY S. MARAM, Director of the

)

Illinois Department of Healthcare

)

and Family Services,

)

)

Defendant.

)

No. 01 C 9551 Judge John W. Darrah Magistrate Judge Schenkier

DEFENDANT’S CLOSING ARGUMENT
NOW COMES Defendant, BARRY S. MARAM, in his official capacity as Director of the Illinois Department of Healthcare and Family Services, by and through his attorney, LISA MADIGAN, Attorney General of Illinois, and hereby submits his Closing Argument, stating as follows: I. THERE IS NO INDEPENDENT CLAIM FOR “INTEGRATION” UNDER TITLE
II OF THE ADA, OR SECTION 504 OF THE REHABILITATION ACT OR ANY FEDERAL REGULATIONS.
A. Neither Title II Of The ADA Nor Section 504 Of The Rehabilitation Act Mandates “Integration.”
Plaintiff’s claims in this Court are set forth at Paragraphs 42 and 45 of Count VI and Paragraphs 42 and 43 of Count VII. Plaintiff claims that both Title II of the ADA and 28 C.F.R. § 35.130 and Section 504 of the Rehabilitation Act and 28 C.F.R. § 41.51(d) require public entities like the Illinois Department of Healthcare and Family Services to “provide services to persons with disabilities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” (Complaint at Count VI, ¶ 42; Count VII at ¶ 43). Plaintiff, thus, does not claim that Defendant intentionally discriminated against Eric, that Eric received disparate treatment at Defendant’s hands or that Defendant failed to grant Eric a reasonable accommodation. In the Seventh Circuit, these are the three theories of liability that the ADA

Case: 1:01-cv-09551 Document #: 166 Filed: 11/07/07 Page 2 of 15 PageID #:1981
recognizes. Wisconsin Community Services v. City of Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006).
No reading of the plain language of either Title II of the ADA or Section 504 supports a conclusion that either statute mandates public entities to provide services in the most integrated setting appropriate to the needs of the disabled. Title II of the ADA states only that “no qualified individual with a disability, shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. The ADA is an anti-discrimination statute that prohibits discrimination against the disabled and does not require the imposition of a particular standard of care. Olmstead v. L.C., 527 U.S. 581, 623 (1999) (Thomas, J., dissenting).
Like the ADA, the Rehabilitation Act is an anti-discrimination statute. Moreover, in Southeastern Community College v. Davis, 442 U.S. 397, 410-12 (1979), the Supreme Court expressly found that the Rehabilitation Act does not impose an affirmative obligation on recipients of federal funds. Additionally, the Rehabilitation Act is legislation enacted pursuant to Congress’ Spending Power. Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000). Legislation enacted under the Spending Power must unambiguously impose a condition on any grant of federal money. Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17-18 (1981). The Rehabilitation Act does not create an affirmative, specific right to require Defendant to fund in-home care that any physician prescribes for participants in home and community-based programs, generally, and Defendant need not fund in-home care, particularly, when the authority to operate the home and community-based programs is located in another ambiguous piece of Spending Power legislation, i.e., 42 U.S.C. § 1396n(c).
B. The Integration Regulations, 28 C.F.R. §§ 35.130 And 41.51(d), Do Not Impose Any Affirmative Obligations On The Public Entity.
The integration regulations do not impose any affirmative obligations on the public entity independent of the ADA and Section 504. Regulations creating rights independent of any federal statute are not enforceable laws. Mungiovi v. Chicago Housing Authority, 98 F.3d 982, 983-84 (7th Cir. 1996). In Alexander v. Sandoval, 532 U.S. 275, 285-89 (2001), the Supreme Court held that federal agencies were authorized to “effectuate” Title VI by issuing regulations, but that they could only effectuate rights already created by statute and could not themselves create new rights or rights of action. Under these authorities, since the integration regulations
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appear to create new rights and new causes of action that the ADA and Rehabilitation Act themselves do not recognize, they are not enforceable and do not authorize the relief Plaintiff seeks here.
C. None Of The Authorities Plaintiff Cited Recognizes An Independent Claim For “Integration.”
First, Plaintiff cited no case law that recognizes an independent claim for “integration.” Olmstead v. L.C., 527 U.S. 581 (1999) did not recognize and give imprimatur to such a claim. Olmstead did not find either a private right of action to enforce the integration regulations, or hold that an integration mandate exists within the language of the ADA or Section 504. The Olmstead Court stated, first, that it was not determining the validity of various regulations promulgated under the ADA and, further, that the regulations were entitled only to “respect” and not Chevron deference. Olmstead, 527 U.S. at 592, 597-98. Olmstead, rather, turned on the State of Georgia’s failure to grant a reasonable modification in the form of community placements for people who were appropriate for existing and unfilled Medicaid-funded community-based programs, and found support for the decision in the fact that the State of Georgia had home and community-based Medicaid programs that responsible Georgia officials believed were appropriate for the Olmstead plaintiffs. Olmstead, 527 U.S. at 593-95, 601-03. The ADA and Section 504 violations identified in Olmstead concerned the State of Georgia’s failure to grant a reasonable modification in the form of placement into existing home and community-based programs. Accord: Wisconsin Community Services v. City of Milwaukee, 465 F.3d 737, 753 n.13 (7th Cir. 2006).
Olmstead is, thus, factually distinguishable from the circumstances here. Eric Radaszewski is not residing in a large State institution and asking for community services; Eric is already residing in the community. Defendant’s Proposed Findings of Fact at 113-18, 123. Olmstead, 527 U.S. at 593-94; Sanchez v. Johnson, 416 F.3d 1051, 1063 (9th Cir. 2005). The State of Georgia was not ordered to modify its Medicaid waiver in order to accept the Olmstead plaintiffs into the community-based programs. Rather, the reasonable modification in Olmstead consisted of placing persons into existing home and community-based programs that were admittedly appropriate for them. Defendant, here, has a home and community-based program that serves as an alternative to placement in a nursing home. Defendant’s Proposed Findings of
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Fact at 60-112. Eric’s physician and guardian do not want to participate in the Defendant’s Home Services Program. Defendant’s Proposed Findings of Fact at 113-145.
Second, the decision in Radaszewski ex rel. Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) does not aid Plaintiff because it is not a decision on the merits. In Radaszewski, the Court simply reversed a dismissal of Plaintiff’s ADA claims on Eleventh Amendment grounds, reversed a judgment on the pleadings for Defendant on Plaintiff’s Section 504 claim and remanded the case for development of a record. This Court is not bound by any portion of the Radaszewski decision that touches on issues that were not formally before the Seventh Circuit. Gertz v. Welch, 680 F.2d 527, 532-33 (7th Cir. 1982). The reviewing court’s mandate controls as to matters within its compass, but, on remand, the lower court is free as to other issues. Gertz, Id.
Finally, the Plaintiff reads far too much into the Seventh Circuit’s Radaszewski decision. Plaintiff cannot seriously suggest that the Seventh Circuit either 1) decided the merits of Plaintiff’s claims without evidence, 2) fashioned an approach to the discrimination laws that departed from Supreme Court and Seventh Circuit precedent, or 3) held that Eric had an independent right to “integration” either through the ADA and Section 504 or the regulations. Since Plaintiff’s claims are only for “integration,” and there is no right to integration either in the statutes or independently enforceable through the regulations, Defendant is entitled to judgment on Counts VI and VII of Plaintiff’s Complaint without more. II. REGARDLESS OF HOW PLAINTIFF’S CLAIMS ARE CAST, PLAINTIFF
FAILS TO MEET HER BURDEN OF PROOF AND DEFENDANT IS ENTITLED TO JUDGMENT IN HIS FAVOR AS TO ALL CLAIMS AND DEFENSES.
A. Eric Radaszewski Was Not Excluded From The Home Services Program By Reason Of His Disability Within The ADA And Section 504.
The ADA, at 42 U.S.C. § 12132, provides in pertinent part that “ … no qualified individual with a disability shall, by reason of such disability, be denied the benefits of the … programs … of a public entity.” (Emphasis supplied). The Rehabilitation Act, at 29 U.S.C. § 794(a), provides in pertinent part that no otherwise qualified individual with a disability shall “be excluded from the participation in … any program or activity solely by reason of his disability.” (Emphasis supplied). Cases interpreting these statutes hold that when, as here, a State adopts a neutral rule that incidentally disqualifies a disabled individual, then the neutral application of that
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rule cannot be said to be a decision actuated “solely on the basis of disability.” Southeastern Community College v. Davis, 442 U.S. 397, 412-13 (1979); Wimberly v. Labor and Industrial Relations Commission of Missouri, 479 U.S. 511, 516-17 (1987); Sandison v. Michigan High School Athletic Ass’n., Inc., 64 F.3d 1026, 1030-34, 1036 (6th Cir. 1995). The phrase “by reason of” requires a showing of proximate causation that is lacking in this case. Holmes v. Securities Investor Protection Corporation, 503 U.S. 258, 268 (1992).
Eric Radaszewski is not currently eligible for the only program under which he could obtain home and community-based services from Defendant, i.e., the Home Services Program (hereinafter “Home Services Program” or “HSP”). Defendant’s Proposed Findings of Fact at 92145. With regard to Eric’s status, those Proposed Findings of Fact show that: 1) there has been no DON evaluation of Eric since October 10, 1999; 2) there is no current Service Cost Maximum or exceptional care rate that authorizes an amount of services that Eric’s guardian could purchase for him on a monthly basis through HSP; 3) there is no current Home Services Program Service Plan for Eric within a Service Cost Maximum or exceptional care rate; 4) no one made any recent determination that HSP services for Eric Radaszewski were appropriate; 5) Eric’s guardian has not recently agreed to and signed an HSP Service Plan; and 6) no physician reviewed and approved a current HSP Service Plan. Defendant’s Proposed Findings of Fact at 110, 113-145. These elements are “essential eligibility requirements” of HSP that cannot be waived or disregarded. See Sandison, 64 F.3d at 1034-35, 1036-37.
Under Davis, Wimberly and Sandison, Eric Radaszewski’s lack of current eligibility eligibility status in HSP was not “by reason of his disability” within the ADA and Rehabilitation Act. First, it is evident that no act on the part of Defendant Maram resulted in Eric Radaszewski being denied the benefits of the Home Services Program. Second, Eric had a case in the Home Services Program and received services for one month. Eric’s mother and physician do not want Eric to participate in HSP. Defendant’s Proposed Findings of Fact at 113-145. Third, HSP’s limitation of benefits to a nursing home level of care is driven by the Persons with Physical Disabilities Medicaid Waiver and operates neutrally on all disabled persons. There is no evidence that any illness or circumstance uniquely associated with Eric Radaszewski was the proximate cause of his ineligibility for HSP. Finally, it is entirely speculative whether Eric could now meet the requirements of the Home Services Program. According to the testimony of Eric’s physician, Dr. Peters, the physician would not approve Eric for the HSP under the existing
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program requirements. Defendant’s Proposed Findings of Fact at 130-35, 110-12. Without an HSP Service Plan within the HSP rules and without the requisite certification from a physician that the services that could be provided under the allowable rate can be appropriately given to Eric in his home, this Court is left to guess whether Eric qualifies for HSP within the meaning of Section 12131(2). This Court cannot substitute its judgment for that of Eric’s physician and make the determination that Eric could now be cared for under the HSP Service Plan developed for him in the summer of 2000. Jones v. Lincoln Electric Co., 188 F.3d 709, 723-25 (7th Cir. 1999). Since Eric’s ineligibility for HSP is not “by reason of his disability,” Defendant is entitled to judgment on Counts VI and VII of Plaintiff’s Complaint.
B. Eric Radaszewski Is Not An “Otherwise Qualified Individual” With A Disability.
The ADA, at Section 12132, provides in pertinent part that “... no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” To establish a violation of Title II of the ADA, the Plaintiff must show that 1) he is a qualified individual with a disability, 2) he was excluded from participation in or otherwise discriminated against with regard to a public entity’s services, programs, or activities, and 3) such an exclusion was by reason of his disability. Sandison v. Michigan High School Athletic Ass’n., Inc., 64 F.3d 1026, 1036 (6th Cir. 1995).
Turning, next, to Section 504, it provides in pertinent part that, “... [n]o otherwise qualified individual with a disability ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ... ” 29 U.S.C. § 794(a). To establish a violation of Section 504, the Plaintiff must show that 1) he is handicapped within the meaning of Section 504, 2) he is otherwise qualified for the benefit or services sought, 3) he was denied the benefit solely by reason of his handicap, and 4) the program providing the benefit or services received federal financial assistance. Sandison, 64 F.3d at 1030-31.
In Alexander v. Choate, 469 U.S. 287, 301-09 (1985), the Supreme Court held that meaningful access to Medicaid services for the disabled did not restrict the State’s discretion under federal Medicaid law to choose the proper amount, scope and duration limitations on covered services. The Court observed that Section 504 does not require the State to alter the
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benefits offered under its Medicaid program simply to meet the reality that disabled persons have greater medical needs because, to conclude otherwise, would be to find that the Rehabilitation Act requires that States view certain medical conditions as more important than others and more worthy of cure through government subsidization. Alexander, 469 U.S. at 302-04. The Court went on to find that Tennessee’s limitation on hospital days covered by Medicaid does not offend Section 504 because the denial of benefits, even when left unmodified, was not linked in any way to those plaintiffs’ particular disabilities. Id.; accord: Frances J. by Murphy v. Bradley, 1992 WL 390875 * 7 (N.D. Ill. 1992) vacated on other grounds 19 F.3d 337 (7th Cir. 1994) (elderly disabled who claimed that they did not receive enough in benefits under certain home and community-based Medicaid waiver program because of the program caps linked to the assessment tool the State used to grant those benefits failed to state a claim under Section 504; plaintiffs were not deprived of meaningful access to the benefits because the Medicaid Act gives the states substantial discretion in defining the allocation of benefits).
Defendant adopts all the arguments, authorities and facts set forth in Argument II(A) as his facts and arguments here. Eric is not currently eligible for the Home Services Program and, furthermore, does not want to participate in the Home Services Program. Defendant’s Proposed Findings of Fact at 92-145. Plaintiff does not meet her burden of proof that Eric is either a “qualified individual with a disability” or “otherwise qualified” within the statutes. Accordingly, Defendant is entitled to judgment on Counts VI and VII of Plaintiff’s Complaint.
C. The Modifications That Eric And His Guardian Seek To The Medicaid Program Are Not Reasonable And Constitute Fundamental Alterations To Defendant’s Programs.
In Alexander v. Choate, 469 U.S. 287 (1985) the Supreme Court found a duty to accommodate in Section 504 generally when it explained that “under some circumstances, a ‘refusal to modify an existing program might become unreasonable and discriminatory.’” Alexander, 469 U.S. at 300, citing Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979). See also Wisconsin Community Services, Inc. v. City of Milwaukee, 465 F.3d 737 746-48 (7th Cir. 2006); Washington v. Indiana High School Athletic Ass’n., Inc., 181 F.3d 840, 850-52 (7th Cir. 1999). As a corollary, the Supreme Court found that the Alexander plaintiffs’ request to modify the Tennessee’s Medicaid program by removing the cap on the duration of hospital days covered “would be far from minimal” and well beyond the accommodations that were required
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Case: 1:01-cv-09551 Document #: 166 Filed: 11/07/07 Page 8 of 15 PageID #:1987
under Davis. Alexander, 469 U.S. at 308. The Court also noted that similar treatment would have to be accorded other groups. Id. The Supreme Court, thus, recognized that the equities permitted the State to resist the broad-based distributive decision that would be required. Id.
Under Olmstead v. L.C., 527 U.S. 581 (1999), officials of the State of Georgia were found to have violated Title II of the ADA by failing to grant a reasonable modification to the State’s Medicaid program in the form of placing institutionalized persons into existing and unfilled community-based services programs. Olmstead, 527 U.S. at 601-03. The Olmstead Court did not rule on whether a State would, under the ADA and Section 504, have to expand an existing Medicaid Waiver or secure a new one to accommodate certain disabilities. Nevertheless, the Court held that the State is permitted to resist modifications that entail fundamental alterations of the State’s services and programs. Id. 527 U.S. at 603-07. The Olmstead Court specifically disapproved two methods of analyzing whether a requested modification is reasonable or whether it amounts to a “fundamental alteration” of a State’s services. First, the Olmstead court disapproved measuring the costs of placing one or two disabled people into the community against the entirety of the State’s budget for the treatment of that disability because the requested relief will always seem reasonable. Olmstead, 527 U.S. at 603-04. The Olmstead Court also disapproved of simply comparing the cost of institutionalization against the cost of community-based services, because that comparison would not account for the State’s financial obligation to continue to operate partially full institutions with fixed costs. Id. at 604 n.15. Thus, even if a community-based placement would be less costly for a specific individual, the State must still factor into its overall budget the fixed costs of maintaining some necessary state institutions. Moreover, at least one concurring opinion in Olmstead refused to permit federal courts to review the policy decisions that responsible state officials made in creating their programs, finding that “grave constitutional concerns” arise when federal courts inquire into states’ decisions about establishing or declining to establish new programs. Olmstead, 527 U.S. at 612-13 (Kennedy, J., concurring).
Under the law of the Seventh Circuit, the public entity’s failure to grant a reasonable accommodation is a theory of liability separate from intentional discrimination. Good Shepherd Manor Foundation, Inc. v. City of Momence, 323 F.3d 557, 561-62 (7th Cir. 2003); Wisconsin Community Services, 465 F.3d at 753. In this Circuit, a plaintiff pursuing a reasonable accommodation claim under Title II need not allege either disparate treatment or disparate
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Case: 1:01-cv-09551 Document #: 166 Filed: 11/07/07 Page 9 of 15 PageID #:1988
impact. Id. Under Wisconsin Community Services, an accommodation under Title II of the ADA is only required when it is necessary to avoid discrimination on the basis of disability and reasonable. Id. at 751. In resolving the issues of necessity and reasonableness, the Seventh Circuit approved the approach the Supreme Court fashioned in Alexander v. Choate. Wisconsin Community Services, 465 F.3d at 746-48, 751-53.
Lastly, the Ninth Circuit, in Sanchez v. Johnson, 416 F.3d 1051, 1063-68 (9th Cir. 2005) found that an injunction ordering California welfare officials to increase Medicaid-funded community placements for persons with disabilities by financing whatever supports were necessary to enable them to live in the community would result in a fundamental alteration of California’s Olmstead plan. The Sanchez Court cited Olmstead with approval for the proposition that plaintiffs seeking relief under the ADA and Section 504 cannot prevail by putting on proof of simplistic and facile comparisons of the costs of care in the community versus the costs of care in an institution. Sanchez, 416 F.3d at 1067 n.10.
The relief Plaintiff seeks for Eric would undo the concepts on which Illinois secured approval for the Persons with Physical Disabilities Medicaid Waiver; namely to prevent admission of disabled persons to nursing facilities by allotting them such sums to choose their own services in the community as would have been expended on them were they to enter a nursing home. Plaintiff’s request is not necessary to prevent discrimination on the basis of Eric’s disability. Concerning necessity, the fact that a program requirement affects the disabled, without more, does not prove discrimination on the basis of disability. Alexander, 469 U.S. at 303-04; Wisconsin Community Services, 465 F.3d at 751-53. Plaintiff’s request is also not reasonable under these same authorities because an order to compel Defendant to expand the Persons with Physical Disabilities Medicaid Waiver, either by adding services, by requiring the selection of a new level of care yardstick, or by raising cost caps, would constitute a fundamental alteration. Indeed, the word “modification” “connotes moderate change.” Sandison, 64 F.3d at 1037.
1. Granting Plaintiff The Relief She Seeks For Eric Would Result In A Violation Of The Cost-Neutrality Requirements Of the Persons With Physical Disabilities Medicaid Waiver.
The Defendant’s authority to furnish home and community-based services to physically disabled persons through HSP derives from the Persons with Physical Disabilities Medicaid
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Case: 1:01-cv-09551 Document #: 166 Filed: 11/07/07 Page 10 of 15 PageID #:1989
Waiver. Defendant’s Proposed Findings of Fact at 93. The terms of the Persons with Physical Disabilities Medicaid Waiver control the requirements of HSP. Defendant’s Proposed Findings of Fact at 94. An injunction to give Eric an HSP Service Plan that would exceed the cost caps so as to enable him to receive at least 16 hours of private-duty nursing in his home is not a reasonable modification to the Home Services Program for three reasons. First, as part of its application for the Persons with Physical Disabilities Medicaid Waiver, Illinois expressly represented to the federal government that it was seeking to provide home and community-based services to disabled persons under age 60 who would need a level of services in a nursing facility. Defendant’s Proposed Findings of Fact at 62, 63, 66, 76-87. The federal government approved the Persons with Physical Disabilities Medicaid Waiver with that criterion. Defendant’s Proposed Findings of Fact at 62. Since the exceptional care rate was an actual Medicaid rate developed for and paid to nursing facilities that care for medically challenged persons, Defendant’s Proposed Findings of Fact at 103-06, Eric cannot have a Home Services Plan that exceeds the exceptional care rate without running afoul of the federally-approved Persons with Physical Disabilities Medicaid Waiver. The State’s use of the nursing home cost comparison to measure the cost of HSP services is the very essence of the Persons with Physical Disabilities Medicaid Waiver.
Second, the Seventh Circuit recognized in Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 458 (7th Cir. 2007) that each component of a program under the aegis of a home and community-based Medicaid Waiver is subject to a medical need requirement, but only up to the supplemental program’s cap, whether it is a cap on spending, a service exclusion, or a cap on the number of persons served. Under HSP, the caps are the agreements that the State will refuse to provide services to any person when the cost of serving that person would exceed the costs that the State would expend were that individual in a nursing facility and the State’s decision not to cover the costs of any service a physician may prescribe, including private duty nursing. Defendant’s Proposed Findings of Fact at 52-55, 60-145.
Third, Congress’ very purpose in enacting 42 U.S.C. § 1396(n) was to enable the States to provide access to services not covered under the State’s Title XIX Medicaid Plan without creating entitlements that create fiscal woes. Bertrand, Id. (limiting waiver services for CILA to certain number of persons in greatest immediate need is “sensible”). Moreover, in the Persons with Physical Disabilities Medicaid Waiver, the concept of cost neutrality must be satisfied not
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Case: 1:01-cv-09551 Document #: 166 Filed: 11/07/07 Page 11 of 15 PageID #:1990
only on an aggregate basis, but also on an individual basis. Defendant’s Proposed Findings of Fact at 76-87, 66. Neither the ADA nor Section 504 requires Defendant to expand the Persons with Physical Disabilities Waiver by funding services for Eric or anyone else at a hospital level of care. Arc of Washington v. Braddock, 427 F.3d 615, 619-22 (9th Cir. 2005). Defendant cannot accept any person in HSP whose needs cannot be safely satisfied by using the nursing home level of care yardstick.
2. An Injunction To Require Defendant To Approve Any Service For A Participant In The Home Services Program That A Physician Prescribes As “Medically Necessary” Is Not A Reasonable Modification.
The Persons with Physical Disabilities Medicaid Waiver is not what can be described as a “medical” model. Defendant’s Proposed Findings of Fact at 60-91. Defendant’s purpose for having secured the Persons with Physical Disabilities Medicaid Waiver was to avoid unnecessary placements of disabled persons into nursing homes by arranging to allow them to receive certain services in community-based settings. Defendant’s Proposed Findings of Fact at 62-65. Defendant assured the federal government that home and community-based services were driven by “consumer choice” and not by a physician’s prescription of what services are medically necessary. Defendant’s Proposed Findings of Fact at 70-79, 88-89, 96-112. Under the Persons with Physical Disabilities Medicaid Waiver, Illinois is required to refuse to offer home and community-based services to any person for whom it can reasonably be expected that the cost of home or community-based services furnished to that individual would exceed a nursing facility level of care. Defendant’s Proposed Findings of Fact at 66. The Persons with Disabilities Medicaid Waiver does not allow Illinois to cover, as medical assistance, the cost of home and community-based services for people who would otherwise require a hospital level of care. Defendant’s Proposed Findings of Fact at 62. If a hospitalized Medicaid-eligible individual would be treated on a long-term basis in a hospital because a placement in a nursing facility cannot be found, the Illinois Medicaid program will not reimburse the hospital more than the nursing facility rate. See 89 Ill. Admin. Code 140.569(j).
The HSP, operating according to the terms of the Persons with Physical Disabilities Medicaid Waiver, is also not a medical model and does not authorize services in excess of the program’s limits based on medical need. Defendant’s Proposed Findings of Fact at 92-112. A person who wishes to receive home and community-based services must make an application to
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Case: 1:01-cv-09551 Document #: 166 Filed: 11/07/07 Page 12 of 15 PageID #:1991
HSP. In order to receive services through HSP, an individual must be Medicaid-eligible; must have a severe disability which is expected to last for at least 12 months or for the duration of life; must be in need of long-term care as determined by a Determination of Need (“DON”) score of at least 29 points; must obtain certification from a physician that he/she is in need of long-term care and that this care can safely and adequately be provided in his/her home as provided in the HSP Service Plan developed for the individual; and cannot require in-home services that are expected to cost more than the cost the State would pay for nursing home care for an individual with a similar DON score. For each individual meeting the minimum required DON score for eligibility there is a corresponding Service Cost Maximum for his/her DON score which is the maximum amount that may be expended for services through HSP for an individual who chooses HSP services over institutionalization. The amount set in the Service Cost Maximum directly corresponds to the amount the State would expect to pay a nursing home for the nursing care component if that person chose to enter a nursing home. Defendant’s Proposed Findings of Fact at 92-112.
An HSP applicant with exceptional care needs whose need for care cannot be met by the Service Cost Maximum may qualify for an exceptional care rate. Defendant’s Proposed Findings of Fact at 103-05. The exceptional care rate is the rate HFS would have paid to a nursing facility under the Exceptional Care Program for a particular diagnosis category.1 Id. After an exceptional care rate has been extended, Home Services Program counselors, in cooperation with the HSP applicant or guardian develop an HSP Service Plan. Defendant’s Proposed Findings of Fact at 107-09. A physician’s role in HSP is limited to having the applicant’s personal physician review the HSP Services Plan for its appropriateness and to state that he would recommend placement in a nursing home without HSP. Defendant’s Proposed Findings of Fact at 110-12.
From the foregoing, it is apparent that reading a requirement into the Home Services Program that Eric can receive whatever services his physician feels are medically necessary to maintain him in the community is not a reasonable modification. First, Plaintiff misapprehends the concept of “medical necessity” as it pertains to Medicaid. “Medical necessity” is not a tool by which to secure entitlement to services; rather, it is a means by which a State appropriately
1 Even though the Exceptional Care Program ended January 1, 2007, Illinois still utilizes the rates established under that program and, in the appropriate case, extends an exceptional care rate to the HSP participant. Defendant’s Proposed Findings of Fact at 106.
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Case: 1:01-cv-09551 Document #: 166 Filed: 11/07/07 Page 13 of 15 PageID #:1992
can choose to limit services. 42 C.F.R. § 440.230. Second, to read Plaintiff’s “medical necessity” notions into HSP for any service that 1) exceeds the cost caps; or 2) is not already provided under the Medicaid Waiver, or 3) is desired by anyone who is Medicaid-eligible whether eligible for HSP or not, undermines the very purpose for which the State secured the Medicaid Waiver here. 42 U.S.C. § 1396n(c); Defendant’s Proposed Findings of Fact at 62-79, 85-86. It is evident that HSP was not designed so that the delivery of services would be driven by what a physician prescribes as medically necessary. Id. From the foregoing, it is also evident that there are no mechanisms in place by which the Medicaid agency or its designee can review physicians’ claims of medical necessity for HSP. Defendant’s Proposed Findings of Fact at 60112. Therefore, to read Plaintiff’s concept of “medical necessity” into the HSP or Persons with Physical Disabilities Medicaid Waiver is not reasonable.
3. If The Relief That Plaintiff Seeks Is An Extension Of Eligibility For Eric In The Medically Fragile And Technology Dependent Children’s Waiver, Such A Modification Is Not Reasonable.
The Medically Fragile and Technology Dependent Children’s Waiver permits medically complex or technology dependent children under the age of twenty-one to become eligible for Medicaid without counting the income of their parents. Defendant’s Proposed Findings of Fact at 147. The Children’s Waiver offers very limited services through the Waiver itself, notably respite, home modifications and training programs for caregivers. Defendant’s Proposed Findings of Fact at 150. What makes participation in the Children’s Waiver attractive is the child’s concomitant eligibility for Early and Periodic Screening, Detection and Treatment, or “EPSDT.” 42 U.S.C. §§ 1396a(a)(43); 1396d(r). Because of EPSDT, a child under the age of 21 can receive all medically necessary services paid for by Medicaid, whether such services are covered under the State’s Title XIX Medicaid Plan or not. Section 1396d(r). Eric received private duty nursing services in his parents’ home through EPSDT. Defendant’s Proposed Findings of Fact at 146-152.
Plaintiff really wants the services that Eric received prior to reaching the age of 21 to continue indefinitely. Plaintiff’s Closing Argument at 6-9. An injunction to continue to allow Eric to participate in the Children’s Waiver or to create a new program for Eric that looks like the Children’s Waiver or to extend EPSDT eligibility for Eric is not a reasonable modification for the following reasons. First, the creation of a new program just for Eric is not a reasonable
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Case: 1:01-cv-09551 Document #: 166 Filed: 11/07/07 Page 14 of 15 PageID #:1993
modification as a matter of law. Alexander v. Choate, 469 U. S. 287, 303-04 (1985). Second, the remedies stated above are not reasonable because age is an essential eligibility requirement both for the Children’s Waiver and the EPSDT program. Sandison v. Michigan High School Athletic Ass’n., Inc., 64 F.3d 1026, 1034-35, 1036-37 (6th Cir. 1995). Finally, the Children’s Waiver has higher programmatic and administrative costs associated with it. Defendant’s Proposed Findings of Fact at 146-153, 56-59. These include a substantially higher monthly service package since the level of care is a hospital, together with a need for the Medicaid agency to have physicians under contract to review medical necessity claims. Id.
4. In Addition To Programmatic Changes That Are Unreasonable, The Costs That Would Be Incurred By Enjoining The Defendant To Provide Any One Or All Of The Changes Sought Above Are Not Reasonable.
Olmstead teaches that a disabled Plaintiff who seeks a modification to the State’s Medicaid programs pursuant to the ADA and Section 504 must do more than compare the costs of in-home care to institutional care and must do more than compare the costs of his in-home care to the State’s budget for services to the disabled. Plaintiff here has not put on any evidence to show that the costs of the modifications to the programs that she seeks for Eric are reasonable. Indeed, Plaintiff did not put on any proof to show what the cost of 16 hours per day of in-home private duty nursing for Eric would be to the State of Illinois. The closest Plaintiff’s evidence came was speculation that the costs of Eric’s in-home care would be less than the $3,000.00 per day it would cost for Eric to receive care at Edward Hospital.2
Defendant established by reliable and reasonable expert evidence and reliable opinion evidence that the State of Illinois could be subject to unreasonably large costs if Plaintiff were to prevail in this case. Defendant’s Proposed Findings of Fact at 154-194. The liabilities identified are a very real possibility because Alexander v. Choate, 469 U.S. 287, 308 (1985) requires the State to administer its programs with an even hand and protect other disabled individuals from discrimination. Plaintiff’s theory of liability is based on purported medical need alone. The potential liabilities the State faces are also a very real possibility when coupled with Plaintiff’s belief that HSP services should be given on the basis of the participants’ physicians’
2 Plaintiff’s evidence, even if it were not speculative, completely failed to take account of how Defendant actually reimburses hospitals for care provided to Medicaid-eligible persons. Defendant’s Proposed Findings of Fact at 136-39.
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prescriptions. Evidence that the removal of the nursing facility cost comparison would be a fundamental alteration to the HSP is the likelihood for subjecting the State of Illinois to multimillion dollar liabilities on an annual basis were such cost caps to be removed. Defendant’s Proposed Findings of Fact at 154-194. Credible and reliable opinion evidence establishes that, were the cost-neutrality requirements disregarded, demand for HSP services would drive up the program’s costs unreasonably. Id. Additionally, Defendant adopts all the arguments and authorities set forth in his Response to Plaintiff’s Motion in Limine Concerning Todd D. Menenberg and his Response to Plaintiff’s Motion in Limine Concerning Matthew Werner as his argument here. See Civil Docket, 01 C 9551 at Doc. Nos. 148, 150. Accordingly, Defendant is entitled to judgment in his favor as to Counts VI and VII of Plaintiff’s Complaint.
5. To Enjoin Defendant To Modify The Programs To Give Eric Any One Or All Of The Changes Sought Above Would Fundamentally Alter The Medicaid Program.

Defendant adopts and incorporates all the arguments and authorities set forth in Argument II(C)(1)-(4) as his arguments here. The modifications Plaintiff seeks to the Medicaid program to enable Eric to receive services at home are not reasonable on a programmatic basis and would potentially subject the State of Illinois to millions of dollars in additional liability on an annual basis. Thus, the relief that Plaintiff seeks, if granted, would fundamentally alter the Home Services Program and Persons with Physical Disabilities Medicaid Waiver. Defendant is entitled to judgment on his Affirmative Defenses 1 and 2.
WHEREFORE, for the foregoing reasons, Defendant prays that judgment be entered in his favor on all claims and defenses and against Plaintiff.
Respectfully submitted, LISA MADIGAN Attorney General State of Illinois

DATED: November 7, 2007

By: /s/Karen Konieczny________ KAREN KONIECZNY #1506277 JOHN E. HUSTON #3128039 CHRISTOPHER GANGE #6255970 Assistant Attorneys General 160 N. LaSalle St. Suite N-1000 Chicago, IL 60601 (312) 793-2380

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 </s> Case: 1:01-cv-09551 Document #: 170 Filed: 11/11/07 Page 1 of 16 PageID #:2037

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI,

)

Guardian, on behalf of Eric Radaszewski, )

)

Plaintiff,

)

)

vs.

)

)

BARRY MARAM,

)

Director, Illinois Department of

)

Healthcare and Family Services,

)

)

Defendant.

)

No. 01 C 9551 Judge John W. Darrah

Plaintiff’s Reply to Defendant’s Closing Argument
Plaintiff replies to Defendant’s Closing Argument, as follows: I. Defendant Ignores the Seventh Circuit’s Decision in This Case
Defendant’s closing argument fails to address the controlling authority in this case-Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004). As recognized by this Court, the Seventh Circuit established specific elements for plaintiff to prove to obtain relief under the ADA and Section 504 of the Rehabilitation Act. (Tr. p. 27, ln. 15-18). In her closing argument, plaintiff set forth the evidence that proved each of the elements. Rather than addressing those requirements, defendant’s closing argument asks this Court to substitute elements from other court decisions relating to fact situations that differ from the facts and claims here.
Notwithstanding the Seventh Circuit’s decision that Eric stated a claim under the ADA and Section 504, defendant argues on pages 1 to 4 of his closing argument that Eric cannot state a claim under these statutes, advancing arguments that run contrary to the appellate court’s decision. The Seventh Circuit stated with specificity how the type of claim that Eric is making in this case is derived from the two statutes involved and their accompanying regulations as interpreted by the United States Supreme Court in Olmstead v. L.C., 527 U.S. 581 (1999) and the court described what is required to make such a claim. Radaszewski, 383 F.3d at 606-615.
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Similarly, on pages 4 to 14 of his closing argument, defendant makes legal arguments pertaining to eligibility requirements of the waiver programs that ask this Court to disregard the specific requirements of the Seventh Circuit’s decision and of Olmstead. Defendant sets forth HSP eligibility requirements that differ from those included in the Seventh Circuit’s decision and which plaintiff has addressed in pages 2 - 3 of her closing argument. Indeed, defendant argued Eric’s lack of eligibility for the HSP to the Seventh Circuit and that argument was rejected. 383 F.3d 612-614.
Defendant’s proof did not dispute most of the factual issues that the Seventh Circuit identified as relevant to this Court’s decision. Defendant did not put on any evidence to refute that state professionals have found treatment in the community to be appropriate for Eric, that Eric and his parents not oppose community based treatment,1 that a nursing home cannot meet Eric’s medical needs,2 that the level of care that Eric would require in any institutional setting is the equivalent of the private duty nursing he receives at home3, that Eric has severe long term disabilities, that he is eligible for Medicaid,4 that he is at risk of placement in an institution, and
1 The Court found that this requirement was proven. (Tr. p. 65, ln. 12 - 15).
2 In his Proposed Finding of Fact 133, defendant states that plaintiff’s expert witness, Dr. Michael Peters, admitted that there may be a nursing facility that could adequately care for Eric. That finding misstates Dr. Peter’s testimony. In response to the question, “[a]re you aware of any institution, other than a hospital or intensive care unit, which would be able to adequately care for Eric,” Dr. Peters responded: “ I am not aware of a facility in this area that accomplishes that, although I have to admit that question has not really come up. I haven’t actively sought out facilities like this. There may be someplace, but I am not aware of one.”(Tr. p. 116, ln. 11 - 18). As described in plaintiff’s closing argument, pp.3-6, Dr. Peters testified about his extensive experience with nursing homes and that they could not meet Eric’s needs. Similarly in his Proposed Finding of Fact 134, defendant states that Dr. Peters admitted that he would not admit Eric to a hospital under his current condition omitting Dr. Peter’s explanation that because of the quality of care Eric was receiving at home there was no present need to admit him to a hospital. (Tr. p. 134, ln. 20 - 23).
3 Defendant admits that there is no substantive difference in Eric’s medical condition since he turned 21. (Defendant’s response to Plaintiff’s Proposed Finding of Fact 15)
4 Defendant admits that Eric is eligible for and a participant in the Illinois Medicaid Program. (Defendant’s Response to Plaintiff’s Proposed Finding of Fact 3).
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that the cost of care at home would not exceed the anticipated cost of his care in an appropriate institutional setting. II. Illinois has Great Flexibility to Accommodate the Relief Plaintiff Seeks through
Reasonable Modifications in the Policies, Practices or Procedures of the HSP
At pages 9 to 13 of his closing argument, Defendant suggests that if Illinois approves higher HSP funding than the cap it approved for Eric it will be in violation of its waiver. He also argues that the nursing home level of care is an essential aspect of the program. These arguments are not supported by the proof in this case or Illinois’ regulatory scheme for the HSP. Barbara Ginder, the department’s official who oversees Illinois’ home-and-community-based waiver programs, testified that Illinois has great latitude in its waiver to provide home-based care for medically complex persons. She testified that the federal government has no requirement that every person in a waiver have a service plan that costs less than care in a nursing facility, nor does the federal government tell the state how to define a nursing home level of care. (Tr. 378, ln. 10-16). The State can choose what level of care it provides in its waiver, and define what the level of care is. It can choose to determine cost neutrality on an individual basis, or aggregate costs over the entire waiver population, such that some persons have plans that cost more than the institutional level of case and some less. (Tr. 378, ln. 17 - p. 379, ln. 11).
Although defendant argues that the State cannot approve an HSP plan that exceeds a nursing home rate, Ms. Ginder admitted that the exceptional care rates Illinois currently uses in the HSP are fictional rates–not actual nursing home rates, since Illinois changed its nursing home reimbursement policies effective January 1st of this year. (Tr. p. 381, ln. 23 - p. 382, ln. 7).5 She admitted that Illinois has “that kind of flexibility to work around problems to meet the needs
5 Ms. Ginder testified that Illinois continues to use exceptional care rates for persons in the HSP, despite the fact that the State no longer pays these enhanced rates for any residents in nursing homes. (Tr. 380). She testified that there are about 150-200 out of 25,000 persons in the HSP who have exceptional care rates (Tr. 382, ln. 19-21) and that there are thirteen categories of exceptional care rates, developed internally by the Department over time without any rulemaking. (Tr. 225, ln.17 - p. 226, ln. 21). Ms. Ginder testified that $10,000 per month was currently the top exceptional care rate in the HSP, almost double the cap imposed on Eric. (Tr. 385, ln. 9-18). She admitted that without any change in the waiver, the Department could add more exceptional care rates to meet the needs of medically complex persons. (Tr. 226, ln. 8 - 21).
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of persons who have medical complexity” in its home-and-community based program. (Tr. 382, ln. 5-11). She also agreed that once the federal government approves a waiver, the State is not locked into its terms–it can modify the waiver. (Tr. 379, ln. 15-20). She testified that Illinois has modified its waivers on at least 10 occasions in the past 5 years, and each modification was approved by the federal government. (Tr. 379, ln. 19 - p. 380, ln. 8). She admitted that the federal government has issued a letter to State Medicaid agencies encouraging them to use home -and-community-based waivers to meet the community integration contemplated by Olmstead and to work with the federal government to overcome hurdles in rules and requirements that prevent such community integration. (Tr. 377, ln. 15-25, Pl. Exh. 51).6
As Ms. Ginder admitted, the waiver document that is Defendant’s Exhibit 14 is not part of Illinois’ HSP rules. (Tr. 376, ln. 22 - p.377, ln. 13). The Seventh Circuit described the HSP by reference to Illinois’ administrative rules for the program. 383 F.3d at 602-603. Contrary to defendant’s argument that nursing home level of care is the “very essence” of the program, Illinois’ HSP rules do not limit participation to those who require only a nursing home level of care.7 The HSP rules more broadly provide that the purpose of the program is to prevent unnecessary institutional care of individuals who may instead be satisfactorily maintained at home at a lesser cost to the State. 89 Ill.Admin.Code §676.10(a). The HSP rules expressly define the program as “a State and federally funded program designed to allow Illinois residents, who are at risk of unnecessary or premature institutionalization, to receive necessary care and services
6 Defendant argues that deviation from the waiver policies is per se unreasonable, but reasonable modification in a State’s Medicaid rules, policies and practices to prevent unjustified segregation of persons with disabilities in institutions is exactly what is contemplated in the ADA as interpreted in Olmstead and Radaszewski, as well as the cases cited with approval in Radaszewski: Fisher v. Oklahoma Healthcare Authority, 335 F.3d 1175 (10th Cir. 2003)(State may violate ADA when it caps the number of drug prescriptions it will fund through Medicaid), (Townsend v. Quasim, 328 F.3d 511, 516-20 (9th Cir.2003)(Washington’s Medicaid policy limiting community-based care to categorically needy Medicaid recipients must be altered to include persons who are in the medically needy category as well, unless doing so would fundamentally alter the State's Medicaid programs).
7 Under Illinois law, statements of general applicability, that implement, apply or interpret policies, like Medicaid policies, must be promulgated as rules under the Illinois Administrative Procedure Act. Senn Park Nursing Center v. Miller, 104 Ill.2d 169 (1984).
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in their homes, as opposed to being placed in an institution.” 89 Ill.Admin.Code §676.30(j)(emphasis added). Even without a change in its HSP rules, Illinois can accommodate plaintiff’s request to continue the home care services it repeatedly approved as cost effective for Eric while he was in the MFTD.8 III. Defendant’s Arguments that the Relief Plaintiff Seeks is Unreasonable
Mischaracterize Plaintiff’s Evidence and Arguments
Defendant argues at pages 13-14 of his brief that the nursing services Eric received while he was in the MFTD were not waiver services, but EPSDT services. This distinction is not relevant. In Radaszewski, the court noted that defendant made this same point, but did not find the distinction relevant to its decision. 383 F. 3d at 609 referencing 383 F.3d at 602, n.1. This EPSDT argument is a red herring. The Department’s web page describing the MFTD lists private duty nursing as an MFTD service. (Pl. Exh. 43). It also makes clear that the main service MFTD participants receive is nursing. Id. It reports that nursing services accounted for $49.9 million of the $52.2 million (96% of costs) spent on children in the MFTD during the 2004 waiver year. Id. Whether they are EPSDT services or not, the cost of all the services children in the MFTD receive at home, including the nursing services, may not exceed the estimated cost of the institutional care the children in the MFTD would otherwise require. (Ginder Testimony, 219, ln. 18-23, Pl. Exh. 41, p. 003610, 6933, Pl. Exh. 42, p. 6984-6985). HFS officials, including its medical professionals, approved MFTD service plans for Eric with 16 hours per days nursing care because the plans cost considerably less than the estimated cost of the hospital care he would otherwise need at State expense.9 (Pl. Exh. 1, HFS 006934-
8 Defendant argues that Bertrand v. Maram, 495 F.3d 452 (7th Cir. 2007) approves the practice of limiting services in a Medicaid waiver through various caps. Bertrand is not applicable here. The issue in Bertrand was whether a specific provision of the Medicaid statute, 42 U.S.C. §1396a(a)(8), required Illinois to provide the waiver services at issue more promptly. The case did not involve a claim under the ADA as interpreted in Olmstead and Radaszewski. As the federal government explained in its letter to State Medicaid Directors in the aftermath of the Olmstead decision, compliance with federal Medicaid rules is not the same as compliance with the ADA. (Pl. Exh. 51, HFS 300994).
9 At page 11 of his argument (and in his response to plaintiff’s proposed finding of fact #36d) defendant states that if a hospitalized Medicaid-eligible individual would be treated on a
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Case: 1:01-cv-09551 Document #: 170 Filed: 11/11/07 Page 6 of 16 PageID #:2042
6935; Pl. Exh. 4, p. HFS 007707; Pl. Exh. 5, p. HFS 007711; Pl. Exh. 6, p. HFS 007014; Pl. Exh. 9, p. HFS 007869). These facts did not change when Eric turned 21. As defendant has admitted, Eric’s medical condition has not substantively improved since he turned 21 in 2000. (Def. Response to Pl. Finding of Fact #25).
At pages 11-12 of his closing argument, defendant wrongly intimates that plaintiff is attempting to get whatever care Eric’s physician prescribes irrespective of cost neutrality requirements. Plaintiff is seeking the care the State’s own medical professionals previously approved for Eric as a cost-effective alternative to institutional level of care that Eric needs.10 As Ms. Ginder admitted, Illinois has the flexibility to offer special enhanced rates for service plans for medically complex persons in the HSP. The evidence is clear that the HSP is very cost effective. With respect to 2005, HFS reported to the federal government that there were 19,827 participants in the waiver and that the cost per participant for care in the community was $19,140, while the estimated cost for care in the institutional setting was $32,816 per participant, a savings of $13,676 per participant (in total, a projected costs savings of $271,154,052). (Ginder Testimony, Tr. p. 388, ln. 24 - p. 390, ln. 4; Def. Exh. 16, p. HFS 301250). Plaintiff’s request for relief can be accommodated within the HSP program. IV. Defendant Has Not Proved A Fundamental Alteration Defense
In his closing argument at page 14 defendant contends that he has established “by reliable and reasonable expert evidence and reliable opinion evidence that the State of Illinois could be subject to unreasonably large costs if Plaintiff were to prevail in this case.” (Emphasis added).
long-term basis in a hospital because a nursing facility cannot be found, the Illinois Medicaid program will not reimburse the hospital more than the nursing facility rate, citing 89 Ill.Admin.Code §140.569, and 42, U.S.C. §1396l. These provisions limit reimbursement to hospitals that are providing a nursing home level of care to patients awaiting a discharge to a nursing home. That is not what is at issue in this case, where Eric needs a hospital level of care, as HFS itself found, not a nursing home level of care.
10 While in the MFTD, Eric did not receive all the nursing services Eric’s physicians prescribed. Eric’s physician repeatedly prescribed 24 hours nursing care as medically necessary for Eric while he was in the MFTD, but HFS physicians approved 16 hours per day based on their determination that Eric’s mother was trained and could perform 8 hours of nursing. See, e.g., Pl. Exh. 5, pp. HFS 007708-7709.
6

Case: 1:01-cv-09551 Document #: 170 Filed: 11/11/07 Page 7 of 16 PageID #:2043
The Seventh Circuit, recognizing that the State has the burden of proof of a fundamental alteration defense, stated that Illinois may be able to show that in view of its obligations to all individuals with similar disabilities, “it cannot fund a home placement for Eric without fundamentally altering the care it provides to others with similar needs.” 383 F.3d at 614. The court then continued:
But the evidence might also show something different to be true. If the State would have to pay a private facility to care for Eric, for example, and the cost of that placement equaled or exceeded the cost of caring for him at home, then it would be difficult to see how requiring the State to pay for at-home care would amount to an unreasonable, fundamental alteration of its programs and services.
Id. The evidence does show that the State would have to pay a private facility to care for Eric. Defendant admits that Illinois does not own or operate facilities for long-term care persons with disabilities other than veterans’ nursing homes. (Def. Resp. Pl. Finding of Fact, 36f). As set forth on pages 12 and 13 of plaintiff’s closing argument, it would cost less to care for Eric at home than in an institution that would meet his medical needs.11
Notwithstanding this evidence, defendant has sought to prove his fundamental alteration defense with the testimony of two expert witnesses: Todd D. Menenberg and Matthew Werner. Neither witness provided cost projections that relate to persons who have medical needs similar to Eric Radaszewski. They did not provide reliable evidence that assists this Court in determining any cost impact that would result from providing Eric with the level of service that HFS
11 On page 14 of his closing argument, defendant claims that plaintiff did not put forth any proof to show what the cost of 16 hours per day of in-home nursing would cost the State. Defendant overlooks Donna Radaszewski’s testimony that the cost of in-home nursing from 2000, to the present is $29.55 per hour (Tr. p. 56, ln. 11 - 23) and the Report of his expert, Matthew Werner, which stated that the cost of Eric’s care at home in 2005 was $20,499 per month. (Def. Exh. 3, p. HFS 009601). In his Response to Plaintiff’s Proposed Finding of Fact 36b, defendant argues that Mr. Werner’s computations (Id.) which he used in his expert report relied upon by the State, are not relevant because the level of care is provided pursuant to a state court injunction. Defendant’s assertion is a distinction without a difference. As Mr. Werner testified, the cost data collected was from the State’s data warehouse consisting of “all of the medical assistance spending for Eric by each state fiscal year . . . .” (Tr. p. 562, ln. 4 - 7).
7

Case: 1:01-cv-09551 Document #: 170 Filed: 11/11/07 Page 8 of 16 PageID #:2044
continuously approved and reimbursed from 1995 until 2000. In Kumho Tire Co., Ltd v. Carmichael, 526 U.S. 137 (1999) the Supreme Court explained
that its earlier decision in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) held that Federal Rule of Evidence 702 imposes a special obligation upon a trial judge to "ensure that any and all scientific testimony ... is not only relevant, but reliable. 509 U.S., at 589 . . . .” 526 U.S. at 148. The Seventh Circuit has explained that the relevance requirement of Daubert is “[t]o determine whether the evidence or testimony assists the trier of fact in understanding the evidence or in determining a fact in issue. In other words, the suggested scientific testimony must fit the issue to which the expert is testifying.” Chapman v. Maytag Corp., 297 F.3d 682, 687 (7th Cir. 2002) [citing from Porter v. Whitehall Labs., Inc., 9 F.3d 607, 616 (7th Cir. 1993)].
Plaintiff has submitted motions in limine and accompanying memoranda, which the Court has under consideration, which asked the Court to bar the expert reports and proposed testimony of Mr. Menenberg and Mr. Werner on the bases that their reports and testimony are not relevant or reliable. Plaintiff will not repeat the arguments she made with respect to those motions but will review for the Court how the evidence proffered by HFS fails to demonstrate that a fundamental alteration would occur if Eric were to prevail and maintain the reimbursement he has and continues to receive.
Todd Menenberg Mr. Menenberg, without any explanation or rationale, testified that two groups of disabled persons would seek increased benefits if Eric were to prevail: (1) current enrollees in the HSP and (2) persons presently residing in nursing homes who would return to the community. (Tr. p. 410, ln. 21 - p. 411, ln. 2). Group 1 - Present Participants in the HSP Mr. Menenberg estimated the size of this group as approximately 26,000 persons. (Tr. p. 421, ln. 5). He calculated that plaintiff seeks care that is 250% of the $4593 monthly reimbursement approved for Eric in 2000. (Tr. p. 421, ln. 3 - 4). He then projected that all 26,000 HSP participants, a majority of whom were substantially below their service cost maximums, would be able to request from HFS and receive their service cost maximums at an annual cost of about 200 plus million dollars or a greater cost if HSP participants received 10 or
8

Case: 1:01-cv-09551 Document #: 170 Filed: 11/11/07 Page 9 of 16 PageID #:2045
20 percent more than their service cost maximum. (Tr. p. 421, ln. 1 - 19). His justification for these projections was that Eric is seeking services beyond what the HFS has chosen to offer in its administration of the HSP (Tr. p. 411, ln. 22 - 25 ) with the result that for all other persons in the HSP, utilization management and review12 would be eliminated. (Tr. p. 411, ln. 9 - 12). All HSP participants could ignore their present service plans and receive whatever they asked for. (Tr. p. 421, ln. 12 - 13, p. 438, ln. 7 - 12).
Mr. Menenberg’s testimony provided no reasons why this result would occur. He acknowledged that not all 26,000 persons would be eligible for a 250 percent increase and his projections were “just to show the mechanics.” (Tr. p. 422, ln. 3 - 14). When the Court inquired how Mr. Menenberg determined which of the 26,000 persons would avail themselves of an increase in benefits and what characteristics these persons would possess, Mr. Menenberg responded that he didn’t make such a determination. (Tr. p.423, ln.13 - p 424, ln. 3). Mr. Menenberg offered no nexus between the circumstances of all 26,000 HSP participants and Eric’s circumstances. (Tr. p. 426-427). In response to the Court’s inquiries as to how many other participants would be similar to Eric and what additional costs they would seek, Mr. Menenberg responded that he didn’t know, (Tr. p. 430, ln. 3 -5), and that all he was presenting was a model that indicates the result if all 26,000 HSP participants requested and received the maximum amount. ( Tr. p. 435, ln. 4 - 9). His testimony made no attempt to compare the medical condition of persons in the HSP with Eric. Thus, he provides no guidance to the Court of the dollar impact of his assumption.
Although conceding that Eric needs the nursing services his mother is requesting in this case, [“My understanding in this case, Eric R is asking for all the nursing care that he needs.”] (Tr. p. 465, ln. 6 - 7), and that such services in Eric’s case are “intensive nursing care,” (Tr. p. 439, ln. 9), Mr. Menenberg opined that the majority of services offered under the HSP are not nursing care, but rather home health services, respite care, vacuuming, cleaning and preparing meals, (Tr. p. 439, ln. 10 - 13) and that they are not medically necessary. (Tr. p. 509, ln..6-15). Although he admitted that the “overwhelming majority” of participants would not require Eric’s
12 Mr. Menenberg testified that what restricts services in the HSP is the service plan. (Tr. p. 423, ln. 7-11).
9

Case: 1:01-cv-09551 Document #: 170 Filed: 11/11/07 Page 10 of 16 PageID #:2046
intensive nursing care, he nonetheless contended that other HSP participants would take their increase in the other waiver services he described whether they medically needed those other services or not. (Tr. p.439, ln. 3-14), p. 441, ln. 6 - 18).
In his closing argument on page 10, defendant appears to contest Mr. Menenberg’s conclusion arguing “that each component of a program under aegis of a home and communitybased Medicaid Waiver is subject to a medical need requirement . . . .” Mr. Menenberg’s premise simply ignores the distinction between services that are medically necessary and those that are not. As defendant’s witnesses Ginder and Werner testified, medical necessity is a requirement for Medicaid reimbursement. (Tr. p. 388, ln. 15-17, p. 585, ln. 21 - p. 586, ln. 4). The services Eric seeks are medically necessary and would be reimbursable by Medicaid. The additional waiver services that persons in the HSP would request, according to Mr. Menenberg, would likely not be medically necessary and not Medicaid reimbursable because virtually all current HSP participants have plans of care that are below their respective SCM’s. And, Mr. Menenberg admited that he has no reason to believe that the service plans of any of the HSP participants are not sufficient to allow them to remain safely in the community. (Tr. p. 505, ln. 11 - 15). Thus, those individuals are different than Eric. Mr. Menenberg’s analysis does not take medical necessity into account. His maximum projections of the impact on 26,000 HSP participants if Eric prevails are based upon unsupported premises and the methodology he employs consists solely of mathematical calculations
Group 2 - Present Residents in Nursing Facilities Again without any stated rationale, Mr. Menenberg assumed that persons in nursing homes would be impacted if Eric prevails. With respect to this group, he projected a cost of $32 - 33 million dollars (Tr. p. 458, ln. 24 - 25). He admitted that he had no reason to believe that persons in nursing homes were receiving inadequate care. (Tr. p. 515, ln. 8-22). He offered no testimony that compared Eric’s medical needs to the needs of nursing home residents who he projected would be affected. Mr. Menenberg undertook an analysis that contradicts the analysis he presented for persons participating in the HSP. For the latter group, Mr. Menenberg calculated the dollar impact by disregarding the existence of any existing service plan. With respect to persons in nursing facilities, Mr. Menenberg’s analysis inconsistently determined cost
10

Case: 1:01-cv-09551 Document #: 170 Filed: 11/11/07 Page 11 of 16 PageID #:2047
by creating service plans for persons in nursing facilities based upon the assessment of HFS nurse, Roberta Sue Coonrod. (Tr. p. 466, ln. 4 - 8, p. 644, ln. 6 - p. 645, ln. 6).
Moreover, Mr. Menenberg’s testimony regarding the impact on this second group is inaccurate and utilized methods that are unreliable. Mr. Menenberg testified that under his analysis 12 percent of approximately 9,000 residents of nursing facilities under the age of 60 would return home if there were no controls on their home services. (Tr. p. 458, ln. 6 - 8). He testified that he calculated the 12 percent figure by compiling the answers to three questions on the Minimum Data Set (MDS), a document that all nursing facilities complete quarterly for each resident. (Tr. p. 460, ln. 4 - 10). Those questions were: (1) whether the resident indicated a preference to return to the community; (2) whether the resident had a support person positive toward discharge; and (3) whether the resident’s stay at the facility was projected to be greater than 90 days. (Tr. p. 460, ln. 11 - 20). He testified that 216 of the approximately 9,000 persons answered the three questions in the manner he described. (Tr. p. 461, ln. 4). At this point his testimony became unclear. Immediately after he testified that 216 persons answered the questions he stated that 1,100 of the 9,000 persons answered these questions. (Tr. p. 461, ln. 8 9, p.461, ln. 24 - p. 462, ln. 2). In response to the Court’s question of how many people answered this form, Mr. Menenberg testified, “1,100.” (Tr. p. 463, ln. 19-20). What Mr. Menenberg did not testify to is explained in the testimony of Dr. Samuel Flint. Dr. Flint explained that Mr. Menenberg did not find 1,100 persons who had answered the three questions in the manner Mr. Menenberg had established. Rather, less than 216 persons had answered the three questions in the sought for manner. Mr. Menenberg arrived at 1,100 persons by undertaking an extrapolation to arrive at 1,100 persons and assumed that all 1,100 persons would have answered the three questions in the established manner. (Tr. p. 632, ln. 24 - p. 633, ln.3). In fact the 216 number is high because for 193 of the 216, the answer to the third question, the expected duration of stay at the nursing facility, is “uncertain.” (Tr. p. 632, ln. 10 - 16).
Mr. Menenberg testified that his analysis was not intended to comply with the rules of statistics. (Tr. p. 459, ln. 17 - 20). Because he was not attempting to meet those standards, Mr. Menenberg was able to take a census, the responses to the three questions of all of the 9,000 persons, and make an extrapolation from a subset of the census - the 216 persons - to include
11

Case: 1:01-cv-09551 Document #: 170 Filed: 11/11/07 Page 12 of 16 PageID #:2048
non-responders and attain the 1,100 persons he used in his cost projections. (Flint Testimony, Tr. p. 628, ln 3 - 6). Dr. Flint explained the unreliability of such a calculation - when you ask everybody the same questions you cannot assume that people who didn’t respond are similar to persons who did respond and then extrapolate. (Tr. p. 628, ln 16 - 18). When he analyzed characteristics of the responders and non-responders, Dr. Flint found that the responders were sicker. (Tr. p. 631, ln. 17 - 22).
Mr. Menenberg’s analysis then took a non-random judgmental sample of 28 persons chosen not by Mr. Menenberg, but by HFS staff, from the group of 216 to obtain the basis for his extrapolation of costs to the 1,100 persons. (Flint testimony, Tr. p. 633, ln. 15 - p. 634, ln. 9). Dr. Flint explained that judgmental sampling is used by CPA’s in doing audits of historical data and that the literature indicates that because it is a non-random sample it is unreliable to extrapolate from the results of the judgmental sample. (Tr. p. 634, ln. 10 - 20). The assessment of the 28 MDS’s, as explained by Mr. Menenberg, was undertaken by one person - an HFS nurse (Tr. p. 466, ln. 4 - 11). Dr. Flint explained that to ensure reliability a conventional approach would have required at least two people who would independently undertake assessments. (Tr. p. 640, ln. 19 - p. 641, ln. 4). Ms. Coonrod admitted that in making assessments of need for services she did not take into account family members who might be available to provide assistance to the nursing facility resident returning home. (Tr. p. 547, ln. 21 - p. 548, ln. 1). Dr. Flint pointed out the inaccuracy of this approach as violating HFS’s own policies in determining reimbursable need for persons in the HSP. (Tr. p. 641, ln. 5 - 21). By not taking into account the role of family members, Mr. Menenberg’s cost figures were inflated.
Dr. Flint testified that the standard type of analysis used by businesses and insurers to determine anticipated expenses is to use actuarial methodology taking into account the number of people who are covered for any particular services, the services that are covered, the limitations on those services, the cost of those services, the anticipated utilization of the covered population for those services, and the cost of administration. (Tr. p. 621, ln. 9 - p. 622, ln. 4). He explained that he knew from working with HFS, that the state used actuaries on a regular basis for purposes of negotiating such items as HMO rates. (Tr. p. 622, ln 10 - 14). Mr. Menenberg did not use this methodology. When asked by the Court, Mr. Menenberg said he didn’t think any of the 1,100
12

Case: 1:01-cv-09551 Document #: 170 Filed: 11/11/07 Page 13 of 16 PageID #:2049
persons who were the basis for his cost projection, would need the nursing services that Eric seeks. (Tr. p. 465, ln. 19-22). Mr. Menenberg’s chosen methodology and the cost projections it makes with respect to this second group does not provide the Court any assistance in determining the impact, if any, of Eric maintaining the services he presently receives.
Matthew Werner Defendant’s second expert witness was Matthew Werner, the former advisor to the defendant on health care finance and the former chief of HFS’s Bureau of Rate Development and Analysis. (Tr. p. 555, ln. 8 - 16, p. 556, ln. 17 - 18). As with the testimony of Mr. Menenberg, Mr. Werner’s testimony and report provide no guidance to this Court in determining whether continuing the present reimbursement for Eric’s care at home would have any impact on the State’s finances. Mr. Werner assumed that persons in the HSP and in nursing homes would be affected if Eric were to prevail, but he provided no rationale for these assumptions. He took the cost of Eric’s care while in the MFTD, and increased it to include cost for 24 hour/day of nursing care. He concluded that the potential maximum impact if 10 percent of current nursing facility residents and 10 percent of current HSP recipients were to receive such 24 hour/day nursing care, the cost to the State would be 2.2 to 2.3 billion dollars. (Def. Exh. 3, p. HFS 009598; Tr. p. 575, ln. 22 - 25). However these dollar amounts are not of any use to the Court. As explained by Mr. Werner, these numbers are the “potential maximum impact” of Eric receiving 24 hours of care each day. (Tr. p. 585, ln 11 - 12, Def. Exh. 3, p.HFS 009598 ). They are not predictions. (Tr. p. 585, ln 13 - 16). Mr. Werner acknowledged that the 10 percent projections were not a prediction but rather were included for “illustration purposes.” (Tr. p. 588, ln. 25 - p. 589, ln. 5). He testified that he did not know how many residents in nursing homes would shift to the community. (Tr. p. 570, ln. 15 -16). He explained that since he didn’t know how many people would shift he also included in his report a one percent number so a calculation “could be made flexible.” (Tr. p. 570, ln. 17 - 18). He provided no method by which any prediction of actual cost could be made. In response to the Court’s question whether Mr. Werner knew how many people would qualify to receive the same reimbursement as Eric, Mr. Werner testified, “I don’t know.” (Tr. p. 570, ln. 23
13

Case: 1:01-cv-09551 Document #: 170 Filed: 11/11/07 Page 14 of 16 PageID #:2050
- p. 571, ln. 1). When the Court inquired whether Mr. Werner knew if any would shift, Mr. Werner responded that he didn’t know for certain that anyone would shift, but it would be likely that people would shift. (Tr. p. 571, ln. 2 - 4). Mr. Werner admitted that he had no knowledge of Eric’s medical condition (Tr. p. 584, ln. 24 - p. 585. ln. 1). Similarly, he did not know how Eric’s medical condition compared to the one percent of persons currently in nursing facilities or persons in the HSP waiver. (Tr. p. 585, ln. 2 - 9). He testified that he had no reason to believe that persons in nursing facilities and persons in the HSP did not have their medical or care needs met in their current setting. (Tr. p. 583, ln. 23 - p. 584, ln. 10). He testified that his analysis was not intended to indicate how many hours of care people who shifted would actually need. (Tr. p. 590, ln. 20 - 21).
Unlike Mr. Menenberg whose analysis of impact is based on the erroneous assumption that all waiver services do not have to be medically necessary, Mr. Werner testified that medical necessity is the standard in both community and institutional settings. (Tr. p. 585, ln. 21 - p. 586, ln. 4). Yet, without explanation, his analysis ignores the very concept he admits is the Medicaid standard.
At trial the Court explained that the decision of the Seventh Circuit obligated the Court “to determine the impact that a ruling in favor of the plaintiff would have on the state and whether it would fundamentally alter the care the state provides to others with similar needs.” (Tr. p. 437, ln. 2 - 5). Based upon the above, defendant has offered no proof that there would be any impact if Eric continued to receive the reimbursement he has been receiving. Any disabled persons presently in a nursing facility or receiving medical care through the HSP and whose needs are met are different than Eric whose medical needs cannot be met in a nursing facility and under the HSP’s reimbursement cap set at a nursing facility rate. Neither of defendant’s experts make any attempt to account for this fact despite questions on this point by the Court. If, as both defendant’s experts acknowledged, medical needs are currently being met for persons in nursing facilities and those in the HSP, the only source of increased cost are persons aging out of the MFTD whose needs cannot be met under the HSP’s present cap. Defendant’s witness Barbara Ginder testified that on average only ten children age out of the MFTD program each year. (Tr. p. 231, ln. 4 - 5). As the Seventh Circuit noted, the MFTD, like the HSP has cost neutrality
14

Case: 1:01-cv-09551 Document #: 170 Filed: 11/11/07 Page 15 of 16 PageID #:2051
requirements. Radaszewski, 383 F.3d at 613. Ms. Ginder’s testimony confirmed that home care, including the nursing care, for MFTD participants costs the State less than the projected cost of their institutional care. (Tr. p. 223, ln. 12 -19). Defendant’s witness Matthew Werner testified that Eric’s reimbursement costs while in the MFTD waiver were not representative of MFTD recipients and were almost twice the cost of the average reimbursement for that group. (Tr. p. 587, ln. 20 - p. 588, ln. 2). Ms. Ginder testified that Eric Radaszewski was “unique and different from other people that we were looking at that had medically fragile technology dependent needs.” (Tr. p. 392, ln. 24 - 393, ln. 5). Thus, the evidence in total indicates minimal or no impact, and possible cost savings if Eric obtains the relief plaintiff requests.
Conclusion For the foregoing reasons and the reasons stated in her closing argument, plaintiff requests that the Court enter judgment in her favor.
Respectfully submitted, s/Sarah Megan Sarah Megan #6182931 Attorney for Plaintiff Prairie State Legal Services, Inc. 201 Houston St., Suite 200 Batavia, IL 60510 (630) 232-9420
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Case: 1:01-cv-09551 Document #: 170 Filed: 11/11/07 Page 16 of 16 PageID #:2052
Certificate of Service I hereby certify that on November 11, 2007, I presented the foregoing Plaintiff’s Reply to Defendant’s Closing Argument with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following:
Karen Elaine Konieczny Karen.Konieczny@Illinois.gov John E. Huston John.Huston@Illinois.gov Christopher Samuel Gange Christopher.Gange@Illinois.gov
Respectfully submitted, s/Sarah Megan Sarah Megan Bar Number 6182931 Attorney for Plaintiff 201 Houston St., Suite 200 Batavia, IL 60510 Telephone: (630) 232-9420 Fax: (630) 232-9402 E-mail: smegan@pslegal.org
16

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IN THE CIRCUIT COURT Or- THE EICiIITEENTH JUDICIAL CIRCUIT DUPAGE COUNTY. (!.I.rNOIS

DONNA RADASZEWSKI, Guardian, on behalf of Eric Radaszewski,

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Plaintiff,

vs.

JACKIE GARNER, Director of Illinois Department)

of Public Aid,

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Defendant.

)

No. 00 CH 1475 Judge Mehling

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DEFENDANT'S ANSWER TO PLArNTIFF'S SUPPLEMENTAL COMPLAfNT r-OR rNJUNCTIVE RELIEF

Defendant JACKIE GARNER, Director of the Illinois Department of Public Aid, submits

this Answerto Plaintiffs Supplemental Complaint for Injunctive Relief.

FIRST DEFENSE

Counts I, II, HI and IV of Plaintiffs Supplemental Complaint for Injunctive Relief are

moot.

SECOND DEr-ENSE

Count VI of Plaintiffs Supplemental Complaint for Injunctive Relief is barred by the

Eleventh Amendment to the United States Constitution.

THIRD DEFENSE

Plaintiff canot bring Count VI of her Supplemental Complaint for Injunctive Relief

against the Director of the Illinois Department of Public Aid.

FOURTH DEFENSE

Defendant answers the numbered paragraphs of Plaintiffs Supple;;m:.:.:e:.:n:::ta::.I...:C:;.:o~m;,;L,;~~~_--,

Iniunctive Relief as follows:

EXHIBIT
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COUNT I: VIOLA liON Or: ILLINOIS ADMINISTRA TlVE PROCEDURE ACT 5 II.CS. 10011 et seq .

I. Plaintiff Donna Radaszcwski is the guardian for her disabled son, Eric Radaszewskl She brings this action in her capacity as Eric's guardian on his behalf.

ANSWER: Defendant admils the allegations contained in "1.

2. Plaintiff and Eric reside in Du Page County, Illinois.

ANSWER: Defendant admits [he allegations contained in ~2.

3. Defendant Ann Patla is the Director of the Illinois Department of Public Aid (IDPA).

ANSWER: Defendant admits that Ann Patla was IDPA's Director at the time this case

was initially brought and avers that Jackie Garner is lDPA's current Director.

4. lOPA is the state agency charged with the administration of the Medicaid program in lIIinois .
ANSWER: Defendant admits the allegations contained in ~4.

S. Eric, born August 5, 1973, is 21 years old.

ANSWER: Defendant deny that Eric wasbom on August 5, 1973 and that he is presently

21 years old. Defendants aver that Eric was born on August 5, 1979 and is currently 22 years

old.

6. Eric is disabled and receives disability benefits under the federal Supplemental Sc;:curity Income program. He is eligible for Medicaid.

ANSWER: Defendant admits the allegations contained in ~~.

7. On February (2, 1992. Eric was diagnosed with medulloblastoma, a brain cancer.

ANSWER: Defendant admits the allegations contained in ~7.

8. On December 24. 1993. Eric suffered a mid-brain stroke after he had undergone surgery, radiation and chemotherapy as treatment for the cancer.

ANSWER: Defendant admits the allegations contained in ~8. -2-

EXHIBIT

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9" The disease, stroke and the subsequenl Ireatment have left Eric with a very low level of btldy and mental functioning. He is highly medically fragile.
ANSWER: Defendant admits the allegations contained in ~9.

10. It is the opinion of Eric's physician that Eric requires private duty nursing services of a registered nurse, one-on-one, 24 hours per day in order to survive.

ANSWER: Defendant admits that Eric's physician recommends thaI he receive 24 hours

per day of registered nursing care, but is without sufficient knowledge to form a belief as to the

correctness of this recommendation.

II. For the past five years, Eric received private duty nursing care at home by registered nurses 16 hours per day, with 336 add itional hours per year of services from registered nurses to provide Eric's parents respite. The balance of his 24 hour per day care came from his parents, who were specially trained to provide the necessary services to avoid medical crisis for Eric.

ANSWER: Defendant admits that, from 1995 to 2000, Eric received 16 hours per day of

private duty nursing care at home by registered nurses, with 336 additional hours per year of

respite care. Defendant is without sufficient knowledge to admit or deny that the balance of

Eric's care was provided by his parents or that they were specially trained.

12. This care was paid for by Medicaid. ANSWER: Defendant admits the care described in ~II, other than any provided by

Eric's parents, was paid for by Medicaid.

13. The Medicaid program is a joint federal and state funded program enacted to provide necessary medical assistance to needy disabled persons and families with dependent children,
whose income and resources are insufficient to meet the cost of care":: 42 U.S.C. § 1396,305
ILCS SIS-/.

ANSWER: Defendant admits the allegations contained in ~13.

14. Each State panicipating in the Medicaid program must submit a Medicaid plan to the
Secretary of Health and Human Services (HHS) for approval. 42 U.S.C. § 1396.

ANSWER: Defendant admits the allegations contained in ~ 14. " ·3·

EXHIBIT

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EXHIBIT

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15. The plan mllst specify the amount. duration, and scope of each service that the state provides in its Medicaid program. 42 U.S.c. § \J96a(a)( I0).42 U.S.c. § I 396d(al. 42 CFR §440.230(a).
ANSWER: Defendant admits the allegations contained in ~ 15.
16. Private duty nursing is a service that states may choose to include in their Medicaid
plans. 42 U.S.c. § I 39Gd(a)(8), 42 U.S.c. § I 39Ga(a)( IO)(C). 42 CrR §§440.22S, 440.XU.
ANSWER: Defendant admits the allegations contained in ~IG.
17. Federal regulations define "private duty nursing" as nursing services provided to persons who require more individual and continuous care than is available from a visiting nurse or than is routinely provided by the nursing staff of a hospital or nursing facility. 42 CFR §440.BO. Under the regulation. the state has the option to provide private duty nursing services in the recipient's home. at a hospital or at a skilled nursing facility. 42 CFR §440.80(c)
ANSWER: Defendant admits the allegations contained in ~ 17.
lB. [n addition to providing the Medicaid coverage described in their Medicaid plans, States have .the option of requesting approval from HHS to provide home and community based care services for persons who would otherwise require institutional care that would be paid for by Medicaid. These services are provided under a range of Medicaid waiver programs that are authorized under 42 U.S.c. §§ I396a(a)(l O)(A)(ii)(VI), 1396n(b)-(e). Under this waiver authority, the Secretary of HHS may grant waivers of certain otherwise applicable Medicaid requirements, including for example financial eligibility requirements and service limitations. [d.
ANSWER: Defendant admits the allegations contained in ~18.
19. Illinois has submitted to HHS and obtained federal approval of its Medicaid plan.
ANSWER: Defendant admits the allegations contained in ~19.
20. The Illinois Medicaid plan includes broad coverage for private duty nursing. with the sole conditions that the private duty nursing is recommended by a physician. that prior approval from the state agency is sought. and that the nursing care not be proVided by a relati ve. The plan includes no limitations as to cost or as to where these services must be provided. The sections of the (\Iinois Medicaid Plan relating to private duty nursing services, Exhibit A. are attached to and made a pan of this Complaint.
ANSWER: Defendants admits that the sections of Illinois' prior Medicaid Plan relating
to private duty nursing services are attached to Plaintiffs initial Complaint for Injunctive Relief.
Defendant denies each and every other allegation contained in ~20. Defendant avers that a
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Medicaid Plan amendment. delcling all refercnces to privale dUlY nursing services. was approved

by HHS on February 2. 200 I. wilh a rt:lwaclive effective date of January I. 2001.

21. [[[inois has also expanded ilS Medicaid program by including several home and community based care Medicaid waivt:r programs approved by Ihe Secretary of HHS.

ANSWER: Defendanl admils (he allegations contained in ~21.

22. Under the Home Services waiver program ("HSP"), Illinois provides services Ihal arc· not otherwise covered under the Medicaid program, including personal care and homemaker services, to enable disabled adults to remain in their home. The cost of services which may be provided to recipients under this waiver program is limited, however, to the average Medicaid cost of care for persons in skilled nursing facilities.

ANSWER: Defendant admits the allegations contained in ~22.

23. There is no ~23 in Plaintiffs Complaint for Injunctive Relief.

24. Despite the language of the Illinois Medicaid plan covering private duty nursing with only the limitations described in paragraph 20, above, it is Defendant's unwritten policy to impose additional restrictions that eliminate private duty nursing for persons aged 21 or older and instead provide such services only through the HSP, its limited and community based Medicaid waiver program.

ANSWER: Defendant denies each and every allegation contained in 124.

25. As Eric's 21 st birthday approached, state officials advised Eric's mother to contact the Office of Rehabilitation Services ("ORS") to apply for the HSP as the sole avenue to obtain continued private duty nursing services for Eric.

ANSWER: Defendant admits that state officials contacted Plaintiff regarding

transitioning Eric to the HSP program. but avers that such contact first occurred in 1997. after

Eric became 18.

26. On February 18,2000. ORS issued a decision limiting Eric's eligibility for HSP services to a "service cost maximum" of $4,593 per month.

ANSWER: Defendant admits the allegations contained in ~26.

27. This service cost maximum amount reduced funding for Eric's private duty nursing services to the equivalent of five hours per day.

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ANSWER: Defendant is without sufficient knowledge (0 admit or deny the allegations
contained in ~27.
28. Plaintiff tilcd an administrative appeal on the ORS dccision limiting hic's services under the HSP to $4.593 per month, and an administrative hearing was held Oil July 25, 2000.
ANSWER: Oefendant admits the allegations contained in ~128.
29. At this hearing, Eric's treating physician, Janina Badowska, M.D. testified that in her medical opinion, Eric requires 24 hour one-on-one skilled nursing care from registered nurses and that the level of care offered by the ORS service cost maximum would leave Eric at great medical risk. She further testified that Eric's needs could not be met by staffing levels at a skilled nursing facility.
ANSWER: Defendant admits that Eric's treating physician testified that Eric needs
substantial one on one nursing care and urged that he be provided the funds to support 24 hours
per day of skilled nursing care. Defendant admits that Dr. Badowska testified that placing Eric in
a nursing home would seriously medically compromise him. Defendant is without sufficient
information to to admit or deny the remaining allegations contained in ~29.
30. On August 18, 2000, Defendant Ann Patla, as Director of IDPA;jssued an administrative decision, affirming the ORS decision limiting funding of Eric's services under the Home Services Program to $4,593 per month, despite a finding of fact in the decision that placing Eric in a nursing facility would place Eric at risk of danger.
ANSWER: Defendant admits that, on August 18, 2000, Defendant issued an lOPA final
administrative decision affirming the ORS determination to limit funding of Eric's HSP services
to $4,593 per month. Defendant admits that the Hearing Officer pres.iding over (he underlying
administrative proceeding made a factual finding that Eric's parents submitted uncontradicted
evidence that Eric would be at risk of danger if he should be placed in a nursing home.
31. Under the Illinois Administrative Procedure Act,S ILCS 10011-70, each agency statement of general applicability that implements. applies, interprets. or prescribes law or policy is a "rule" within the meaning of the Act.
ANSWER: Defendant avers that this statute speaks for itself and that Plaintiff has
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omitted material portions thereof.

32. Defendant's lInwrillCIl policy limiting Medicaid coverage for private duty Ilurslng services for adults to thc ser"ices provided under the HSr waiver program is a rule (II' gCllcral applicability within the meaning of 5 ILCS 100/1-70.

ANSWER: Defendant denies each and every allegation contained in '1)2

33. Under 5 ILCS 100/5-40. state agencies must adopt rules pursuant to the 1I(lllCe and comment rulemaking procedure specified in the provision.

ANSWER: Defendant avers that this statute speaks for itself and that Plaintiff has

omitted material portions of this particular statutory provision and other provisions of the

.Administrative Procedure Act.

34. Because Defendant has not followed the notice and comment rule-making procedure set out in SILCS 100/5-40 for the unwrittem policy limiting Medicaid coverage for private duty nursing services for adults to the services provided under the HSP waiver program. the policy is invalid under the Illinois Administrative Procedure Act.

ANSWER: Defendant denies each and every allegation contained in ~34. furthermore.

Defendant avers that, effective September 1,2001, IDPA amended 89111inois Administrative

Code §§ 140.435 and 140.436 lO strike all text relating to Medicaid coverage of private duty

nursing services, thereby clarifying that payment is made for this service only for children under

21 years of age who are covered under a program waiver or are identified as needing this service

through a screening under the Early and Periodic Screening, Diagnosis and Treatment

C"EPSDT1 Program.

35. Eric will suffer irreparable injury if Defendant is not enjoined from applying this invalid rule to deny Eric the full amount and scope of private duty nursing services described in the Illinois Medicaid plan.

ANSWER: Defendant denies each and every allegation contained in ~35.

36. Eric has no adequate remedy at law.

ANSWER: Defendant denies each and every allegation contained in ~3(1.~_~~1111"_ _' "

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37. Ene IS indigent and unable to post bond.

ANSWER Defendant is without sufficient knowledge to adlllllllr deny the allegations

contained ill '1.1 7.

COUNT II: VIOLATION Or- THE MEDICAID I'LAN

1- JO. Plainti ff re-alleges paragraphs one through thirty of Count I as paragraphs one through thirty of Count II.

ANSWER: Defendant adopts her answers to ~~ 1-30 of COUIlI I as her answers to ~~ 1-30

of Count 1I of Plaintiffs Supplemental Complaint for Injunctive Relief.

31. The Illinois Public aid Code directs lDPA to establish standards and rules to determine the amount and nature of medical services to be included in the Medicaid program, including private duty nursing services. 305 ILCS 5/5-4, 5-5.

ANSWER: Defendant avers that 305 ILCS 515-4 and 5-5 speak for themselves.

32. The Illinois Medicaid plan sets out such standards and rules .

ANSWER: Defendant denies each and every allegation contained in ~32.

33. Defendant has violated the lIIinois Medicaid plan by failing to provide Eric the full amount, duration and scope of private duty nursing services set out in the Illinois Medicaid plan.

ANSWER: Defendant denies each and every allegation contained in ~33.

34. Eric will suffer irreparable injury if Defendant is not enjoined from failing to afford Eric the full amount and scope of private duty nursing services described in the [[Iinois Medicaid plan.

ANSWER: Defendant denies each and every allegation contained in ~34.

35. Eric has no adequate renedy at law.

ANSWER: Defendant denies each and every allegation contained in 135.

36. Eric is indigent and unable to post bond.

ANSWER: Defendant is without sufficient information to admit or deny the allegations

contained in ~36.
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COllNT III: VIOLATION OF 89 ILL.AOM CODE ~ 140435

1-30. Plaintiff re-alleges paragraphs one through thirty of Count I as paragraphs one through thirty of Count III.
ANSWER: Defendant adopts her answers to ~~1-30 oreountl as her answers to ~~1-30

of Count III of Plaintiffs Supplemental Complaint for Injunctive Relief".

31. The Illinois Public Aid Code directs IOPA to establish standards and rules to determine the amount and nature of medical services to be included in the Medicaid program, including private duty nursing services. 305 ICCS 5/5-4, 5-5.

ANSWER: Defendant avers that 305 ILCS 5/5-4 and 5-5 speak for themselves.

32. The Department's rule at 89 III. Adm. Code § 140.435(B)(2) provides that Medicaid payment "shall be made" for private duty nursing services.

ANSWER: Defendant denies that 89 III.Adm. Code § l40.435(b)(2) currently provides

that payment "shall be made" for private duty nursing services. Defendant avers that, effective

September 1,200 I, fDPA amended 89 Illinois Administrative Code § 140.435 to strike all text

relating to payment for private duty nursing services.

33. Defendant's refusal to cover medically necessary private duty nursing services for
Eric violates 89 1I1.Adm. Code § 140.435(b)(2).
ANSWER: Defendant denies each and every allegation contained in ~33.

34. Eric has no adequate renedy at law.

ANSWER: Defendant denies each and every allegation contained in ~34.

35. Eric is indigent and unable to post bond.

ANSWER: Defendant is without sufficient information to admit or deny the allegations

contained in ~3 5

COUNT IV: BREACH OF CONTRACT

1-30. Plaintiff re-alleges paragraphs one through thirty of Count I as paragraphs one

through th in y 0 f Count IV.

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ANSWER: Defendant adopts her answers to ~'JI-30 of Count I as her answers to ,1,jl ..l0

of Count IV of Plaintiffs Supplemental Complaint for Injunctive Relief.

31. The Illinois medicaid plan is a contract between the Illinois Department of Public Aid and the federal governmellt.

ANSWER: Defendant denies each and every allegation contained in ~3 \.

32. Medicaid recipients, including Eric, are the clearly intended and direct beneficiaries of this contract.

ANSWER: Defendant denies each and every allegation contained in ~32.

33. By failing to afford Eric the full amount, duration, and scope of private duty nursing included in the lIIinois Medicaid Plan, defendant is in breach of contract.

ANSWER: Defendant denies each and every allegation contained in ~33.

34. Defendant's decision to restrict Eric's nursing services to the cost maximum of the home Services Program, thereby denying him the benefit of the private duty nursing services described in the [[(inois Medicaid plan, has injured Eric.
ANSWER: Defendant denies each and every allegation contained in ~34.

35. Eric has no adequate remedy at law and requires specific perfonnance of the terms of

the Medicaid plan in order to obtain relief.

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ANSWER: Defendant denies each andevery allegation contained in ~35.

COUNT V: VIOLATION OF THE ILLINOIS ADMINISTRATIVE PROCEDURE ACT

1-24. Plainti ff realleges paragraphs one and two. four. six through eighteen, twenty-one and twenty-two, and twenty-five through thirty of Count I as paragraphs one through twenty-four of Count V.

ANSWER: Defendant adopts her answers to ~~I, 2. 4, 6-18.21,22 and 25-30 of Count I

as her answers to ~~1-24 of Count V.

25. In March 200 I lackie Gamer replaced defendant Ann Patla as Director of the Illinois Department of PublicAid and endorses a\l of the actions taken by Ms. Patla relevant to this lawsuit.

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26. Eric Radaszcwski was born on August S. 1979

ANSWER: Defendant admits the allegations contained in ~26.

27. [n August. 2000. when Eric turned 21 years old. Illinois' Medicaid plan. as submilted to I-IHS. included coverage for privale dUly nursing, with the sole conditions that private duty nursing services be recommended hy a physician, lhat prior approval from the State agency be sought, and that the nursing care not be provided by a relative. 1\ copy of that proviSion as it existed at that time is attached to this Complaint as Exhibit A.

ANSWER: Defendant admits that Illinois' Medicaid Plan included coverage for private

duty nursing in August, 2000, but denies that the conditions stated by Plaintiff in ~2 7 were the

sole conditions on such coverage. Defendant specifically denies that the Medicaid Plan ever

provided coverage of private duty nursing for individuals 2 J years of age or older. Defendant

a[so denies that a copy of the Plan provision regarding private duty nursing is attached as an

exhibit to Plaintiffs Supplemental Complaint for Injunctive Relief.

28. Despite the language of the lIinois State plan covering private duty nursing with the sole limitations described in paragraph 28 (sic], above, it was the unwritten policy of the State to impose additional restrictions that eliminate private duty nursing for persons aged 21 or older and instead provide such services only through the HSP, its limited and com unity based Medicaid waiver program.

ANSWER: Defendant admits that it was State policy to provide in-home nursing for

persons aged 21 or older only through the HSP program, but deny that this policy was unwriten,

that this policy violated [I\inois' Medicaid Plan and that the Medicaid Plan contained only the

coverage limitations described by Plaintiff in ~27.

29. On September 1,2000, plaintiff brought an action in the United States District Court for the Northern District of Illinois against Defendant Patla, seeking to enjoin defendant's reduction of Eric's nursing services. Plaintiff claimed that defendant's actions, deviating from its Medicaid plan, violated the federal Medicaid statute, its implementing regulations and the requirements of due process.

ANSWER: Defendant denies that Director Patla's actions deviated from Illinois'

Medicaid Plan or violated any legal requirements. Defendant admits the remaining allegations

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contained in ~29.

30. The District Court denied plaintiffs motion for a preliminary injunction. and plaintiff appealed that interloclltory order.

ANSWER: Defendant admits the allegations contained in ~)O.

31. On December 1.2000. plaintiff filed the present case. bringing claims founded on state law that could not be included in the federal law suit. Plaintiffs claims. sel out as counts 1IV, included that defendant's unwritten policy to deny Eric private duty nursing violated the notice and comment requirements of the Illinois Administrative Procedure Act,S ILCS 10011 et seq., the requirements set out in its Medicaid plan, and 89 I\I.Adm.Code 140.4 3S(b), and deprived Eric of his rights as a third party beneficiary of the contract between the department and the federal government.

ANSWER: Defendant denies that Eric was denied private duty nursing pursuant to an

unwritten policy, that that denial violated any legal requirements or that Eric was deprived of any

contractual rights. Defendant admits the remaining allegations contained in ~31.

32. On December 19,200 I, this Court entered an Order denying Defendant's Motion to Dismiss and issued a Temporary Restraining Order enjoining Defendant from reducing Eric's nursing services pending further order.

ANSWER: Defendant admits the allegations contained in ~32.

33. On January 3, 2000,without prior notice to either this Court or to the Seventh Circuit Court of Appeals, the plaintiff or the public, the department submitted to HHS an amendment to the Illinois Medicaid plan, deleting coverage for private duty nursing services for adults, On February 2, 2001, HHS approved the amendment.

ANSWER: Defendant denies that Illinois' Medicaid Plan ever covered private duty

nursing services for adults. Defendant avers that the Plan amendment entirely removed private

duty nursing from the Plan by deleting all provisions and language regarding this service.

Defendant further avers that prior notice was not required in order to obtain HHS approval of this

amendment. Defendant admits the remaining allegations contained in ~33.

34. On March 16. 2001.IDPA published in the lIinois Register a proposed rule to amend 89 IILAdm.Code § 140.435 and § 140.436 to delete Medicaid coverage for private duty nursing servIces. The "Complete Description of the Subjects and Issues Involved'" section of the notice

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of rulemaking stated that the changes "arc being made as clarifications.... "

ANSWER: Defendant admits the allegations contained in ~34. but avers that Plaintiffs

recitation of the content of the "Complete [)escription of of the Subjects and Issues Involved"

section of the notice of rulemaking is incomplete and that material portions have been omitted.

35. On May 23. 200 1, pursuant to public request, the Department conducted a hearing (111 the proposed rules.

ANSWER: Defendant admits the allegations contained in ~35.

36. On July 23, 200 1, the Department submitted to the Joint Committee on Administrative Rules ("JeAR") its Second Notice of Proposed Rulemaking for the proposed amendment.

ANSWER: Defendant admits the allegations contained in ~36.

37. [n the section of the Second Notice describing the public comments objecting to the deletion of Medicaid coverage for private duty nursing services for adults, the Department claimed that "the comments received were not related to the rules, or their intended purpose or potential effect" and that the "proposed amendments do not change the Department's policy on coverage for home health services for adults." Exhibit B, Second Notice of Proposed Rulemaking, page 8.

ANSWER: Defendant denies that IDPA's rules ever provided Medicaid coverage of

private duty nursing for adults. Defendant avers that [DPA's rules were amended to clarify that

payment was provided for private duty nursing only for children under 21 years of age who are

covered under a Medicaid waiver or are identified as needing the service through an EPSDT

screening. Defendant admits that, in response to a comment, IDPA stated in the Second Notice

that "The proposed amendments do not change the Department's policy on coverage for home

health services for adults," but avers that Plaintiff has omitted material portions oflDPA's

response. Defendant admits that, in its Second Notice, IDPA generally stated that some of the

comments received "are not related to these rules or the intended purpose and potential effect of

the proposed amendments," but denies thaI such a response was made to any particular commenl

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ohjccting to a supposed deletion of medicaid coverage of prtvate duty nursing for adults .

.IS. On August 7. 200 I. leAR reviewed the rules withollt objection.
ANSWER: Defendant admits the allegations contained in '138.

39. On September I. 200 I. Ihe Department filed a certified copy of the amended rules with the office of the Secretary of State.
ANSWER: Defendant admits the allegations contained in '139.

40. Under the Illinois Administrative Procedure Act,S ILCS 100/1-70 each agency statement of general applicability that implements, applies. interprets. or prescribes law or policy is a rule within the meaning of the Act.

ANSWER: Defendant avers that this statute speaks for itselfand that Plaintiff has omitted

portions thereof.

41. Under 5 ILCS 100/5-40, state agencies must adopt rules pursuant to the notice and comment rule making procedure specified in the provision. Among these requirements, an agency must include in the first notice of rule making a "complete description of the subjects and issues invol ved." 5 ILCS I00/5-40(b)(3). During the notice period, the agency must accept from interested persons data, views, arguments or comments and it must "consider all submissions received." 5 ILCS 100/5-40(b).

ANSWER: Defendant avers that this statute speaks for itself and that·Plaintiffhas

omitted portions thereof.

42. In promulgating the amendments to 89 III.Adm.Code § 140.435 and § 140.436,
defendant has not followed the letter or the spirit of the requirements set out in 5 ILCS 100/540(b). The Department refused to consider the comments of the public on the decision to delete Medicaid coverage for private duty nursing services, having deemed the comments not pertinent to the purpose of the rule making. The Department's Notice of Proposed Rule making did not include a complete description of the subjects and issues involved, failing to disclose that it was implementing a policy to delete Medicaid coverage for private duty nursing services for adults or the reasons for not covering those services.

ANSWER: Defendant denies each and every allegation contained in ~42.

43. Eric will suffer irreparable injury if Defendant is not enjoined from applying its invalid rules to deny Eric the full amount and scope of private duty nursing services he has been receiving under the former Illinois Medicaid plan.

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ANSWER: ()c(cndant denies each and every allegation contained in ~43 .

44. Eric has 110 adequate remedy at law.
ANSWER: Oefendant denies each and every allegation contained in '144.

45. Eric is indigent and unable to post bond.

ANSWER: Defendant is without sufficient knowledge to admit or deny the allegatiOIlS

contained in ~45.

COUNT VI: VIOLATION OF THE AMERICANS WITH DISABILITIES ACT: 42 USC §12132 and 28CFR §35.130

1-39. Plaintiff re-alleges paragraphs one through thirty-nine of Count V as paragraphs one through thirty-nine of Count VI.

ANSWER: Defendant adopts her answers to 111-39 of Count V as her answers to "1-39

of Count VL

40. Under the Department's policy, Eric may receive Medicaid payment for necessary long term care services in institutions, meaning skilled nursing facilities and hospitals, but not at home.

ANSWER: Defendant admits that Eric may receive Medicaid payment for necessary long

term care services in skilled nursing facilities and hospitals, but denies that Eric may not receive

payment for long term care services at home. Defendant avers that lOPA has determined that

Eric is eligible to receive $4,593 per month under its Medicaid Home Services Waiver Program.

41. In-home nursing care is the most integrated setting for services for Eric, and is at least as cost-effective as treatment he would receive in an institution.

ANSWER: Defendant denies each and every allegation contained in 141.

42. Under Title II of the Americans with Disabilities Act, 42 USC §12132 and its implementing regulations at 28 CFR 135.130, public entities must provide services to persons with disabilities in the most integrated setting appropriate to the needs of qualified individuals with disabilities .

ANSWER: Derendant avers that the Americans with DisabilitiesAct rADA") alld its

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implcnting regulations speak for themselves and that Plaintiff has omillcu rckvant portions
thereof.
43. Eric is ""Iualified individual with a disability within tlte meanillg ufTitle II of the ADA.
ANSWER: Defendant denies each and every allegation containcd in "43.
44. The Illinois Department of Public Aid of which defendant Patla is Director is a "public entity" within the meaning of Title II of the ADA.
ANSWER: Defendant denies that Ann Patla is currently Director of the Illinois
Department of Public Aid. Defendant admits the remaing allegations contained in ~44.
45. The Department's failure to provide Eric Medicaid services in his home, the most integrated setting for receipt of those services, violates the community integration requirements of Title II of the Americans with Disabilities Act, 42 USC § 12132 and its implementing regulation 28 CFR §35.130.
ANSWER: Defendant denies each and every allegation contained in ~4S.
46. Eric will suffer irreparable injury if Defendant is not enjoined from reducing his Medicaid covered nursing services at home forcing him into an institution where his health will be in imminent danger and he will be segregated from his family and the larger community.
ANSWER: Defendant denies each and every allegation contained in ~46.
47. Eric has no adequate remedy at law.
ANSWER: Defendant denies each and every allegation contained in ~47.
48. Eric is indigent and unable to post bond.
ANSWER: Defendant is without sufficient knowledge to admit or deny the allegations
contained in ~48.
COUNT VII: VIOLATION OF SECTION 504 OF REHABILITATION ACT OF 1973: 29 USC §794 and 28 CFR 41.51 Cd)
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ANSWER: Defendant adopts her answers to ~~ 1-41 of Count V as her answers (0 'I~ 1-41
of Co unI VI.
42. Section 504 of the Rehabilitation Act of 1973 ("Section 504") prohibits discriminalion against people with disabilities on the basis of their disabilities in programs and services lhal recei ve federal financial assistance. 29 USC ~ 794.
ANSWER: Defendant avers lhat the Rehabilitation Act speaks for itself and lhat Plainti ff
has omitted relevant portions thereof.
43. Section 504 requires that services must be provided in the most integrated setting appropriate to the needs of individuals with disabilities. 28 CFR §41.51 (d).
ANSWER: Defendant avers that the Rehabilitation Act and its implenting regulations
speak for themselves and that Plaintiff has omitted relevant portions thereof.
44. The Department's failure to provide Medicaid services for Eric in his home. the most integrated setting for receipt of those services, even though it will provide Medicaid services in institutions for Eric, violates Section 504.
ANSWER: Defendant denies each and every allegation contained in ~44.
45. Eric will suffer irreparable injury if Defendant is not enjoined from reducing the Medicaid covered nursing services he currently receives at home, forcing him-into an institution where his health will be in imminent danger, and he will be segregated from his family and the larger community.
ANSWER: Defendant denies each and every allegation contained in ~45.
46. Eric has no adequate remedy at law.
ANSWER: Defendant denies each and every allegation contained in 146.
47. Eric is indigent and unable to post bond.
ANSWER: Defendant is without sufficient knowledge to admit or deny the allegations contained in ~47.

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James C. O'Connell Oavid Adler Assistant Attorneys General
(Of Counsel) 160 North laSalle Street Suite N-lOOO Chicago, Illinois. 60601 (312) 793-2380 Attorney #400028
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Respectfully submitted. James E. Ryan. Allorney (jeneral of rIIinois By:
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 </s> Case: 1:01-cv-09551 Document #: 1 Filed: 12/14/01 Page 1 of 7 PageID #:1
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

•.. • r t . ,~ '1 -- ,) ~ .. " " , i '

DONNA RADASZEWSKI, Guardian, on behalf )

of Eric Radaszewski,

)

)

Plaintiff,

)

)

vs.

)

)

JACKIE GARNER, Director of Illinois

)

Department of Public Aid,

)

)

Defendant.

)

Civil Action No.

NOTICE OF REMOVAL

To the Judges ofthe United States District Court for the Northern District of Illinois:

The petition of Defendant JACKIE GARNER, Director of the Illinois Department of

Public Aid (nIDPAn), respectfully shows:

I. On December I, 2000, an action was commenced against Petitioner in the Circuit

Court of the Eighteenth Judicial Circuit, DuPage County. Illinois, entitled Donna Radaszewski,

Guardian, on behalf of Eric Radaszewski, Plaintiff, against Ann Patla (predecessor in office to

Petitioner), Director of IlJinois Department of Public Aid, Defendant, Docket No. 00 CH 1475.

Copies of the Summons and Complaint for Injunctive Relief served upon Petitioner are annexed

hereto as Exhibit A.

2. The case stated by the Complaint for Injnnctive Relief initially served upon Petitioner

was not removable to this Court in that all the claims alleged therein were based on state law.

Plaintiff was challenging the reduction of the amonnt of in-home private duty nursing provided

by IDPA under Illinois' Medicaid program to her son after he reached age 21. Plaintiffs four-

count Complaint charged that (I) IDPA's limitation of private duty nursing services provided to

Case: 1:01-cv-09551 Document #: 1 Filed: 12/14/01 Page 2 of 7 PageID #:2
"
adult Medicaid recipients constituted an invalid rule not adopted in accordance with notice and comment rulemaking procedures specified in Illinois' Administrative Procedure Act, 5 ILCS 100/1-1 et seq. (Count I); (2) IDPA violated Illinois' Medicaid Plan by failing to provide Eric
with the full amount of private duty nursing described in the Plan (Count II); (3) IDPA' s refusal
to cover all the private duty nursing sought for Eric violated 89 Illinois Administrative Code §140.435(b)(2) (Count III); and (4) IDPA committed a breach of contract by failing to provide the full amount of private duty nursing included in !linois' Medicaid Plan to Eric (Count IV).
3. On October 15, 2001, Plaintiff served on Petitioner a Motion for Leave to File Supplemental Complaint and a Supplemental Complaint for Injunctive Relief, copies of which are annexed hereto as Exhibits C and D. Although she realleged the four counts previously brought in her initial Complaint and brought a new count alleging that IDPA had violated the Illinois Administrative Procedure Act by amending 89 Illinois Administrative Code §§140.435 and 140.436 to delete all text relating to payment for private duty nursing (Count V), Plaintiff added two new counts allcging violations of federal law. Specifically, Plaintiff charged that (I) IDPA's failure to provide Eric the amount ofin-home nursing she sought violated Title II of the Americans with Disabilities Act, 42 U.S.C. §12132, and one of its implementing regulations, 28 C.F.R. §35.130 (Count VI), and (2) IDPA's failure to provide the sought-for amount ofin-home nursing violated Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794, and one of its implementing regulations, 28 C.F.R. §41.51(d) (Count VII). On November 15,2001, the Circuit Court granted Plaintiff leave to file her Supplemental Complaint instanter. See Order annexed hereto as Exhibit E. Thus it first became ascertainable on November 15, when the Circuit Court granted Plaintiffleave to file her federal claims instanter, that this action had become removable to this Court.
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Case: 1:01-cv-09551 Document #: 1 Filed: 12/14/01 Page 3 of 7 PageID #:3
4. By reason ofthe said amendment of Plaintiffs Complaint for Injunctive Relief the above described action is now a civil action of which this Court has original jurisdiction under the provisions of28 U.S.C. §1331, and is one which may be removed to this Court by Petitioner, Defendant therein, pursuant to the provisions of28 U.S.C. §§1441 and 1446(b). This action alleges controversies arising out of United States statutes and regulations, i.e., 29 U.S.C. §794, 42 U.S.C. §12132, and 28 C.F.R. §§35.130 and 41.51(d), and matters alleged by Plaintiff are governed by these provisions of federal law. Furthermore, Plaintiff asserts separate and independent claims, rights and causes of action arising under these laws of the United States. If sued upon alone, these claims, rights and causes of action would be ones of which this Court has original jurisdiction under 28 U.S.C. §1331, and which could be removed to this Court by Petitioner. Under 28 U.S.C. §1441(c), this entire case is one which may be removed to this Court.
5. For the foregoing reasons, Petitioner desires and is entitled to have this cause removed from the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois to the United States District Court for the Northern District of Illinois, Eastern Division, such being the district where this suit is pending, and conditioned that Petitioner will pay all costs and disbursements incurred by reason of these removal proceedings should it be determined that this case was not removable or was improperly removed.
6. Pursuant to the provisions of28 U.S.C. §1446, Petitioner attaches herewith and incorporates herein by reference true copies of the following documents in this action:
(a) Summons and Complaint in Radaszewki v. Patla, No. 00 CH 1475, filed in Circuit Court of Eighteenth Judicial Circuit, County ofDu Page, State of Illinois, on December 1, 2000, marked as Exhibit A.
-3-

Case: 1:01-cv-09551 Document #: 1 Filed: 12/14/01 Page 4 of 7 PageID #:4

(b) Order, entered by Circuit Court on December 19, 2000, (I) denying Defendant's Motion to Dismiss, (2) granting Plaintiffs Motion for Temporary Restraining Order and (3) ordering Defendant to maintain level (jf private duty nursing Eric Radaszewski received before he turned 21, marked as Exhibit B.

(c) Plaintiffs Motion for Leave to File Supplemental Complaint and to Extend Temporary Restraining Order, served on Defendant on October 15,2001, marked as Exhibit C.

(d) Plaintiffs Supplemental Complaint for Irljunctive Relief, served on Defendant on October 15, 2001, marked as Exhibit D.

(e) Order, entered by Circuit Court on November 15,2001, (I) denying Defendant's Motion to Vacate Temporary Restraining Order and Dismiss Case as Moot, (2) granting Plaintiffs Motion to Extend Temporary Restraining Order and (3) granting Plaintiff leave to file Supplemental Complaint instanter, marked as Exhibit E.

7. Written notice of the filing of this Petition will be given to adverse parties as required

by law.

8. A true copy of this Petition will be filed with the Clerk of the Circuit Court of the

Eighteenth Judicial Circuit, DuPage County, Illinois as provided by law.

WHEREFORE, Petitioncr prays that the above action now pending against her in the

Circuit Court of he Eighteenth Judicial Circuit, DuPage County, State of Illinois, be removed

therefrom to this Court.

Respectfully submitted,

James C. O'Conell David Adler Christopher S. Gange Assistant Attorneys General
(Of Counsel) 160 N. LaSalle St" Ste. N-IOOO Chicago, Illinois 6060 I (312) 793-2380 Attorneys for Petitioner-Defendant Date: December 14,2001

James E. Ryan, Attorney General of Illinois
By:

-4-

Case: 1:01-cv-09551 Document #: 1 Filed: 12/14/01 Page 5 of 7 PageID #:5
SEE CASE FILE FOR EXHIBITS

Case: 1:01-cv-09551 Document #: 1 Filed: 12/14/01 Page 6 of 7 PageID #:6

\rNITED STATES DISTRICT COURY NORTHERN DISTRICT OF ILLINOISf' I:.d)· d),!
Civil Cover Sheet U\ iJi,'C i ':
- :"'ic) ·;-;·il~-I~ COU\\T This automated lS-44 conforms generally to the manual lS-44 approved by the Judicial Conferehb.?oflhe DIii\ed States in September 1974,
The data is required for the llse of the Clerk of Court for the purpose of initiating the civil docket sheet. The information contained herein neither replaces nor supplements the filing and service of pleadings or other papers as required by law. This form is authorized for use only the Northern District of Illinois.

ofIlIJot,,~~ Plaintiff(s): DONNA RADASZEWSKI, Guardian, Defendant(s):JACKIE GARNER, Director

De. "t/£0 on behalf of ERIC RADASZEWSKI

Department of Public Aid

County of Residence: DuPage

Plaintiffs Atty:

Eliot Abarbanel Prairie State Legal Services, Inc. 350 S. Schmale Rd., Ste. ISO, Carol Stream, IL 60188 (630) 690-2130

County of Residence: Defendant's Atty:

James C. O'Connell

C17 ?
<00,

Office of the Illinois Attorney

General

160 N. LaSalle St., Ste.

N-I 000, Chicago, IL 6060 I

(312) 793-2380

II. Basis of Jurisdiction

3. Federal Question (U.S. not a party)

III. Citizenship of Principle Parties (Diversity Cases Only)
Plaintiff:-N/A Defendant:- NIA

Ole 9551

JUDGE JOHN W DA -

MAGI

RRAH

STRATE JUDGE LEVIN

IV. Origin:

2. Removed From State Court

V. Nature of Suit

444 Welfare

VI.Cause of Action:

State court action, removed pursuant to 28 U.S.C. 1441 and 1446(b), raises federal claims under Americans with Disabilities Act, 42 U.S.c. 12132, and Rehabilitation Act, 29 U.S.C. 794.

VII. Reguested in Complaint

Class Action:No

Dollar Demand:Injunctive Relief

Jury Demand:No

VIII. This case IS NOT a refiling of a previously dismissed case.

Signature:

Date:

If any of this infOn1lation is incorrect, please go back to the Civil Cover Sheet Input fonTI using th£ack bullon in your browser and change it. Once concel,

print this fonn, sign and date it and submit it with yOUl' new civil actionNote: You may need to adjust the font size in your browser

display to make the form print properly.

Revised: 06/28/00

Case: 1:01-cv-09551 Document #: 1 Filed: 12/14/01 Page 7 of 7 PageID #:7

In the Matter of

\.....AITED STATES DISTRICT COU.J NORTHERN DISTRICT OF ILLINOIS
Eastern Division

DONNA RADASZEWSKI, Guardian, on behalf of ERIC RADASZEWSKI

v.

JACKIE GARNER, Director of Illinio, Department of Public Aid

APPEARANCES ARE HEREBY FILED BY THE UNDERSIGNED AS ATTORNEY(S) FQtfUDGE JOHN W OARRAJ

Defendant JACKIE GARNER, Director of the Illinios Department of Public Aid

SIGNATURE

NAME
James C. O'Connell
FIRM
Assistant Illinois Attorney General
STREET ADDRESS
160 N. LaSalle Street Suite N-1000
Chi-;;'~gg, Illinois 60601

(3L12)N71J3~2380

IDENTIfICATION NUMBER (SEE ITEM 4 ON REVERSE)
2084740

MEMBER OF TRIAL BAR'I

RJ J YES

[ NO

TRIAL ATTORNEY?

G?J 0 YES

NO

n f'

/'

(C)

MAGI~ ATE JJJDGE LEViN

(B) .4

.....
D Ul,st"RJ: II

SIGNATUA"h ".PI4A!2f1~~ ur..v 1 7 2 01

NAME
David Adler
FIRM
(Same as A)
STREET ADDRESS

CITY1STATE/ZIP

TELEPHONE NUMBER

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)
6189071
MEMBER OF TRIAL BAR?
TRIAL ATTORNEY?
DES/GNA TED AS LOCAL COUNSEL?

yes
YES
rC] YES

I NO ~",,'
NO [~

SIGNATURE

(D)

NAME
Christopher S. Gange
('S~me as A)
STREET ADDRESS
CITY/STATE/ZIP

NAME

FIRM

,

,STREET ADDRESS

. -.." - ; ,.~, • , )I

CITY/STATE/ZIP

TELEPtlONE NUMBER

TELEPHONE NUMBER

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE)
6255970
MEMBER OF TRIAL BAR?

YES 0

TRIAL AHORNEY? DESIGNATED AS LOCAL COUNSEL?

D_ YES

NO L~~I
NO I,v:
NO t,,~~,!

IDENTIFICATION NUMBER (SEE ITEM 4 ON REVERSE) MEMBER OF TRIAL BAR? TRIAL ATTORNEY? DESIGNATED AS LOCAL COUNSEL?

0 YES
YESL1

C NO

 </s> Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 1 of 27

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI, Guardian, on behalf of Eric Radaszewski,
Plaintiff,
v.
BARRY S. MARAM, Director of the Illinois Department of Healthcare and Family Services,1
Defendant.

)

)

)

)

)

No. 01 C 9551

)

)

)

Judge John W. Darrah

)

)

)

)

OPINION AND ORDER

Plaintiff, Donna Radaszewski, filed suit, as guardian and on behalf of her son,

Eric Radaszewski ("Eric"), against Defendant, Barry S. Maram, the Director of the lllinois

Department of HeaJthcare and Family Services ("HFS"), in the Circuit Court of DuPage County,

Illinois. Radaszewski sought, in part, injunctive relief compelling the IDPA to fully fund the cost

ofthe private-duty nursing care that Eric required in order to remain at home. In December 2000,

the state court entered a temporary injunction requiring the lOPA to restore funding to the

Radaszewski family sufficient to pay for sixteen hours a day ofprivate-duty nursing. That injunction

remains in effect today. Subsequently, the suit was removed to federal court based on the addition

of federal claims in Plaintiffs Supplemental Complaint. The federal claims alleged that HFS

IThe original Complaint was filed against the then-director, Jackie Garner, of the Illinois Department of Public Aid ("lOPA"), now known as the Illinois Department of Healthcare and Family Services.

Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 2 of 27
violated Title II of the American with Disabilities Act of 1990, 42 U.S.c. § 12132, ("ADA") and Section 504 of the Rehabilitation Act of 1973, 29 V.S.C. § 794, ("RA"), by refusing to provide medical services that Eric requires to remain in the most community-integrated setting to provide for his medical needs - specifically, his home.
In April 2002, the Court remanded Plaintiffs state-law claims to state court and retained jurisdiction over the remaining two federal claims. In October 2002, the Court dismissed Plaintiffs ADA claim, finding that Plaintiffcould not sue the Director ofHFS in her official capacity in federal court for reliefunder Title II ofthe ADA pursuant to Walker v. Snyder, 213 FJd 344 (7th Cir. 2000), and granted judgment on the pleadings in favor of Maram on Plaintiff's RA claim. That decision was appealed to the Seventh Circuit Court of Appeals. In September 2004, the Seventh Circuit reversed and remanded the case, finding that Bruggeman v. Blagojevich, 324 F.3d 906, 912-13 (7th CiT. 2003), issued after this Court's decision, recognized that Walker v. Snyder had been overruled by the Supreme Court in Board ofTrustees ofUniv. ofAlabama v. Garrett, 531 U.S. 356 (2001). Therefore, the allegations in the Supplemental Complaint permitted an inference that Plaintiff could prevail on her RA claim. Radaszewski v. Maram, 383 F.3d 599 (7th Cir. 2004) (Radaszewskl).
Plaintiffs suit alleges that the lOPA's failure to fully fund, at-home, private-duty nursing for Eric constitutes disability discrimination in violation of the ADA and the RA, in that the state is refusing to provide the medical services that Eric requires to remain in the most communityintegrated setting appropriate for his needs - his parents' home. The state contends that, under the
2

Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 3 of 27
available state/federal programs, Eric may only receive $4,593 per month - the equivalent of five hours a day of private-duty nursing care - no further reasonable accommodations can be made to increase the amount Eric could receive.
The three factors considered in determining whether a state is obligated to provide community-based treatment for disabled persons are: (1) the state's treatment professionals find that community-based treatment is appropriate; (2) the affected individuals do not oppose communitybased treatment; and (3) placement in the community can be reasonably accommodated, taking into account the state's resources and the needs of others with similar disabilities. See Olmstead v. L. C. ex rei. Zimring, 527 U.S. 581, 597-603 (1999) (Olmstead); Radaszewski, 383 F.3d at 608.
On September 10,2007, a bench trial commenced on the ADA and RA claims. During the trial, the parties presented exhibits and testimony of witnesses, including expert witnesses.
The parties have submitted post-trial written arguments and proposed findings of fact and conclusions oflaw. The Court has considered the evidence, including the testimony ofthe witnesses and exhibits, and has further considered the written arguments of counsel for the parties and the authority cited therein. The Court weighed the testimony of each witness and determined whether the testimony was truthful and accurate (in part, in whole, or not at all) and decided what weight, if any, to give to the testimony of each witness. In making this determination, the Court considered, among other things: the ability and opportunity the witness had to see, hear, or know the things about which the witness testified; the witness's memory; any interest, bias or prejudice the witness may have; the witness's intelligence; the manner ofthe witness while testifYing; and the reasonableness
3

Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 4 of 27
ofthe witness's testimony in light of all ofthe evidence in the case. See Fed. Civ. Jury Instr. 7th Cir. §§ 1.13, 1.21 (2005). The Court also considered the testimony of expert witnesses in light of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Federal Rules of Evidence 702 through 705.
Pursuant to Federal Rule of Civil Procedure 52, the Court enters the following written Findings of Fact and Conclusions of Law, which are based upon consideration of all of the admissible evidence and this Court's assessment of the credibility of the trial witnesses. To the extent, if any, that Findings of Fact, as stated, may be considered Conclusions of Law, they shall be deemed Conclusions ofLaw. Similarly, to the extent, ifany, that Conclusions ofLaw, as stated, may be considered Findings of Fact, they shall be deemed Findings of Fact. The Decision section of this Opinion and Order, for purposes of organization and clarity, contains some reference to law and facts. To the extent, if any, that any part of the Decision may be considered Findings of Fact or Conclusions of Law, they shall be so deemed.
FINDINGS OF FACT Eric's Medical Condition and Treatment Requirements Eric, born in August 1979, was diagnosed in 1992 with medulloblastoma, a brain cancer. In 1993, Eric suffered a mid-brain stroke after undergoing surgery, radiation, and chemotherapy to treat the cancer. The cancer, stroke, and subsequent treatments have impaired Eric's physical and mental functions and left him with multiple and complex disabilities.
4

Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 5 of 27
After several extended hospital stays, Eric resided at his parents' home and received twentyfour-hour care from multiple nurses and therapists. In approximately August 1995, Plaintiffs medical insurance terminated; and Plaintiffcontacted HFS regarding receiving nursing services for Eric.
Eric is eligible for, and a participant in, the lllinois Medicaid Program. In Illinois, HFS is
the single state agency responsible for administering the Medicaid Program. Illinois receives federal funds for the Medicaid program.
Eric was approved to receive healthcare services until he reached the age of twenty-one (August 2000). HFS provided funding for sixteen hours a day ofprivate-duty nursing in Eric's home under the federally approved Illinois Medicaid Program for Medically Fragile, Technology Dependent Children ("MFTDC program"). This program was approved through an HFS waiver and provides a variety of home and community-based services and equipment for medically fragile persons under the age of twenty-one who would otherwise be required to be cared for in a skilled
pediatric facility or hospital. See Ill. Admin. Code § 140.645. The MFTDC program's services
include private-duty shift nursing and respite care in the recipient's home. The amount of services that an individual may receive under this program is determined with reference to the cost ofthe care
the individual would require in a skilled pediatric facility or hospital. See III. Admin, Code
§ 140.645(c)(3). When Eric obtained the age oftwenty-one, the HFS reduced its reimbursement to $4,593 per
month - the equivalent oftive hours a day of private-duty nursing. Plaintiff filed an administrative appeal because the reduced funds were insufficient to provide the nursing services Eric required. The appeal was denied.
5

Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 6 of 27

In 2000, an HFS hearing officer made factual findings about Eric's eligibility for the Home

Services Program ("HSP") and the level of care that Eric required. These findings included the

uncontradicted evidence that Eric would be at risk should he be placed in a nursing home because

Eric could not receive the required level of care he needs in a nursing home. Specifically, the

hearing officer concluded:

A. Grievant [Eric1is a 20 year-old-man who was diagnosed with a

medulloblastoma in 1992. He underwent surgery and chemotherapy

for that condition. As a result of that condition and treatment for that

condition, he has many physical disabilities and has lost both brain

and bodily functions. He has been cared for at home for the past 5

years through funding from the Illinois Division of Specialized Care

for Children (DSCC). This care, plus the admirable efforts of his

parents, has allowed Grievant to be cared for in his home. Grievant

wishes to be maintained in his home with his family; this is also his

parents' wishes.

+ + *

H. The uncontradicted evidence submitted by Grievant is that the

Grievant would be at risk of danger if he should be placed in a

nursing home. Grievant's doctor testified that Grievant needs

substantial one-on-one nursing care to survive. He is medicaIJy

fragile, prone to infections, immobilized, catheterized and relies on

oxygen. A registered nurse is required to look for problems before

they become "full blown and he crashes," according to Grievant's

doctor. His immunological responses were severely compromised

due to earlier radiation and chemotherapy, so skilled nursing care is

a "question ofsurvival, not a question of doing well." The physician

strongly urged that Grievant be given the funds to support 24 hours

per day of skilled nursing care. Placing Grievant in a nursing home

facility ofthe type suggested by the State, according to the physician,

would result in Grievant being seriously medically compromised,

which would lead to many hospitalizations.

I. Grievant's physician's opinion was supported by the registered nurse in charge of Grievant's care. He described Grievant's medical needs in detail. Grievant has no sense of thirst, so his hydration must be carefuIJy monitored in order to avoid serious medical complications. Although Grievant has difficulty swallowing, he can be given soft food, but only under careful conditions. His nutrition

6

Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 7 of 27
must be carefully monitored. Grievant cannot protect his airway by turning his head; any aspiration of food, liquid or medicine can become a medical emergency. Chronic sinus infections lead to sepsis, which can be rapid and acute. Grievant also has osteoporosis and is in danger of breaking bones. His risk ofinjury is high because he sometimes forgets he cannot walk. His short-term memory is not good and he is often confused. He also has difficulty with urination and elimination, which if left untreated, can result in medical emergencies. Grievant has to be under constant surveillance.
J. According to the expert witness offered by Grievant, Grievant could not get the level of required nursing care in a nursing home facility, including the facility suggested by the State (Alden Lincoln Park Nursing facility). In her assessment for this hearing, the expert contacted several nursing homes (including Alden) and asked about the level of care provided. According to the witness, none would provide the level of care needled] by Grievant: 24 hour[s] per day by skilled clinical nurses. She based her assessment on the Grievant's medical file, her observation of Grievant, and her 20 years of experience as a skilled nursing professional.
The Court heard testimony from Doctor Michael Peters, who has been Eric's primary care
physician since September 2002. Dr. Peters is a licensed physician, holds several hospital
appointments, is a diplomat ofthe American Board of Family Practice since 1990, and has been a
fellow of the American Academy of Family Practice since 2006. Dr. Peters considers Eric to have
a very complex medical condition ("Eric is probably the most complex medical case r have had to
take care of during my medical career ...."). Eric's current medical conditions include the lack of
any meaningful pituitary gland function, which makes Eric reliant on several hormonal preparations
to maintain normal bodily functions. Eric is completely reliant on outside sources of hormonal
support. Eric receives thyroid treatment, adrenal hormone, and a supplemental form oftestosterone.
7

Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 8 of 27
Eric is reliant on supplemental forms of nutrition given via hyperalimentation to maintain normal salt balances and chloric intake. He has difficulty absorbing and utilizing things properly by mouth so he requires intravenous administration.
Eric has an active seizure disorder that is treated with two different seizure medications. By virtue of Eric's disease state, Eric has a chronic immune suppressive condition that causes him to be very prone to infections, including pneumonia, urinary tract infections, and soft-tissue infections. These infections oftentimes require that Eric receive very strong antibiotic therapy through home intravenous antibiotic therapy. Eric's hormonal therapies have resulted in deformities ofhis bones
and spinal column. Eric has trouble breathing properly and is prone to aspirating things he eats into
his lungs. The spinal deformity is progressive and affects his ability to breathe, especially when he sleeps at night.
Eric is globally developmentally delayed. He communicates on a simple basis, but he cannot communicate how he feels very clearly in most situations. Eric receives between 20 to 25 different medications on a daily basis, and approximately 10 other medications on an as-needed basis for things such as nausea and pain.
In Dr. Peters' opinion, Eric requires private-duty nursing because he requires daily monitoring, vital-sign checks, and proper administration of his medications. This nursing would require a registered-nurse-level nurse who is experienced and knowledgeable and available to actively assess Eric on a daily basis. A nurse with this experience and knowledge would also be able to monitor Eric's condition to watch for interactions and complications from medications and
8

Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 9 of 27
treatments and would be able to identifY possible medical conditions early so treatment could be immediately instituted. Dr. Peters' opined that Eric's survival since the onset of his medical conditions is directly related to receiving private-duty nursing.
Dr. Peters does not believe that Eric could be properly treated in a nursing home because the number ofpatients that a nurse at a nursing home has to supervise and care for during the day would not allow the nurse adequate time to care for Eric. Furthermore. much of the daily care of patients in a nursing home is delegated to assistants. Dr. Peters' "concerns" with Eric's being in a nursing home include the risk that Eric would not appropriately receive treatments, resulting in infections due to Eric's decreased immune system, and the regularity ofinfections occurring in nursing homes, which would result in Eric's likely succumbing to repeated infections and would result in repeated hospitalizations. Dr. Peters testified:
I believe the severe nature of his disabilities, the constellation of problems that he has, quite frankly, I don't think he would get the care he would need. In fact, it would create more problems for him putting him in a nursing home setting. I truly believe he would not do well in that setting. Eric's medical condition at the time of trial was essentially the same as it was in August of2000. Ms. Radaszewski, Eric's mother, testified that Eric requires one-on-one nursing services to be cared for at home. Eric has no short-term or long-term memory so he is not aware of what he is doing much of the lime. Eric has a ventriculoperitoneal shunt, a catheter placed in his brain for drainage to keep pressure in Eric's brain under control. Eric is wheelchair-bound and cannot effectively walk. He uses a platform walker with belts to be moved short distances, such as five steps to get to a chair or toilet. He also needs someone to watch for seizures, hydrocephalus, and shunt malfunctions. He has a skin condition that creates half-dollar-size sores of blood and pus.
9

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Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 10 of 27

These sores appear without warning and must be dressed to keep Eric safe from infection. Eric also has a double-lumen "PIC" line. This intravenous line is used to administer drugs and to feed Eric at night, at which time he receives an eight-hour IV solution oftotal parental nutrition ("TPN"). Eric needs assistance with eating because he aspires and chokes.
The services that Eric receives are from registered nurses because they have the experience and knowledge required for Eric's carc. Eric's typical day starts anywhere from 7:00 a.m. to 11 :00 a.m. when he gets up. A nurse either gives Eric a bath or shower after taking down Eric's TPN line, flushing the IV lines, and administering all of the IV medications for the morning. The nurse also separates Eric's pills that are taken throughout the day.
At the time of trial, Eric was receiving sixteen hours of private-duty nursing per day and 336 hours of respile hours per year pursuant to the injunction entered previously by the state court. Eric's parents provide Eric's care during the remaining eight hours a day. During this time, Eric usually takes a nap; and his parents provide him his medications. The medications are "preprepared" for Eric's parents, and written instructions are provided. His parents also watch for fevers and seizures, take him out to eat, and take him outside of the home on other occasions. In the event of any unusual symptoms, Eric's parents, as instructed, contact medical professionals. Eric has equipment in the home to aid in lifting him, and his father generally assists in lifting Eric. Eric's parents (his mother was 59 years old, and his father was 60 years old at the time of trial) have difficulties in providing care for Eric due to their age and their own medical conditions.
At home, Eric watches videos and likes to put things together. He likes to paint, color and draw. A nearby friend that has cerebral palsy comes to the home and plays with Eric. Eric also enjoys going to the movies, shopping, and going to restaurants.
10

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Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 11 of 27

The state's treatment professionals have found that community-based treatment is appropriate; and the affected individuals, Eric's guardians and Eric, do not oppose community-based tmatmcnt'. Ifinstitutionalized, Eric would require the equivalent ofthe private-duty nursing care that he has received at home. A hospital setting would provide the equivalent care to the cam Eric receives at home with monitoring devices, telemetry, and the increased nursing staffing available in hospitals.
The cost of Eric's care in a hospital would exceed the cost of his care in the community, including both the sixteen hours per day of skilled nursing he receives at home and any ancillary medical costs. For example, in its last cost estimate preceding Eric's twenty-first birthday, the state estimated the institutional cost of Eric's care to be $29,330.40 per month, while the cost of his care plan at home - including sixteen hours of nursing services per day, supplies, equipment, and other therapies - was $20,868. I9 per month. The cost of Eric's care in 2005 (the most recent year with complete data) was $20,499 per month or $676.53 per day. lbe average Medicaid reimbursement for hospital stays longer than 120 days for persons twenty years old or older was $1,428 per day for July I, 2004 through October 28, 2005. Hospital reimbursement rates have not decreased since that time.
Illinois Heallhcare Programs and Services
Frank Kopel is the chiefof the Bureau of Program and Reimbursement Analysis ("BPRA") ofI-IFS. One ofthe units or functions ofthe BPRA is the policy unit that oversees the state Medicaid plan. The state Medicaid plan is a contract between the State of Illinois and the federal government,
2As pointed out by the Seventh Circuit, the first two conditions - the propriety of community-based care for Eric and the consent of Eric and his affected family members - are undisputed. See Radaszewski, 383 F.3d at 608.
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Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 12 of 27
controlling the operation of the Medicaid program by the State of Illinois. The federal government requires each state to designate a single agency to be responsible for the Medicaid program in the state; in Illinois, that agency is HFS. A "waiver" is a provision by which the federal government allows the state to provide services that are not otherwise covered under the state Medicaid plan.
Medical providers in the Medicaid program are individuals or institutions that have agreed to provide services in compliance with the Medicaid state plan, to accept certain reimbursement as payment in full, and to abide by all of the rules and regulations of the state and federal Medicaid programs. The federal government reviews and approves the state Medicaid plan and provides approximately 50 percent of the funding for Medicaid. The amount offunds provided by the federal government is known as the federal financial participation ("FFP").
The state plan lists services and the amount of reimbursement for those services that are covered under the state plan. The state plan also lists eligibility for these services. Per the federal government, certain services must be provided; these are mandatory coverage services. Other services are provided but are optional services.
Early periodic screening, diagnosis and treatment services ("EPSDT") is a mandatory program for individuals under the age oftwenty-one. Under this program, the state must provide any service that is listed in Section 1905(a) of the Social Security Act that is medically necessary to individuals under the age of twenty-one. These mandatory services are provided irregardless of whether they are available to the rest of the population. Private-duty nursing is an example of a service provided for under EPSDT that is not included in the State of Illinois Medicaid plan.
12

Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 13 of 27
Private-duty nursing is one-on-one care provided to a person who has that medical need. Once an individual reaches the age of twenty-one, services otherwise provided under EPSDT are no longer available because that individual is no longer eligible for those services based on that individual's age.
The HSP is a program designed to assist individuals with severe disabilities to remain in their home and receive services instead of residing in a nursing facility. The HSP is authorized by the persons-with-disabilities waiver. The BPRA financially monitors the HSP by reviewing claims to enable securing matching federal funds and by reviewing the cost allocation plan ofHFS to see that the portion oftheir costs that are attributable to Medicaid are reasonable and that they are adequately documented.
The HSP is a very cost-effective program. In 2005, HFS reported that there were 19,827
participants in the HSP waiver and that the cost per participant for care in the community was $19,140 per year, while the estimated cost for care in the institutional setting was $32,816 per participant per year, a savings of $13,676 per participant per year.
For a claim to qualify for matching funds, it must: (1) be a covered service under the state
plan or a waiver, (2) be provided to a Medicaid-enrolled and eligible individual, and (3) be provided by an enrolled provider.
As to hospital coverage under the Medicaid plan, there is no limitation on the number ofdays an individual can stay per year in a hospital. There are no facilities that are owned and operated by the state, specifically for long-term care of persons with disabilities.
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Hospitals are reimbursed on a diagnosis-related grouping ("ORO"). The entire range of diagnoses are grouped into groups or classes of care that have similar resource utilization. When a claim comes in. a diagnosis and related procedures are analyzed with a computer program; and they are classified into one of these groupings. The price is then based upon the classification grouping for the services. In other words, there is an expected duration of stay based on the diagnosis code; and the hospital is reimbursed on that basis. The reimbursement is a "flat" reimbursement, unrelated to the actual length of stay; whether it is one or more days, the reimbursement is based upon the statistical computation. The hospital can get additional payment other than what was otherwise given under the ORO if the individual requires care longer than what would have been expected under the DRO. Long-term hospital stays are reimbursed on a per diem basis.
Barbara Oinder is the bureau chief of the Bureau of Interagency Coordination ("BIC") for HFS. The BIC is the liaison with other agencies that have day-to-day operation responsibilities of home and community-based waivers and other medical programs. This included waivers for HFS services, including a home and community-based waiver for a persons-with-disabilities waiver and a MFTOC's waiver. Both of these programs seek to provide services in the community that are appropriate for the person at no greater cost to the department than it would be if the person was in an institution. If HFS did not comply with the requirements of a waiver, the waiver could be terminated; and the state would lose the federal matching funds for the services provided under that waiver.
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"Comparability" refers to the requirement that if a service is offered under the state plan, it has to be offered in the same way to anybody that has that medical need. Under a person with disabilities waiver, comparability can be designed individually so that certain limits can be imposed on certain services or be designed for certain kinds ofdisability groups or ages or medical conditions.
The federal government requires that all home and community-based waivers have cost neutrality - HFS cannot spend more money than would be spent for that same individual in an institutional setting. HFS measures cost neutrality on an average - across all participants in the program. In other words, HFS compares the projected waiver costs for all people in the waiver with the expected cost ofthe same population in a nursing home. However, the state can choose whether it wants to require every person to show that their cost is less than the cost of the alternate care in the institution or to let some individuals be above that cost and some below the cost, as long as the aggregate is cost-neutral. Under the person with disabilities waiver, the level ofcare comparison and institutional cost limit is that of a nursing facility.
Service cost maximums are cost caps based on the individual's determination-of-need score. The determination-of-need score is calculated based on what kind of impairment the individual has and what kind ofsupport is needed. The determination-of-need scores range from 29 to 100. As the determination-of-need score rises, so does the cost cap.
If an individual is approved for a waiver and chooses the waiver of services over a nursing home, the individual and a case manager develop a service plan. The service plan outlines the kinds of services the individual needs, including the type and frequency of services, as well as who would provide such services. The service plan must be approved by the individual's physician.
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An individual's written plan of care is a service plan that is created with the consumer's choice in mind with the assistance of a case manager and other providers as needed to develop the most comprehensive plan of care to maintain this individual in the community setting. The concept of consumer direction for a person with disabilities waiver allows the individual to hire, train and fire their own staff and allows an individual to put together a service package that best meets his needs and helps him become as independent as possible and have the quality of/ife that he requires.
Skilled nursing services are available to individuals under the person with disabilities waiver. There is no limitation on the number ofhours per day that an individual in the HSP can have in terms of skilled nursing in their home other than a fixed-cost cap that is assigned to that individual. Accordingly, eight or more hours ofskilled nursing in the home could be approved for an individual.
An exceptional care rate is a rate developed in the long-term care system for individuals who have exceptional or extraordinary medical needs. The long-term care system developed as a way to move individuals out of a hospital-based care to nursing homes. Exceptional care rates are utilized in the HSP and function the same as the service cost maximums, providing the upper limit of cost that the individual can seek for services per month.
The state has flexibility to meet the needs of persons who have problems of medical complexity. Effective January 1,2007, the exceptional care rates that previously were applied to reimburse nursing homes to care for persons falling within categories ofexceptional care needs were terminated when the Illinois Medicaid Program converted its nursing home reimbursement rates to a new reimbursement scheme. However, HFS continues to apply exceptional care rates to some HSP participants, even though such exceptional care rates are not in fact current nursing home rates and are fictional rates. JlJinois law authorizes exceptional care rates up to the amount of a hospital rate.
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Thomas R. Napolski is a vocational rehabilitation counselor for HFS. Previously, Napolski was a case counselor for the HSP. As a case counselor for the HSP, Napolski assessed individuals to identify ifthey were eligible for the HSP and to find appropriate types ofservices that would serve the disabled individual's needs. Napolski was Eric's case counselor. Eric was referred for the HSP on October 4, 1999. Eric was found to be eligible for the HSP in August 2000 and received services for the month of August 2000. Eric's case is now in "interrupt" status so he is not receiving services under the HSP. Eric continues to receive funds pursuant to the injunction that the state court entered in December 2000.
HFS can submit amendments to a waiver to the federal government for approval. All ofthe requests for amendments to waivers HFS filed as to waivers in the last ten years have been approved by the federal government.
Reasonableness o/the Proposed Accommodation Todd Menenberg, the Managing Director at Navigant Consulting ("Navigant"), is an economic analyst and rendered several opinions for the Defendant as an expert. Navigant is a leading firm nationally working with Medicaid, including Medicaid waiver issues. Menenberg opined that if all 26,000 individuals then in the HSP asked for and received an increase in the amount of services that they received up to the service cost maximum, the total annual cost of the program would be $206,000,000. Ifthe 26,000 individuals asked for and received an increase in the amount services equal to that Eric seeks (250 percent), the total annual cost of the program would be $472,000,000. Menenberg's opinion in this regard is based, in part, on the premise that if Eric
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Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 18 of 27
was allowed to receive additional funds (essentially removing his service cost plan), all ofthe 26,000 individuals would also request and be permitted to avoid their service cost plan and receive funds up to the service cost maximum.
Based on a study conducted by Menenberg, at the time of trial there were approximately 9,000 Illinois Medicaid residents under the age ofsixty that resided in nursing facilities. Menenberg also opined that approximately 12 percent of these 9,000 individuals would live at home if they could receive all oftheir nursing care at home. Menenberg estimates that the annual cost to the state, ifthese individuals received such care at home instead of in a nursing facility, would be $32 to $33 million annually.
Menenberg further opined that if the service plans were removed as a restrictive device and if individuals under a waiver or in a nursing home could avail themselves of a waiver and receive as much as they believed they needed, the total estimated annual cost for the first year would be between $238 million to $505 million.
Samuel Flint, Ph.D., an assistant professor ofpublic policy at Indiana University Northwest, testified on behalf of Eric. He opined that Menenberg's conclusions were based on unsupported assumptions and resulted in unreliable conclusions. Dr. Flint pointed out that Meneberg assumed that all participants would seek additional services up to the maximum amount allowed and would receive such additional services without regard to the existing utilization review process that requires a medical need for services. Also, Menenberg's analysis, with respect to the nursing home population, failed to apply proper statistical standards, such as an actuarial analysis. In addition, Dr. Flint noted that Menenberg used non-random jUdgmental sampling in determining the possible
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Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 19 of 27
increased costs based on individuals', presently in nursing homes, moving to community care. Nonrandom judgmental sampling could not be used to reliably extrapolate the possible increased costs for in-home nursing. Furthermore, the assessments of the costs associated with the sample individuals' moving to community care failed to take into consideration other relevant factors, such as participation by family members in community, in-home care of the disabled person.
Dr. Flint also disagreed with Menenberg's conclusion that if Eric received the requested community-based treatment, precedent would dramatically affect the cost to the state for care of current nursing facility residents and for persons with disabilities waivers because the state Medicaid Program has ways to accommodate very ill individuals, such as Eric - for example, exceptional care rates. Dr Flint opined that if Eric received the needed funds, increasing the cap on funds he could receive, only 864 other people could seek an increase in their funding. If these 864 individuals received an increase of 10 percent, the increased cost to the state would be $152,000. If these 864 individuals received a 30 percent increase, the increased cost to the state would be $456,000. In Dr. Flint's opinion, only 143 other individuals would move from a skilled nursing facility to community-based treatment, as compared to Menenberg's estimation of 1,1 00 individuals' moving to community-based treatment and the estimate of Matthew Werner (another defense expert discussed below) of over 5,700 individuals' moving into community-based treatment.
Dr. Flint's opinions were based on sufficient facts and reliable principles and methodology. Dr. Flint further applied the principles and methods reliably to the facts. Dr. Flint's expert testimony was credible and persuasive.
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Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 20 of 27
Menenberg's analysis and testimony was not based upon reliable principles and methodology and was not credible or persuasive. Menenberg's opinions consist ofcalculations without supporting rationale as to his methodology and its application to other purported individuals similar to Eric. His calculations are based, in part, on the unsubstantiated premise that if Eric is permitted to exceed the cost cap imposed for his care plan, then all 26,000 participants in the HSP would also request and be entitled to receive services up to their service cost maximum, or 10 percent, 20 percent or 250 percent oftheir service cost maximums. Menenberg does not attempt to identify any persons participating in the HSP who require the amount and types of services that Eric requires. Rather, Menenberg's methodology consists of taking the number of the HSP recipients and calculating the benefits they are receiving now and the maximum benefits they could receive, whether or not those HSP participants need additional care or services. Menenberg fails to provide an explanation as to his assumption that utilization review would essentially be eliminated and that individuals will automatically avail themselves to services if they are offered at no cost.
With respect to Menenberg's projection that the state will incur $32 to $33 million in additional costs for individuals presently in nursing homes who may want to return to the community if Eric prevails, Menenberg fails to identify persons presently in nursing homes whose needs are not being met at the nursing home level of care and are comparable to Eric (whose needs cannot be met at a nursing home level of care).
Furthermore, Meneberg' s methodology in estimating these costs by sampling 28 of216 cases to arrive at an estimate for the entire census of approximately 9,000 persons with respect to nursing home residents was flawed because Menenberg, as mentioned above, used non-random judgmental sampling and lacked reliability because his methodology was a census, not a sample of the
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Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 21 of 27
population. Menenberg could not identifY who selected the 28 persons in the sampling. The sole person who assessed those individual cases, an HFS nurse, used only the Minimum Data Sets
("MDS") of the 28 individuals and did not take into account other relevant factors, such as the care
available to those persons at home, in making her assessments. Matthew Werner, the former advisor to HFS on healthcare finance and former Chief of
HFS's Bureau of Rate Development and Analysis, also offered "expert" testimony for the defense. He opined that if Eric received twenty-four hours of skilled nursing care in his home the additional cost to the state for persons residing in nursing home facilities and receiving twenty-four hours of skilled nursing and persons participating in the HSP receiving the same reimbursement as Eric could be $2.2. to $3.3 billion annually. However, Werner's methodology was not based on any projections of the number of persons who would leave nursing facilities because ofa decision favorable to Eric nor the actual cost ofservices to the state as a result thereof. Instead, Werner estimated the potential
maximum impact. Werner did not know how many individuals would shift to community services
and did not know how many individuals would qualifY for the same type of services Eric receives. Werner did not use standard actuarial methodology, which would have statistically determined the estimate of expected cost based on expected utilization, not the maximum possible cost.
Importantly, Werner's analysis failed to take into account medical necessity and assumed that a judgment in Eric's favor would essentially obviate medical necessity and the utilization review. Werner could not specifY as to how many persons would qualify to receive Eric's level of services, how many individuals would shift from a nursing home to home care, nor could he testify as to
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Eric's medical condition or needs and how those conditions compared to the needs of persons presently in nursing homes or in the HSP. Werner's analysis and testimony were not based upon reliabl(l principles and methodology and were not credible or persuasive.
CONCLUSIONS OF LAW Title II of the ADA provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.s.C. § 12132. A "qualified individual with a disability" is defined as one who "with or without reasonable modifications to rules, policies, or practices . . . meets the essential eligibility requirements of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2). A "public entity" includes "any State or local government" and "any department, agency, special purpose district or other instrumentality of a State ... or local government." 42 U.S.C. § 1213I(l)(A), (B).
Pursuant to Title II, the Attorney General has promulgated regulations, providing that "A
public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 C.F.R. § 35.130(d). The "most integrated setting appropriate" is defined as "a setting that enables individuals with disabilities to interact withnondisabled persons to the fullest extent possible." 28 C.F.R. pI. 35, App. A, p. 450. Although a public entity must make modifications as "are reasonable" in order to avoid unduly segregating the disabled, the public entity does not need to make such modification if it can show "that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 C.F.R. § 35.130(b)(7).
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The RA, which applies to programs receiving federal funds, includes a similar antidiscrimination provision, 29 U.S.C. § 794(a), and corresponding regulation, requiring that a recipient offederal funding administer its programs and activities "in the most integrated setting appropriate to the needs of qualified handicapped persons," 28 C,F,R, § 4L5I(d). Also consistent with the ADA, the RA's integration mandate provides that a recipient of federal funding need not accommodate a disabled person when the proposed accommodation would impose an "undue hardship" on the recipient. 28 U.S.C. §§ 41.53, 42.511(c); 45 C.F.R. § 84.12(c).
The relevant provisions of the ADA and the RA and their implementing regulations are construed in the same manner. See Radaszewski, 383 F.3d at 607.
"[U]njustified institutional isolation" of a disabled individual receiving medical care from a state institution constitutes an actionable form ofdiscrimination under Title II. Olmstead, 527 U.S. at 597-603. Institutional placement of individuals who can benefit from community-based settings perpetuate "unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life"; and institutional confinement "severely diminishes the everyday life activities of individuals, including family relations, social contacts ... and cultural enrichment." Olmstead, 527 U.S. at 600-01. Thus, a state may violate Title II ifit refuses to provide an existing benefit to a disabled individual that would enable that person to live in a more community-integrated
setting. See Radaszewski, 383 F.3d at 609; Fisher v. Oklahoma Health Care Au/h., 335 FJd 1175,
1182-84 (lOth Cir. 2003); Townsendv. Quasim, 328 F.3d 511, 516-20 (9th Cir. 2003).
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A state is obligated to provide community-based treatment tor disabled persons if; (I) the state's treatment professionals find that community-based treatment is appropriate; (2) the affected individuals do not oppose community-based treatment; and (3) placement in the community can be reasonably accommodated, taking into account the state's resources and the needs of others with similar disabilities. See Olmstead, 527 U.S. at 607; Radaszewski, 383 FJd at 608.
Under the fundamental-alteration defense, the public entity may demonstrate that it should not be required to accommodate the disabled individual by showing that adapting existing institutional-based services to a community-based setting would impose unreasonable burdens or fundamentally alter the nature of its programs and services. See Olmstead, 527 U.S. at 603-06; Radaszewski, 383 F.3d at 611,614.
DECISION Based on the foregoing, Plaintiff has sufficiently stated and proved a claim under the ADA and RA. See Olmstead, 527 U.S. at 597-603; Radaszewski, 383 F.3d at 609. Defendant argues that neither the ADA nor RA provide for an independent claim for integration in the community and that the authorities cited by Plaintiff do not recognize an independent claim for integration. Defendant's arguments are meritless and directly contrary to Olmstead and Radaszewski. See Olmstead, 527 U.S. at 597-603; Radaszewski, 383 F.3d at 608 ("In view ofthe integration mandate, the [Olmstead] Court agreed ... that a State is obliged to provide community-based treatment for individuals with disabilities . . . ."). Defendant also argues that the Seventh Circuit's decision in this case, Radaszewski, 383 F.3d 599, is "of no aid" to the Plaintiff because it does not constitute a decision
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on the merits. However, while the Seventh Circuit's ruling is not "a decision on the merits," it still constitutes controlling case law and must be followed by this Court where applicable. See United States v. Krilich, 178 F.3d 859, 861 (7th Cir. 1999); United States v. Glaser, 14 F.3d 1213, 1216 (7th Cir. 1994).
Eric is a qualified individual with a disability under the ADA and the RA. HFS is a public entity under the ADA and the RA. Eric and his parents do not oppose community-based treatment and specifically seek to allow Eric to remain at home and receive the same level of care he has been receiving for the last several years.
Eric has severe, long-term disabilities. Eric is eligible to receive services through the Illinois Medicaid Program. Eric is at risk of being placed in an institutional setting, and Eric is qualified to receive services through the HSP. Community-based treatment is an existing benefit under the Illinois Medicaid Program and is appropriate for Eric.
Eric's medical condition requires he receive the equivalent of the private-duty nursing care he presently receives at home. If Eric was placed in an institution, he would require the equivalent of the private-duty nursing care he presently receives at home but still would not receive the level of necessary treatment and health care if so placed. Rather, a hospital setting would be necessary to provide Eric with the proper treatment and care that he requires. Providing Eric sixteen hours per day of skilled nursing care in his home and ancillary costs associated with this health care costs less than the cost of Eric's health care ifhe was placed in a hospital.
If Eric was required to be placed in an institution, Illinois would be required to provide Eric the necessary level of health care - constant monitoring and continuous skilled assistance in accomplishing basic bodily functions. The services that Eric requires and presently receives at home
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Case 1:01-cv-09551 Document 172 Filed 03/26/2008 Page 26 of 27

are, in substance, the services that would be required in a hospital. The unrebutted evidence clearly shows that the cost of caring for Eric in the proper institutional setting - a hospital - would be substantially greater than the cost of allowing Eric to remain in the community and receive the same proper treatment and health care, Allowing Eric to remain in the community can be readily accommodated, taking into account Illinois' resources and the needs of others with similar disabilities. l1linois can approve an HSP plan for Eric that exceeds the nursing home rate. If otherwise necessary, Illinois could also modify or alter the waiver from the federal government, which encourages the states to use home and community-based waivers to meet the community integration contemplated by Olmstead. JlJinois could act in cooperation with the federal government to achieve community-based integration which may otherwise be impeded by existing rules or requirements. Thus, there is no need to adapt existing institutional-based services to a communitybased setting that would impose unreasonable burdens or fundamentally alter the nature of1l1inois' services and programs.
Illinois has not demonstrated that providing the requested accommodation to Eric would impose an unreasonable burden on the state or fundamentally alter the nature of its programs and services. The evidence offered by the state, including the flawed "expert" testimony of Menenberg and Werner, has not shown that Eric's hcalthcare needs cannot be reasonably accommodated by community placement considering the state's resources and the needs of others similarly disabled.

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CONCLUSION For the foregoing reasons, judgment is entered in Plaintiffs favor and against Defendant on Plaintiffs ADA and RA claims. The parties are ordered to meet, confer, and submit a proposed order, setting forth the appropriate relief, consistent with the holding of this Opinion and Order, on or before April 18, 2008.

27

 </s> Radaszewski ex rel. Radaszewski v. Maram, Not Reported in F.Supp.2d (2006)

2006 WL 861243 Only the Westlaw citation is currently available.
United States District Court, N.D. Illinois, Eastern Division.
Donna RADASZEWSKI, Guardian on behalf of Eric Radaszewski, Plaintiff, v.
Barry MARAM, Director, Illinois Department of Healthcare and Family Services, Defendant.
No. 01 C 9551. | March 29, 2006.
Attorneys and Law Firms
Eliot W. Abarbanel, Prairie State Legal Services, Carol Stream, IL, Bernard H. Shapiro, Prairie State Legal Service, Inc., Rockford, IL, Sarah Catherine Megan, Prairie State Legal Services, Batavia, IL, for Plaintiff.
Christopher Samuel Gange, John E. Huston, Karen Elaine Konieczny , Illinois Attorney General’s Office, Chicago, IL, for Defendant.
Opinion
MEMORANDUM OPINION AND ORDER
DARRAH, J.
*1 Plaintiff, Donna Radaszewski, filed a suit against former Defendant, Jackie Garner, the predecessor of Defendant, Barry Maram, the Director of the Illinois Department of Public Aid, in the Circuit Court of DuPage County, Illinois. The seven-count action was subsequently removed to this Court. On October 16, 2002, Counts I through V were remanded to the Circuit Court of DuPage County, and this Court retained jurisdiction over Counts VI and VII.
On October 27, 2004, the action was referred to Magistrate Judge Ian H. Levin for a settlement conference; and the parties engaged in settlement negotiations under Magistrate Levin’s supervision. The parties have exchanged numerous offers and counter offers, both in written form and tendered or presented orally and later reduced to written form, accompanied by

a proposed or draft settlement agreement. At the direction of this Court, the parties have submitted memoranda regarding the status of the settlement proceedings. The parties disagree as to whether an enforceable agreement has been reached, particularly as to the method of enforcement.
Specifically, Maram contends that the matter of suitable enforcement mechanisms has already been agreed upon by the parties and has been incorporated in an enforceable oral settlement agreement. It is Maram’s position that the oral agreement may not now be modified without the expressed consent of both parties. Maram argues that because the parties reached an enforceable settlement agreement on September 23, 2005, as to all material terms, including available enforcement mechanisms, this Court is barred from imposing any terms or conditions beyond those already agreed upon by the parties. Maram requests the Court to enforce the settlement and enter a stipulation of dismissal without further negotiations.
Maram contends that the parties have entered into an unalterable and enforceable settlement agreement. Maram submits that both parties represented to Magistrate Levin, immediately prior to his entry of the order on September 23, 2005, that all matters of substance had been negotiated with no material terms remaining unresolved, including issues relating to the choice of enforcement mechanisms and the waiver of sovereign immunity. Further, “[a]ll that remained (as of September 23, 2005) was drafting an agreement for signature incorporating newly accepted substantive provision concerning a cap on the number of hours of payment for private duty in-home nursing.”
Radaszewski disputes this contention, maintaining that, while a settlement was reached as to most substantive terms, there was no agreement as to method(s) of enforcing the agreement or the “breadth of the confidentiality clause” being sought by Maram.
In enforcing a settlement agreement, a federal court must look to applicable state law to construe the terms of the agreement. Lynch, Inc. v. SamataMason Inc., 279 F.3d 487, 490 (7th Cir.2002). The enforcement and construction of settlement agreements is governed by the law of contracts. Lampe v. O’Toole, 292 Ill.App.3d 144, 146, 226 Ill.Dec. 320, 685 N.E.2d 423 (1997); see also Laserage Technology Corp. v. Laserage Laboratories, Inc., 972 F.2d 799, 802 (7th Cir.1992), citing Air Line
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Radaszewski ex rel. Radaszewski v. Maram, Not Reported in F.Supp.2d (2006)

Stewards and Stewardesses Assoc. v. Trans World Airlines, Inc., 713 F.2d 319, 321 (7th Cir.1983). While under Illinois law an oral settlement agreement is generally binding and enforceable where there has been an offer, an acceptance, and a meeting of the minds as to all material terms, an oral settlement agreement will not be binding on the parties, even where the parties are in total and complete agreement as to all essential and material terms, where it was not the intent of the parties from the outset of the negotiations to be bound, except upon the execution of a written agreement. See LaSalle Nat’l Bank v. Int’l Ltd., 129 Ill.App.2d 381, 392-94, 263 N.E.2d 506 (1970) (LaSalle ); see also Trendmaster, Inc. v. Walgreen Co., 1996 WL 422273 at *2 (N.D.Ill. July, 24, 1996) (Trendmaster ) (where the reduction of an agreement to writing and its formal execution is objectively intended by the parties as a condition precedent to its completion, there can be no contract until then, even if the actual terms have been agreed upon).
*2 “In determining whether a party intended that a contract should be reduced to writing, a court can consider ... whether negotiations themselves indicate that a written draft is contemplated as the final conclusion of negotiations.” In re Marriage of Chatlin, 153 Ill.App.3d 810, 813, 106 Ill.Dec. 631, 506 N.E.2d 338 (1987) (Chatlin ). Also of significance in determining whether the parties intended to be bound is the conduct of the parties both before and after agreeing to the material terms. See e.g. Trendmaster, 1996 WL 422273 at *2.
In Trendmaster, the court observed that “objective evidence of the parties’ intent that a separate written document would formalize the terms of the agreement need not be explicitly expressed” by the parties. Trendmaster, 1996 WL 422273 at *2. Rather, where the parties have not explicitly expressed the entry of a consent decree as a condition precedent to their being bound, “the exchange of prior written drafts constitutes a course of dealing implying any final settlement would be reduced to a single integrated writing”; and “correspondence subsequent to the alleged contract formation” can bear on a determination as to whether an enforceable agreement has been reached. See Trendmaster, 1996 WL 422273 at *2.
In the instant case, Radaszewski delivered an initial written proposal to Maram on November 23, 2004. In responding to Radaszewski’s proposal on April 21, 2005, Maram stated, in writing, his expectation “that this lawsuit will be resolved by the entry of a Settlement Agreement.” In response to Maram’s letter of April 21,

2005, Radaszewski, on June 17, 2005, offered “some proposed language for a settlement agreement,” calling for, inter alia, the specific performance of a particular act by Maram “[w]ithin 30 days of the entry of the consent decree embodying the terms of this agreement.” Radaszewski also made reference to this Court’s retention of jurisdiction to enforce “the terms of the consent decree.” In response to Radaszewski’s June 17 communication, Maram provided a “draft settlement agreement” for Radaszewski’s consideration. Included in the draft settlement agreement was a proposed provision specifically requiring the settlement agreement not be entered as part of a court order. On June 24, 2005, Radaszewski responded to provisions contained in Maram’s proposed draft; and thereafter, on July 27, 2005, at a settlement status hearing, Radaszewski delivered to Maram a proposed agreement of her own. On July 15, 2005, Radaszewski, via written correspondence, offered a pledge of performance to be “included in the consent decree”; to which, Maram responded on July 20, 2005. Attached to Maram’s response was his “latest Draft Settlement Agreement.” In response to Maram’s draft settlement agreement, Radaszewski, on September 20, 2005, delivered to Maram a “Revised Proposed Settlement Agreement.” On September 23, 2005, prior to the status hearing with Magistrate Levin, Radaszewski delivered to Maram a draft settlement agreement dated “9/22/05” which was then followed by Maram’s letter of October 4, 2005, to Radaszewski, accompanied by another Draft Settlement Agreement. Following Maram’s October 4th letter, “written to consummate settlement,” Radaszewski sent Maram a reply. In her letter to Maram on October 18, 2005, Radaszewski set forth proposed language changes in the Draft Settlement Agreement. On October 28, 2005, Maram responded to Radaszewski, enclosing with his correspondence “a revised draft Settlement and General Release incorporating the changes to the October 4th draft.” On November 30, 2005, Maram again communicated with Radaszewski in writing, enclosing with his correspondence his most recent draft of the Settlement Agreement.
*3 Assuming arguendo that all of the material terms were agreed upon by the parties on September 23, 2005, as Maram contends, given the conduct of the parties both before and after the September 23, 2005 hearing, it cannot be said that the terms negotiated constituted an agreement by which the parties intended to be bound. Rather, by their conduct during negotiations, the parties clearly indicated their intent to be bound only by a written, signed agreement finalizing the terms agreed upon. See, e.g., LaSalle, 129 Ill.App.2d at 392-94, 263 N.E.2d 506.
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Radaszewski ex rel. Radaszewski v. Maram, Not Reported in F.Supp.2d (2006)

All of the draft settlement agreements exchanged between the parties included signature lines for the parties to sign. Moreover, post-negotiation representations made by the parties point to the same conclusion. Where it is alleged by one party, as is the case here, that at the outset of negotiations, the parties intended not to be bound except by a written, executed agreement and there is no contradictory evidence in the record as to the allegations, either by counter affidavit or argument, the silence of the other party in contesting the assertion may serve as an inferential basis for construing the legitimacy of the claim of contemplation. See, e.g., Knoll v. Swanson, 92 Ill.App.2d 398, 403, 234 N.E.2d 543 (1968) (Knoll ).
In Plaintiff’s Reply Memorandum Concerning Enforcement of the Settlement Agreement, Radaszewski specifically alleges that “[the] parties contemplated that their eventual agreement would be reduced to a written agreement to be executed by the parties and their counsel.” This is a claim that Maram does not dispute, contradict or deny; and there is no contrary evidence or facts alleged elsewhere in the record that indicates it was the parties’ intent to be bound by anything other than a written agreement executed by the parties and their counsel. Based on an examination of the entire series of communications between the parties both before and after September 23, 2005, as set out above, and the representations contained in their briefs, “there are objective indications that both parties expected the final settlement to be formalized in an integrated written document” before they would become bound by its terms. See, e.g., Trendmasters, 1996 WL 422273 at *2.
In Illinois, the party asserting the existence of an agreement must establish its existence by clear and convincing evidence. See, e.g., Chatlin, 153 Ill.App.3d at

813, 106 Ill.Dec. 631, 506 N.E.2d 338; see also Knoll, 92 Ill.App.2d at 403, 234 N.E.2d 543 (holding that the burden of proving the existence of an agreement of settlement is upon the party alleging reliance upon it). Here, Maram has the burden to prove the existence of the agreement; and he has not done so. In this case, even if all the facts alleged in Maram’s Statement of Matters of Agreement are accepted as true, they do not prove that the parties reached an enforceable settlement agreement. They are not dispositive of a final enforceable settlement agreement being reached where the parties “expected their final settlement to be formalized in an integrated written document.”
*4 Based on the foregoing, there is no final enforceable settlement agreement between the parties. There presently is no other issue or question of law raised by either of the parties in their briefs upon which this Court is empowered to render an opinion. As with all federal courts, the exercise of this Court’s power to declare law is limited to the resolution of non-hypothetical issues. See In the Matter of FedPak Systems, Inc., 80 F.3d 207, 212 (7th Cir.1995) (a federal court lacks the constitutional power to render advisory opinions or to decide “abstract, academic, or hypothetical questions”); see also Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“Hypothetical judgments ... come to the same thing as an advisory opinion, disapproved by [the Supreme] Court from the beginning.”).
This matter is set for April 19, 2006, at 9:00 a.m. for scheduling for trial.
	
  

3

 </s> Case: 1:01-cv-09551 Document #: 16 Filed: 09/10/02 Page 1 of 6 PageID #:270
United States District Court, Northern District of Illinois

Naml~ of Assigned Judge £Ir Magistrate Judge
CASE NUMBER

John W. Darrah

Sitting Judge if Othm-

thall Assigned .1 ud~:I~

--------~--

~------------------~

01 C 9551

DATE

9/10/2002

CASE

DONNA RADASZEWSKI 'is. JACKIE GARNER

TITLE

c - - - - · _ MonON:

(In the following box (a) indicate the party filing the motion, e.g., plainti :f, d,!l'elldanl, 3rd party plaintiff, and (b) state briefly the nature orehe motion being presented.]

,-D-O-C-K-E-T-E-N-T-R-Y-:---------.----------------------------------------------------,

(1) o

Filed motion o£[ use listing in "Motion" box above.]

(2)

o

(3) o

Brief in support of motion due _ __ Answer brief to motion due _ _ . Reply to answer briefdue_..___..

(4)

o

Ruling/Hearing on .___ set for

at

(5) o

Status hearing[held/continu"d to] [set for/re-set for] on ._ _ s"t f(,r _ _ _ at _ __

(6)

o

Pretrial conference[held/continued to] [set for/re-set for] on __.._ ,;"t for _____ at _ __

(7)

o

Trial[set for/re-set for] on _.

at _ __

(8) o

[Bench/Jury trial] [Hearing] held/continued to

at

(9)

o

This case is dismissed [with/without] prejudice and without cos[slby'agreementlpursuant to]
o FRCP4(m) 0 Local Rule 41.1 0 FRCP41(a)(I) 0 FRO'>! l(a)(2).

(10) •

[Other docket entry] Plaintiff's motion to defer mling Oil defendant's motion for judgment on the

pleadings is denied. Enter Memorandum Opinion And Order. Defendant's motion for judgment on the

pleadings is granted.

(11) 0

- - - - - [For further detail see order (on reverSe side of/attached to) the ongmd minute ordef.]

-
r--
----;-

No notices required, advised in open cour1. No notices required. Notices mailed by judge's staff. Notified counsel by telephone. Docketing to mail notices.

I
nu ber fnotices
';rp -II ?GOz.
dall docketed

I - - Mail AO 450 fonn.

r--
Copy to judge/magistrate judge.

courlroom

LG

deputy's initials

- -•. ------------

Date/time received in

central Clerk's OffiCI:

\
mailing depuly initials

Document Number

Case: 1:01-cv-09551 Document #: 16 Filed: 09/10/02 Page 2 of 6 PageID #:271

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI, Guardian, on behalf

)

of Eric Radaszewski,

)

)

Plaintiff,

)

)

No. 01 C 9551

v.

)

)

JACKIE GARNER, Director" Illinois Department

)

Judge John W. Darrah

of Public Aid,

)

)

Defendant.

)

MEMORANDUM OPINION ANI) OI~ER

Plaintiff, Donna Radaszewski, filed suit against Defendant., Jackie Garner ("Gamer"), the

Director ofthe Illinois Departm(:nt of Public Aid ("IDPA"), in the Circuit Court of DuPage County,

Illinois. Gamer removed the action to federal court based on tbe addition of federal claims in

Plaintiffs Supplemental Complaint. This Court previously remar.ded Plaintiffs state law claims

and retainedjurisdiction over Plalintiffs American with Disabilities I,ct ("ADA") and Rehabilitation

Act ("RA") claims. Pre:sently before the Court is Defendant's Motion for Judgment on the

Pleadings.

A motion for judgment on the pleadings pursuant to Rule l2(c) is subject to the same

standard as a motion to dismiss Jor failure to state a claim upon which relief can be granted under

Rule 12(b). Fallimento Coop. M.A. v. Fisher Crane Co., 995 F.2d 789.791 (7th Cir. 1993). The

court reviews all facts alleged in the complaint and any inferences reasonably drawn therefrom in

the light most favorable to the plaintiff. See Marshall-Mosby v. Cmporate Receivables, Inc., 205

F.3d 323, 326 (7th Cir. 2000). The court should grant the motion only if it appears beyond a doubt

_ __ _ .. ..,-,." ....,-,_.,.. ........._-_.,-_._........ ,.

Case: 1:01-cv-09551 Document #: 16 Filed: 09/10/02 Page 3 of 6 PageID #:272
that the plaintiff cannot prove any set offacts that would support the allegations in the complaint and the plaintiffs claim for relief Fallimento Coop. MA., 995 F.2d at 791.
Plaintiffs Complaint for Injunctive Relief and Supplemental Complaint support the following history of the case.
Eric Radaszewski ("Eric"), born in August 1973, was diagnosed with brain cancer in 1992. In 1993, Eric suffered a mid-brain stroke after undergoing surge ry and treatment of the cancer. The cancer, stroke, and subsequent treatments have left Eric in a higllly medical fragile state in which he is in need of one-on-one, 24-hour care to survive.
Until Eric reached the age of twenty-one, the IDPA provided funding for sixteen hours a day of private-duty nursing in Eric's home under the federal Medicojd program. At the age of twentyone, the IDPA reduced its reimbursement to the equivalent of five hours a day of private-duty nursing, thus requiring Eric to be placed in a long-term institution. A. The ADA Claim
Plaintiff alleges that, under the IDPA's policy, Eric may receive Medicaid payment for necessary long-term-care servic(:s in institutions but not at home. Because in-home nursing care is the most integrated setting for services for Eric and is, at least as cost-effective as treatment he would receive in an institution, the IDPA's policy violates the ADA.
Defendant first argues that Plaintiffcannot bring suit agal ns t the IDPA Director under Title III ofthe ADA pursuant to the Seventh Circuit's holding in Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000), cert. denied 531 U.S. 1190 (2001) (Walker).
In Walker, the Seventh Circuit held that the prop'~r defendant in a Title II, ADA claim, is a public entity not an individual. Walker, 213 F.3d at 346 (stating that Titles I and II are similar in that
2

Case: 1:01-cv-09551 Document #: 16 Filed: 09/10/02 Page 4 of 6 PageID #:273
they both prohibit imposition of personal liability). The court concluded that the Ex parte Young doctrine, 209 U.S. 123 (I 908), which stands for the proposition! hat the defendant is the state official rather than the state itself, is inapplicable to Title II ca~;es. Walker, 213 F.3d at 347.
In the instant case, Plaintiff argues that Garner is the proper defendant pursuant to the Ex parte Young doctrine and that Walker has been effectively overruled by two recent Supreme Court cases. In Verizon Maryland Inc. v. Public Service Comm 'n of Maryland, _ U.S. _ (2002) (Verizon), the Supreme Court held that the Telecommw1ication,; Act of 1996 did not prohibit a suit seeking injunctive relief against state commissioners in their of'iclal capacities. Verizon, _ U.S. at _ . As Verizon pertains to the Telecommunications Act of 1996, it does not effectively overrule the Seventh Circuit's ruling as to actions under the ADA.
In Board of Trustees of the University ofAlabama v. Garrett, 531 U.S. 356 (2001), the Supreme Court held that Title I of the ADA does not abrogate a State's Eleventh Amendment immunity from suits for money damages. The Court expressly jrrited its decision to Title I of the ADA. See Garrett, 531 U.S. at 360 n.1. In dictum contained in a footnote, the Court stated that "Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the Untied States in actions for money damages, a" well as by private individuals in actions for injunctive relief under Ex parte young...." Garrett, 531 U.S. at 374 n.9. Thus, to the extent that the Garrett rational may affect the basis of the Severth Circuit's opinion in Walker, its continued validity may have been called in question. Moreover, Plaintiff cites other circuit and district court cases that have found that the Ex parte Yaung doctrim: is applicable to Title II of the ADA post Garrett. See e.g., Carten v. Kent State University, 282 F.3d 391 (6th eif. 2002); Gregory v. Administrative Office afthe Courts afthe State afNew Jersey, 168 F. Supp. 2d 319 (D. N.J. 2001).
3

Case: 1:01-cv-09551 Document #: 16 Filed: 09/10/02 Page 5 of 6 PageID #:274
Nevertheless, the Seventh Circuit's holding in Walker is wntrolling in this Court until either the Supreme Court or thl~ Seventh Circuit hold otherwise. See United States v. Krilich, 178 F.3d 859,861 (7thCir.1999); United States v. Glaser, 14F.3d 1213,12 . 6 (7thCir. 1994). Accordingly, Plaintiffs ADA claim must be dismissed pursuant to Walker. See Boudreau v. Ryan, 2001 WL 840583 (N.D. Ill. May 2,200 I) (dismissing plaintiffs Title II ADA claim pursuant to Walker, noting that Garrett calls into question Walker but the court wa~, bound by the Seventh Circuit's holding in Walker); see also, Block v. Rod/ord Public School Dis.!. # 205, 2U01 WL 1195757 (N.D. Ill. Oct. 10,2001); Stewart v. Of/ice ofRehabilitation Serv., 2000 WL 1847574 (N.D. Ill. Dec. 24, 2000) (both dismissing Title II ADA claims pursuant to Walker). B. The RA Claim
Plaintiff also alleges that the IDPA's failure to provide Medicaid services for Eric in his home violates Section 504 of th;~ RA.
The RA provides that "[n]o otherwise qualified handicapped individual ... shall, solely by reason of his handicap, .... be SUbjected to discrimination under any program or activity receiving Federal financial assistance...." 29 U.S.C. § 794(a). The RA is materially identical to and the model for the ADA except that it is limited to programs that receive federal financial assistance. See Rothman v. Emory Univ., 123 F.3d 446, 451 (7th Cir. 1997) (Rothman). Accordingly, the courts apply the same standards for deciding claims based on Title II of the ADA and Section 504 of the RA. SeeRothman, 123 F.3d at451; Crawfordv. Indiana Dept. ofCorr., 115 F.3d481, 483 (7th Cir. 1997).
The RA, as the ADA, does not require that the State cl·eate and fund a program for the disabled that does not already exist. Instead, Section 504 require;, "the evenhanded treatment of
4

Case: 1:01-cv-09551 Document #: 16 Filed: 09/10/02 Page 6 of 6 PageID #:275

qualified handicapped persons" relative to those persons who do not have disabilities. See

Southeastern Comm. Coli. v. Davis, 442 U.S. 397,410 (1979) (Sotilheastern); see also Alexander

v. Choate, 469 U.S. 287, 307 (1985) (Choate); Traynor v. Turnage, 485 U.S. 535, 548 (1988). For

example, in Choate, the Supreme Court held that a fourteen-doy coverage-limit rule -- which was

neutral on its face, was not alleged to rest on discliminatory motive, and did not deny the

handicapped access to or exclude them from the particular covel-age of services Tennessee chose to

provide -- did not violate Section 504 of the RA. Choate, 469 U.S. at 308. The fourteen-day benefit

was provided equally to both handicapped and nonhandicapp ed persons, "and the State is not

required to assure the handicapped 'adequate health care' by providing them with more coverage

than the nonhandicapped." Choate, 469 U.S. at 308.

In the instant case, the IDPA provides in-home nursirg:o individuals under the age of

twenty-one. Neither any type of handicapped individual nor any nonhandicapped individual over

the age of twenty-one is provided in-home nursing services. Tile lack of in-home nursing care is

applied to both handicapped and non-handicapped persons. Fur:hermore, the IDPA is not required

to provide the handicapped more: coverage than the non-handicapped individual to assure "adequate

health care". Accordingly, Plaintiffs RA claim also fails. See Rodriguez, 197 F.3d at 618-19

(rejecting both ADA and RA claims based on state not providing a new benefit); see also Choate,

469 U.S. at 308; Southeastern, 442 U.S. at 410-11.

For the foregoing reasons, Defendant's Motion for Judgment on the Pleadings is granted.

Dated: .1J(}.~~

(\

' ..

~'\ I;:' /

_C. .!. "u-:'1:'".._J../,~,/\'LJJ2

JOl-IN w. J'lARRAH

Umfed States District Judge

5

 </s> Case: 1:01-cv-09551 Document #: 22 Filed: 10/16/02 Page 1 of 12 PageID #:285

United States District Court, Northern District ofllllnois

No"".' A.ulped SIId,1 or Mo&bln" Slidp

lohn W. Darrah

SltllDI Sa"" If Otbor IIwI A.uIptd Jadp

CASE NUMBER

01 C 9551

DATE

1011612002

CASE TITLE
MonON:

DONNA RADASZEWSKI vs.IACKIE GARNER
. . . . (In tho rollowi'lJ boll (I) ,ndlCllItho pari)' ftu., tho _ ......... plaintiIt deConclanl, 3n1 pari)'plaiatitr.and (b) IIaIebriclly tho .......
orabe motioa IICi•• _ted.1

DOCKET ENTRY:

(I)

o

Filed motion of[ usc listina in ''MOtiOll" box above.]

(2) 0 " ·Brief in support oflbotiOil due _ .

(3) 0

AIlswer briefto molion dlle_ _• Reply to IIIliwer briefdlle~_,

(4) 0

Rulins/HearinIOD._ _ sclfor_at _ _.

(5) 0

Status bearing[heldl~Dtinued to] [sci forlre-scI for) 011 _ _ sct for

at _ _'

(6) 0
(7) o
(8) o
(9) o

Pretrial ecnfcrence[heldlcontinlled to][set forlre-set for] 0 1 1 _ set for

at _ _'

TrlaI[sct forlre-scI !oJr] 011_ a t _ .

[BcnchlJ1II)' trial] [Hearing] heldllXlIItinucd to _ _ at _ _.

TobiFaRcCasPe4i(Jmd)ism0isseIf.d.oc[awJiRtbulwlelt4b1o.u1l]

prejudice and without costa[by/agreementlpllrSUlUlt 0 FRCP41(aXI) 0 FRCP41(aX2).

to]

(10) D [Other docket entry] Bnter Memorandum Opinion And Order. Plaintiff's motion to (Cmand is
granted in part and denic:d in part. Plaintiffs state law claims, counts I-V arc remanded to state court. This Court retains jurisdiction over Counts VI and VB.

(11) D [For fUrther dctaiisciC order attached to tho original minute

No nob requlrod, odvi.... 1rI opca ..oat.

No no_ roquirod..•"c-.,
,Notica mailed by JudP'11IIlt Notified COIUIIeI by "Jepbo~;\
• '7
Dockdina ID nWI noli....
Mill A04SO rona.

Copy ...Judao'mo&istnleJudi..

... "

'~'n
:/

LO

.. ".,

'OCT? 1 ""'.."
---

Case: 1:01-cv-09551 Document #: 22 Filed: 10/16/02 Page 2 of 12 PageID #:286
·, 1 •

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ll..LlNOIS .
EASTERN DIVISION

DONNA RADASZEWSKI,Guardian, .on behalf

)

of Eric Radaszewsld,

)

)

Plaintiff,

)

)

No, 01 C 9551 .

v.

)

)

JACKIE GARNER, Dirldor, lIIInois Department

)

Judge John W. Darrah

of Public Ald,

)

)

Defendant.

)

~fEMORANDUM OPINION AND ORDER

Plaintiff, Donna Radaszewski, filed suit against Defendant, Jackie Gamer. the Director of

the llIinois Department of Public Aid ("IDPA',), in the Circuit Court ofOuPage County, Dlinois.

Garner removed the action to federal court based on the addition of federal claims in Plaintiff's

Supplemental Complaint. Presently before the Court is Plaintiff's Motion to Remand.

Plaintiff's Complai[)t for Injunctive Relief, Supplemental Complaint, and Defendant's Notice

ofRemoval support the following history ofthe case.

Eric Radaszewski ('''Eric''), bom in August 1973, was diagnosed with brain cancer in 1992.

In 1993, Eric suffered a mid-brain stroke after undergoing surgery and treatment ofthe cancer. The

cancer, stroke, and subsequent treatments have left Eric in a highly medical fragile state in which he

is in need of one-on-one, 24-hour care to survive.

Until Eric reached the age oftwenty-one, the IDPA provided funding for sixteen hours a day

ofprivate-duty nursing in Eric's home under the federal Medicaid program. At the age oftwenty-

one, the IDPA reduced its reimbursement to the equivalent of five hours a day of private-duty

Case: 1:01-cv-09551 Document #: 22 Filed: 10/16/02 Page 3 of 12 PageID #:287 ,

nursing.

In September 2000, Plaintiff filed suit in federal court, claiming that the IDPA's act of

reducing Eric's private-dutynursing care violated specificprovisions ofthe federal Medicaid statute,

42 U.S.C. § 1396 et seq., and the due process clause of the Fourteenth Amendment to the United

States Constitution. Plaintiffsought a temporary restraining order, which was granted in September

2000.

Ii

In November 2000, the district court denied Plaintiff's motion for a preliminary injunction,

and the Seventh CircuitCourt ofAppeals denied Plaintiffs motion for an injunction pending appeal.

On December I, 2000, Plaintiff filed a Complaint for Injunctive Relief in the Circuit Court

ofDuPage County, llIinois. Plaintiffs four-count complaint alleged that: (1) the IDPA's limitation

ofprivate-duty nursing services provided to adult Medicaid recipients constituted an invalid rule not

adopted in accordance with. notice and comment rulemaking procedures specified in the llIinois

Administrative Procedure Act, (2) the IDPA violated llIinois' Medicaid Plan by failing to provide

Eric with the full amount ofprivate-duty nursing, (3) the IDPA's refusal to cover all of the private-

duty nursing violated part 89 llIinois Administrative Code, and (4) the IDPA breached a contract by

failing to provide the fuJI amount of private-duty nursing.

On December 19, 2000, the circuit court in DuPage County granted Plaintiff's motion for a

temporary restraining order, reestablishing Eric's hours ofprivate-duty nursing to a level ofsixteen

hours a day. This injunction is presently in effect.

On September 7, 2001, Defendant filed a motion to vacate the temporary restraining order

and dismiss the case as moot. In response to Defendant's motion, on October 16. 2001, Plaintiff

filed a Motion to Extend the Temporary Restraining Order, a Memorandum in Support ofMotion

2

Case: 1:01-cv-09551 Document #: 22 Filed: 10/16/02 Page 4 of 12 PageID #:288
to Extend Temporary Restraining Order and in Opposition to Defendant's Motion to Vacate and Dismiss, and a Supplemental Complaint for Injunctive Relief. The Supplemental Complaint repled the same four counts and added three new counts. Plaintiff added an additional state law claim, alleging an additional violation ofthe lllinois Administrative Procedure Act and two federal claims - a count alleging a violation ofthe American with Disabilities Act ("ADA") and a count alleging a violation of the Rehabilitation Act ("RA',).
.On November 8, 2001, Defendant filed a reply in support ofits motion to vacate and dismiss. In the reply, Defendant argued, in part, that the court had not yet granted Plaintiff leave to file its Supplemental Complaint. Defendant did not address the merits of Plaintiff's new federal claims because leave to file the Supplemental Complaint bad not been granted.
On November 14, 2001, Defendant filed an additional memorandum, Defendant's Objection to Plaintiff's Motion for Leave to File Supplemental Complaint and to Extend Temporary Restraining Order. In this memorandum, Defendant argued that if leave to file the Supplemental Complaint was granted, then it objected to extending the injunction and proceeded to argue on the merits of the inapplicability of the federal claims and the application of the Eleventh Amendment as a bar to the ADA claim. The Eleventh Amendment bar was not raised as to the RA claim.
On November 15,2001, the circuit court granted Plaintiff leave to file her Supplemental Complaint and extended the temporary restraining order. On December 10, 200 I, Defendant filed her answer to Plaintiff's Supplemental Complaint. Defendant's answer included the affirmative defense ofthe Eleventh Amendment as to the ADA claim. The Eleventh Amendment bar was not raised as an affirmative deft.'nseto the RA claim. On December 14, 2001, Defendant filed a Notice of Removal of the state case to this Court.
3

Case: 1:01-cv-09551 Document #: 22 Filed: 10/16/02 Page 5 of 12 PageID #:289
Plaintifffirst argues that Defendant filed her Notice ofRemoval after the required thirty-day period. Plaintiffcontends that the thirty-dayperiodbegan to run on October 16, 200 I, when Plaintiff filed her motion to extend the temporary restraining order because the documents clearly set forth her federal claims, puttiJllg Defendant on notice of these claims.
Under 28 U.S.C. § 1446(b),
i Ifthe case: stated by the initial pleading is not removable, a notice of!
removal may be filed within thirty days afterreceipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable .... In a situation in which the original complaint does not disclose a ground for removal but an amended complaint does so, the thirty-day period does not begin to run until the state court grants
leave for the amended complaint to be filed. See Sullivan v. Conway, 157 F.3d 1092, 1094 (71b Cir. 1998) (Sullivan). Ifthe thirty-day period beganto run by merely filing the motion for leave to amend
the complaint, a party would be attempting to remove a case before such time as it is certain that a basis for removal exists. A case is removable when the papers disclose that the case is or has
become removable, "not that it may sometime in the future become removable if something happens", i.e., granting leave to file an amended complaint SuI/ivan, 157 F.3d at 1094.
In the instant case, Defendant filed her Notice of Removal within thirty days of the state court's order granting Plaintiffleave to file her Supplemental Complaint. Accordingly, the Notice of Removal was timely filed.
Plaintiffnext argues that Defendant's actions in state court bar her from removing the case to federal court based on waiver of the right to remove.
The Seventh Circuit analyzed a previous version of28 U.S.C. § 1447(c) and found that the
4

Case: 1:01-cv-09551 Document #: 22 Filed: 10/16/02 Page 6 of 12 PageID #:290
statute did not authoriz(: remanding a case based on the waiver ofthe right to remove. See Rothner
v. City 0/ Chicago, 879 F.2d 1402 (711) Cir. 1989) (Rothner) . . In Rothner, the Seventh Circuit
considel"lld a previous version of Section 1447. The court analyzed the phrase "[i]f at any time before final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case...." The court held this could not be conStrued to authorize remanding a case on the l¥<lund ofwaiver. See Rothnerv. City o/Chicago, 879 F.2d 1402, 1411 (711) Cir. 1989) (Rothner). Since that decision, 42 U.S.C. § 1447 has been amended. I Section 1447(c) now reads, "[ilfat any time before final judgment it appears tbat.tbe district court lacks subject matterjurisdiction, the case shall be remanded." 42 U.s.C. §1447(c). Thus, the language interpreted in Rothner has been deleted. The Seventh Circuit has not revisited the question ofwaiver and the right to seekrernoval sin(:e Rothner.
Furthermore, it is at least arguable that Section 1447(c) is not applicable to the question of waiver. Assuming that EI(:venth Amendment immunity destroys subjectmatterjurisdiction, a matter not yet decided by the Slilpreme Court, the invocation of the Eleventh Amendment as to one or several ofthe claims of a (:ase does not destroy the court's original jurisdiction over the remaining claims. See WISconsin Dept. o/Corrections v. Schacht, 524 U.S. 381, 391-92 (1998) (Schacht). Therefore, Section 1447(c) is inapplicable. The statute would be applicable to the challenged claim or claims only, not necessarily the entire case. See Schacht, 524 U.S. at 392.
Language in the present version ofSection 1447(a), which states, "[a] motion to remand the
IThe revision to Section 1447(c) was enacted November 19, 1988. Therefore, the revision was already in pla(:e at the time Rothner was decided. However, the Rothner court .interpreted the previous Version, finding that Rothner was governed by that version of the statute. Rothner, 879 F.2d at 1405.
5

Case: 1:01-cv-09551 Document #: 22 Filed: 10/16/02 Page 7 of 12 PageID #:291
. .
.
case on the basis of any defect in removal procedure must be made within 30 days.•.." has been interpreted broadly to include waiver ofthe right to removal in certain circumstances, such as when the party seeking removal evidenced an intent to litigate in state court. See Fate v. Buckeye State Mutual Insurance Co., 174 F. Supp.2d 876,881 (N.D. Ind. 2001)(Fate). In Fate, the district court found that remand on thll basis of waiver was available post Rothner due to the revisions in the statute. Fate, 174 F. Supp. 2d at 881. The Fate court found that the defendant'sl~t of seeking dismissal of the case in state court and litigating the case for nearly one year in state court before seeking removal was affIrmative action by the defendant that evidenced an intent to litigate in state court Fate, 174 F. Supp. 2d at 882.
Other court have aliso found that a party can waive the right to seek removal based on actions taken while the case was pending in state court. See e.g., Brown v. Sasser, 128 F. Supp. 2d 1345, 1347 (M.D. Ala. 2000) (Brown); Hill v. State Farm Mutual Auto. Ins. Co., 72 F. Supp. 2d 1353, 1354 (M.D. Fla. 1999); FDIC v. Greenhouse Reality Assoc., 829 F. Supp. 507, 511 (0. N.H. 1993) (FDIC). Generally, actions taken by a party to defend against the plaintiff's claims or to merely maintain the status quo dc.es not constitute a waiver. Whereas, waiver is generally found if the actions by the defendant indicate an intent to have the case decided on the merits in state court, i.e., filing a motion to dismiss or counterclaim in state court. See Texas Wool and Mohair Marketing Assoc. v. Standard Accident Ins. Co., 175 F.2d 129, (Sib Cir. 1949) (Texas); Fate, 174 F. Supp. 2d at 881-82; Brown, 128 F. Supp. 2d at 1347; FDIC, 829 F. Supp. at 512.
Fate and the other district court cases are persuasive; remand on the basis of waiver is available in certain circumstances.
Plaintiffcontends that because Defendant filed an answer in state court before removal, she
6

Case: 1:01-cv-09551 Document #: 22 Filed: 10/16/02 Page 8 of 12 PageID #:292 •
has waived the right to remove the case from state court. Plaintiffcites St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283 (1938) (St. Paul) and Texas, 175 F.2d 129, in support of her argument:
In St. Paul, the Court held that a subsequent reduction in the amount claimed in a diversity
action did not oust the disbict court's jurisdiction. St. Paul, 303 u.S. at 295. Plaintiffcites to dicta
in St. Paul, where the COllrt stated, in pertinent part, "the status of the case as disclosed by the plaintiff's complaint is controlling in the case of removal, since the defendant must file his petition before the time to answer or forever lose his right to remove." Plaintiffcites no other court that has interpreted this language to mean that filing an answer in state court prohibits a party from seeking removal. This Court was wlable to find any such cases.
The language cited by Plaintiff in St. Paul was recently cited in WISconsin Dept. of Co"ections v. Schacht, 524 U.S. 381, 390 (1998). The Schacht Court cited to St Paul in support of its statement, "for purposes of removal jurisdiction, we are to look at the case as of the time it was filed in state court-prior to thetime the defendants filed their answer in federal·court." Schacht, 524 U.S. at 390. The statement recognizes that generally, a defendant files its answer in federal court after the case has been removed. Contrary to Plaintiff's argument, Schacht does not mandate that if an answer is filed in state court before the suit is removed, the Defendant has waived removing the suit.
In Texas, the Fifth Circuit found that the defendant waived its right to seek removal after it filed an answer that contain,ed a cross-claim. Texas, 175 F.2d at 838. This case is distinguishable from the present case because the Texas defendant not only filed an answer but also filed a crossclaim. On the other hand, merely filing a responsive pleading, such as an answer, has been found
7

Case: 1:01-cv-09551 Document #: 22 Filed: 10/16/02 Page 9 of 12 PageID #:293
·'
notto constitute a waiver of the right to remove. See e.g., Brown, 128 F. Supp. 2d at 1348 (filing
an answer with affirmative defenses and making discovery requests did not constitute a waiver of
the right to seek remand); Hernandez-Lopez v. Commonwealth ojPuerto Rico, 20 F. Supp. 2d 205, 209 (D. P.R. 1998) (Hernandez-Lopez) (filing answer did not constitute waiver); Haynes v. Gasoline Marketers, Inc., 184 F.R.D. 414 (M.D. Ala. 1999) (filing an answer with affirmative defenses did not constitute waiver). CI Fate, 174 F. Supp. 2d at 881-882 (finding waiver whejl party filed a
motion to dismiss and attl:mpted to bifurcate the issues because actions were not only to defend against plaintiffs claims but also to dispose of the case).
In the instant case, Defendant filed an answer to Plaintiff's Supplemental Complaint prior to removal. Defendant also filed a memorandum in response to Plaintiff's Motion to File the
Supplemental Complaint Bind toExtemlTemporary Restraining Order before leave was granted for the- Plaintiff futile her Supplemental Complaint. The obvious purpose of the arguments in Defendant's memorandum that related to the federal claims were an attempt to show that Plaintiff did not show a sufficientlikelihood ofsuccess on the merits ofher new claims to warrant extending the temporary restraining order. These actions by the present Defendant indicate that Defendant was merely trying to defend against the case and did not seek a decision on the merits ofthe case by the
state court. A•ccordingly, Defendant did not evince an intent to litigate in state court and did not
waive its right to remove th,~ action. See Brown, 128 F. Supp. 2d at 1348; Hernandez-Lopez, 20 F.
Supp. 2d at 209. Plaintiff also argues that remand is proper because this Court does not have jurisdiction to
decide the state law claims against Defendant under the Eleventh Amendment ofthe United States Constitution.
8

Case: 1:01-cv-09551 Document #: 22 Filed: 10/16/02 Page 10 of 12 PageID #:294 •
The fundamental principle of sovereign immunity of the Eleventh Amendment limits the
grant ofjudicial authority under Article mof the United States Constitution. Pennhurst State Sch.
& Hosp. ·v. Halderman, 465 U.S. 89, 121 (1984) (Pennhurst). A claim that a state official violated state law in carrying out their official duties is a claim against the state and is protected by the
Eleventh Amendment. A fj~dera1 court is required to examine each claim of a case to determine if
i the court's jurisdiction over that claim is barred by the Eleventh Amendment. No basis of
jurisdiction, including pendent jurisdiction, can override the Eleventh Amendment. Pennhurst, 465 U.S. at 121. Accordingly, th.e state's assertion ofan Eleventh Amendment bar means that the federal court cannot hear the barred claim. Pennhurst, 465 U.S. at 121; Wisconsin Dept. o/Corrections v. Schacht, 524 U.S. 381, 391-93(1998) (Schacht).
However, the state's assertion ofan EleventhAmendmentbar after removal does not destroy removal jurisdiction over non-barred .claims. Schacht, 524 U.S. at 389-93. A state's later invocation ofthe Eleventh Amendment may place a claim beyond the power ofthe federal court, but it does not necessarily destroy jurisdiction over the entire case; Schacht, 524 U.S. at 391. If the federal court has removal jurisdiction over claims that fall within the original jurisdiction of the federal court at the time ofrllmoval, the later invocation ofthe Eleventh Amendment for some ofthe claims does not destroy the already existing original jurisdiction of other claims that are not barred by the Eleventh AmendmeIlt. Schacht, 524 U.S. at 391.
In the instant case, a.t the time of removal, Defendant had already argued that the state law claims and the ADA claim were barred by the Eleventh Amendment in its answer. However, it had not asserted that the EleveIlth Amendment was a bar to the RA claim that this Court has original jurisdiction to decide. Assuming argumendo, that the mere assertion of the Eleventh Amendment
9

Case: 1:01-cv-09551 Document #: 22 Filed: 10/16/02 Page 11 of 12 PageID #:295
• . .
,
prior to removal can be a bar to removal jurisdiction, as Plaintiffcontends2, removal jurisdiction still existed at the time ofremoval in the instant case because the court had original jurisdiction over the
RA claim and no Eleventh Amendment bar had been asserted as to this claim. See Schacht, 524 U.S.
at 391. Based on the above, removal jurisdiction existed at the time ofremoval as to the RA claim. As stated above, Defendant had asserted the EleventhAmendment as a barto all ofPlaintiff's
state law claims and the ADA claim. Accordingly, the Court need consider whether it has subject matter jurisdiction over these claims.
The Eleventh Aml~ndment bars federal courts from exercising jurisdiction over state law
claims against a state. Pennhurst, 465 U.S. at 188-122. Therefore, this Court does not have
jurisdiction over Plaintiff's state law claims against the state, and they must be remanded. Generally, the Eleventh Amendment also bars federal courts from exercisingjurisdiction over
federal claims against a state. See Schacht, 524 U.S. at 204-05. However, an exception to the
Eleventh Amendment bar exists if the plaintiff is seeking prospective injunctive relief from state
officials to remedy an alleged present violation of a federal statute. See Ex parte Young, 209 U.S.
123, 159-60 (1908). Here, Plaintiffseeks to enjoin Defendant from reducing his Medicaid-covered nursing services at home in both the ADA and RA claims. This relief constitutes prospective . injunctive relief and is, therefore, not barred by the Eleventh Amendment.
For the reasons stated above, Plaintiff's Motion to Remand is granted in part and denied in
2Defendant argues 1hat Schacht's holding that a state's invocation of the Eleventh
Amendment in regard to a particular claim after removal did not destroy removal jurisdiction
over the entire case, does not ipso facto mean that raising the Eleventh Amendment prior to
removal renders a case unrl~movable. 10

Case: 1:01-cv-09551 Document #: 22 Filed: 10/16/02 Page 12 of 12 PageID #:296

• •

•
•

•
part. Plaintiff's state law claims, Counts I-V are remanded to state court. This Court retains
jurisdiction over Counts VI and Vll.

(J~ I~, Dated:

ZOO 2--

\ I

11

 </s> Case 1:01-cv-09551 Document 141-2 Filed 08/23/2007 Page 3 of 25
REPORT of SAMUEL S. FLINT, Ph.D.
Donna Radaszewski v. Barry S. Maram, 01-CV-9551, United States District Court, Northern District of Illinois, Eastern
Division
April 30, 2007
INTRODUCTION: I have been retained as an expert witness by counsel for the plaintiff to express opinions on the February 28, 2007 report of Mr. Todd Menenberg and his team from Navigant Consulting, Inc, related tothe case of Donna Radaszweski v. Barry S. Maram, herein after referred to as the Menenberg Report.
I have been asked to critique the accuracy of the report's cost projections and the methodology by which these projections were derived, and to comment on the Medicaid policy issues relevant to this case.
PROFESSIONAL QUALIFICATIONS: I have spent more than 25 years in the fields of child and adolescent health, health policy, and health economics. My academic credentials relevant to this issue to which I am reporting to the Court include published research in a half-dozen peer-reviewed journals as well as . several technical reports and white papers, the majority of which deal specifically with the Medicaid program. I also have authored five textbook chapters on the topic of health care economics.
Currently I am an Assistant Professor of Public Affairs at Indiana University Northwest where I teach statistics and graduate level courses in health economics and health policy. I have also held adjunct faculty appointments at the University of Chicago, Department of Pediatrics and North Park University, School of Business and Nonprofit Management where I taught health economics and health policy.
Among other relevant professional experiences, I served as the State of Illinois' Medical and Healthcare Services Portfolio Manager in the Bureau of Strategic Sourcing and Procurement in the Department of Central Management SerVices from March 2004 to July 2005. I also have training and experience in long term care field and held a long term care insurance producer's license issued by the Illinois Department of Financial and Professional Regulation between 2002 and 2006.
I have an earned Ph.D. from the University of Chicago, an M.S.W. from Florida State University, and a B.A. from the University of Rhode Island.
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Case 1:01-cv-09551 Document 141-2 Filed 08/23/2007 Page 4 of 25
A curriculum vitae is appended which further details my professional background.
CRITIQUE OF THE MENEBERG REPORT ESTIMATES
Mr. Menenberg was asked by counsel for the Illinois Department of Healthcare and Family Services (HFS) "to quantify the economic impact on the cost of the State's current Persons with Disabilities Waiver program, assuming the Radaszewskis were to prevail on their request for additional home nursing services for Eric and other individuals were then also able to access additional waiver services." (Menenberg Report, page 6)
As will be detailed below, these cost projections are not just incorrect. They are misleading in the extreme since they were derived by unsound research methodologies and based on invalid assumptions regarding the Medicaid program.
Mr. Menenberg was asked to examine two potential Medicaid populations: (1) current facility residents who potentially would move from skilled nursing facilities (SNFs) to community-based settings and receive services through the Persons with Disabilities (PWD) waiver program; and (2) current PWD waiver recipients who use services at a cost less than their "Service Cost MaximumN (SCM).
Group 1·-Current SNF Residents
PROBLEM 1: The Menenberg Report uses an incorrect extrapolation process that quintuples the potential upper bound cost projections.
The Menenberg report used the federally mandated, periodic census of SNF patients, the Minimum DataSet (MDS) assessment, as the instrument to determine how many current SNF residents could return to the community should the Medicaid program entirely eliminate the SCM cost cap now in place. The choice of this data set to make that estimate is quite reasonable since it contains three specific questions regarding SNF residents' desire and potential to return to the community and is asked of every single SNF resident insured by Medicaid and/or Medicare.
The Menenberg team contends it has identified 1,100 PWD beneficiaries among the 9,271 SNF residents which would increase state Medicaid costs by determining which residents: (1) stated they wanted to leave their SNF; (2) stated there was a person positive towards their discharge; and (3) were expected to be discharged more than 90 days from the date of their participation in the MDS survey.
The MDS is a credible source for gathering that type of information as it is a
comprehensive census. However, a census is not a representative sample. It is a
survey for which every member of a population under consideration is
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Case 1:01-cv-09551 Document 141-2 Filed 08/23/2007 Page 5 of 25
questioned. As noted in the first chapter of undergraduate statistics textbooks (Fox. 2003) a census is quite different from a sample. Findings gleaned from a census are referred to as population parameters, and they are noted in research findings using Greek letters so as not to be confused with sample statistics.
In the absence of a census, population characteristics are derived from inferential statistical tests performed on an appropriately drawn sample of sufficient size and representativeness from the larger population from which the sample was taken. Statistics are noted in research reports using English letters. so they will not be confused with census data/population parameters.
Standard research practice does not permit taking a nonrandom subset of a census and treating it as if it were a sample. Thus, extrapolating the responses from the subset of the surveyed population that answered questions of interest to survey nonrespondents who have already been asked those very same questions but did not provide full information is a violation of the most fundamental rule in statistical analysis. Yet this is precisely what was done in the Menenberg Report. Only if Mr. Menenberg obtained a random sample of MDS records of sufficient size and representativeness (or perhaps a randomly selected stratified sample similar to the technique attempted on page 11 of his report with the ADL distribution). would he and his team have been justified in the extrapolation used to generate their cost projection.
Let me explain the logic behind the hard and fast rules that pertain here. First. researchers cannot pretend to be mind readers. They are not permitted to fill in missing data for survey respondents in either a census or a sample. In fact, response rate is a standard criterion used by reviewers to determine the validity of a research report since it is understood that some amount of missing data is a part of virtually all research efforts. Whether a census or a sample. researchers cannot surmise how any respondents would answer a question even if their basis is similarities in demographics. other answers to comparable questions. health status. or any other factors that would appear to demonstrate comparability between the respondents and non respondents. Such a technique is not standard practice and would never pass peer review for journal publication or presentation at a scientific meeting.
Second. researchers are not permitted to take answers from any size subset of census responses, treat this group like an independently drawn random sample, and draw conclusions on the larger population. For instance. a researcher could
sample a small fraction of 1% of the entire U.S. population and make estimates
about the U.S. population. (e.g., one in seven Americans are Latino) Or, a researcher could do a complete unose count" like the U.S. Census Bureau undertakes every ten years. and one would fully expect to obtain the same finding. But a researcher cannot survey every resident of every other state and assume their responses would be the same as a census taken of the entire country or that their responses would match up with the findings from a random
3

Case 1:01-cv-09551 Document 141-2 Filed 08/23/2007 Page 6 of 25
sample of all U.S. residents, even if the sample size were far smaller. The every-
other-state technique could have perhaps 50% of all Americans responding, but
there is no way of knowing if the people in the surveyed states are different from those in the non-surveyed states. For instance, if picked alphabetically and
Alabama was included and Alaska omitted, the national estimated count for Aleuts would be underestimated.
Only from a sufficiently sized random sample, where a\l members of a population under study have an equal chance of being selected, can you draw conclusions and make estimates regarding the population from which it was drawn. Inferential statistical tests are designed to make accurate estimates about a population from a subset of their members. However, this is entirely different from guessing nonrespondents' answers in a census by proportionately extrapolating from respondents who completed the part of the survey section under study. If you ask the full population, estimation techniques are no longer needed, as there is nothing to estimate. Since you have asked everyone, you have the exact answer.
Yet violating this simple premise is precisely what Mr. Menenberg did. Here are his words. "...we observed that a number of the Medicaid nursing facility residents under age 60 did not respond to all three questions. Assuming that these non-responding individuals would have answered the three questions in a similar manner as those who did respond to all three questions, there would have been approximately 1,100 Medicaid residents (including the 216 individuals above)... Therefore, for purposes of my analysis, I have determined that approximately 1,100 current nursing facility residents would potentially move from nursing facilities into the community and be served under the Persons with Disabilities Waiver were the SCM limitations removed." (Menenberg, pages 9-10)
No table or data were presented in the report to show how Mr. Menenberg derived his total of 1,100. However, in his April 10, 2007 Deposition (page 109, line 21) he stated that 7,286 SNF residents did not answer the first question regarding whether or not they wanted to leave their facility. These nonrespondents had answers to these questions assigned to them in the aggregate by the Menenberg team. That is roughly four fifths of the entire population of 9,271.
Were the nonrespondents different from the respondents? Mr. Menenberg just assumed that the 80% were identical to the 20% who responded fully. However, the population under scrutiny has enormous variability, as noted by the ADL variabilrtyon page 11 of the report. Extrapolating from SNF patients verbal enough or otherwise capable of revealing their preferences to the nonresponding group, which surely comprised a larger proportion of patients with dementia and other more severely debilitating diagnoses, is absurd on its face and typifies the type of selection bias that randomization and other sampling techniques are designed to safeguard against.
4

Case 1:01-cv-09551 Document 141-2 Filed 08/23/2007 Page 7 of 25
We do not know why the questions were not answered by the respondents. However, the fact that four out of five respondents did not answer al\ three of the pertinent questions for this government-mandated data collection process is curious indeed. Mr. Menenberg did not report on the nonresponse rate of other MDS questions, so we do not know how many other sets of questions were not answered fully by 80% of the respondents. But if this is a typical nonresponse rate, the well-regarded MDS data set would not hold the value it does for federal and state government quality control agencies and others who rely on its accuracy and completeness.
There also is a question as to whether Mr. Menenberg's own selection criteria were adhered to. The Menenberg Report sought to exclude SNF patients who were scheduled for discharge within the next 90 days. Yet 1,937 of 9,271 patients in the universe under study indicated that their discharge date was "uncertain" by answering question Q1c with a "3" (Bates number NAV 001342). Stating that the discharge date was uncertain did not eXClude these respondents
from the analysis even though it could have allowed for inclusion patients who
were in fact going to be discharged within 90 days. This is not a trivial issue since we know that nationally 68% of SNF patients are discharged within 90 days (Hendrickson and Reinhard, 2006).
This aspect of the analysis raises yet another methodological question. It calls into question whether the final 216 cases overestimates the number of SNF
patients who would leave institutional care if the benefits package for community-
based care was unHmited by SCM cost caps. As noted above, just 21% of the entire group were designated as "uncertain" with respect to their anticipated date of discharge, yet 89% (193 of the 216) were categorized as "uncertain" by virtue of answering "3" to Question Q1c (Bates pages HFS 9077, 9087. 9097, 9107, 9113, NAV 1326). Just 23 (one-quarter of one percent) of the 9,271 potential SNF residents who could become PWD beneficiaries satisfied the Menenberg requirements fully.
Surely. some of the "uncertain" group included SNF patients that would be leaving in 90 days or less, but it was unknown,at the time to the survey taker. Since there were more than four times as many discharge time "uncertain" in the 216. logic would point to a reduction in the number proposed in The Menenberg Report.
Here's what we know. All 9,271 SNF residents potentially eligible for the PWD waiver were asked ifthey wanted to return to the community. At most 216 (2.4%) want leave the SNF and believe that someone in the community was "positive towards" taking them in.
This number. not 1,100, is the absolute ceiling. and I suspect the 216 may be inflated. As noted above, some patients may have been on their way out of SNF
5

Case 1:01-cv-09551 Document 141-2 Filed 08/23/2007 Page 8 of 25
care already under the current rules since nearly nine out 10 fell into the "uncertain" discharge date category.
We also have no idea if the alleged "person positive towards discharge" was prepared and capable to do what is necessary to complete the transfer of the patient from the SNF to the community. No one from the Menenberg team interviewed anyone to determine if some of this may have been wishful thinkmg on the part of the SNF residents.
Every single SNF patient who could potentially be eligible under the PWD waiver was asked, and the Court has their response. That number is likely less than 216. Hence, the Menenberg Report estimate of the size (and estimated incremental added cost) of the group of potential PWD beneficiaries must be reduced by more than 80%.
Problem 2: Community care cost projections were derived from a skewed, sample, drawn by an invalid method.
In order to estimate the cost to serve current SNF residents who it was assumed would be opting for community-based care, the Menenberg team attempted to create what would be called a stratified sample with 28 cases. A stratified sample is a type of sample that divides a population into designated subgroups in the same proportion that they exist in the larger population. In this study, the subgroups should mirror the larger population of 216 with respect to their "Activities of Daily Living" (ADL) categories which serves as the proxy to capture service need. However, the sampling process employed by the Menenberg team violated two fundamental rules of statistics.
First, a stratified sample must also be random. (Sullivan, 2005) That is, for each of the groups that the researcher wants to be certain is represented in their sample, cases are selected on a random basis from each category. Rather than random selection, cases for this stratified sample were '1udgmentally selected" (page 10, Menenberg Report). Nowhere is this unprecedented sampling technique explained or justified, and a review of the outcome of this technique demonstrates that it failed.
The "judgmentalN process resulted in a sample skewed toward a much sicker than average population. Three of the 28 cases, roughly 10% of the sample, have their SNF care paid for under the "Exceptional Care Rate," (Bates pages NAV 000706 and NAV 001378). The Exceptional Care rate, as its name implies, is a higher reimbursement rate reserved for the sickest 1% of SNF patients. Because the MDS is a census, we know for certain that just 540 of the state's 47,624 current SNF patients qualify for this outlier rate category. (Bates NAV 00639 and 001293). Thus, this extremely unorthodox samgling process resulted in cost projections made from a sample that overrepresented exceptional care
6

Case 1:01-cv-09551 Document 141-2 Filed 08/23/2007 Page 9 of 25
rate patients by a factor more than 10 to 1. This type of result does not occur
when conventional random sampling methods are used to select cases for study.
In addition to the overrepresentation of exceptional care rate cases, 7% of the sample (two of 28 cases) listed Medicare as their payer with a Daily Rate of "$0,00" for their Medicaid payment. (Bates pages NAV 000706 and NAV 001378). Unlike Medicaid, Medicare only pays 100% of SNF care if a patient is discharged directly from a hospital after a stay of at least three days. Only then does Medicare pays full cost and that extends for a maximum of 20 days. (Another 80 days is covered by Medicare for a partial amount.) Hence, this 7% of the sample likely had greater medical needs than the typical SNF patient since they were just released from a hospital perhaps the day before and in no instances were they longer than 20 days from hospital inpatient care.
Since health care needs drives medical costs, these two factors would appear to inflate the costs of the 28 cases, and consequently the 216, as well as the hypothetical 1,100.
Problem 3: Sample sizes used in the clinical review were grossly insufficient.
The next major flaw in the sample used to estimate costs for this total population of more than 9,000 patients is a grossly inadequate sample size. As concurred to above, the process of creating a stratified sample using ADLs as a case mix control is a reasonable way to proceeO. However, in all but one of the 21 ADL categories. there was iust one patient. "Cell sizes" with less than thirty cases are suspect by researchers, but can be found acceptable in some instances. However, no matter how constrained a sampling process may be, in no instance would findings be regarded as credible if more than 30% of cell sizes have less than five cases. (Fox, 2003). Consistently. selecting one case for 95% of the categories is an invalid methodology to draw conclusions for a larger population.
Problem 4: Community care cost projections were made through a potentially biased review process.
To estimate the cost of these alleged 1,100 SNF residents who could potentially seek care under the PWD waiver, Mr. Menenberg and colleagues relied on one nurse who is employed by HFS, the defendant in this case. (Menenberg, page 11, footnote 10). The unconscious desire of an employee to please their employer raises a question of bias.
A scientific process to develop hypothetical treatment plans would be to have an independent group of two or three professionals asked to develop community care plans from the same data set that the career state nurse used. However, they should not know why they are being requested to develop community-based
7

Case 1:01-cv-09551 Document 141-2 Filed 08/23/2007 Page 10 of 25
treatment plans, and they should review samples of each others' work to assure consistency of process and accuracy. This would generate reliable estimates.
Summary and Conclusion Regarding Group 1 Cost Estimates: The cost
estimate of $33 million using January 2007 rates was derived by unsound methodology and is vastly overstated. Just scaling back the four-fold increase generated from Mr. Menenberg's extrapolation by use of a population parameter as if it were a sample would bring the cost projection down to $6.5 million.
Further reductions should be made since the 216 potential PWD residents that believe they could reenter the community was not checked to see if in fact there is a willing person to care for them or that they would actually leave the SNF if the question moved from theoretical to an actionable choice. Plus, many of the 216 may be leaving institutional care anyway since 90% had a discharge date categorized as uncertain and two-thirds of SNF patients are discharged from institutional care within 90 days.
The cost of care in the community was estimated by an unheard of sampling technique that generated a sample so unrepresentative of the larger population that it contained ten times the expected number of Exceptional Care-rated SNF residents as the larger population. It also may have been tainted by a state employee who could have been biased toward the interests of her employer. Finally, the sample was far too small to meet the most minimum reliability .standards used by statisticians or actuaries.
If the Radaszewskis prevail and that is interpreted by the Courts as a mandate to remove the SCM expenditure caps, my opinion is the upper bound cost estimate for Group 1 is surely less than $6 million and perhaps even less than zero as I will discuss below.
Group 2--Current Persons with Disabilities (PWO) Waiver Participants
According to Exhibit 2 of Mr. Menenberg's report, there are 26.189 PWD
beneficiaries who have aggregate monthly costs of $26,197,059. Annualizing this monthly data results in an average per-beneficiary yearly cost of $12,004 and an aggregate annual program cost of $314 million.
With assistance from the state, Mr. Menenberg and his team used the data to provide four estimates for the Court. The first estimate is a calculation of all PWD beneficiaries' costs assuming every PWD patient immediately shifted their care plans to a service level that would result in expenditures at their Service Cost Maximum (SCM) cap. Estimates two and three were generated by adding 10% and 20% additional costs to the expenditure levels at the SCM cap. And a fourth projection was derived by calculating the cost of services that would be incurred if each service plan were increased by 350%. the difference between the cost of
8

Case 1:01-cv-09551 Document 141-2 Filed 08/23/2007 Page 11 of 25
services that the Radaszewskis requested and the cost of the service plan developed for Eric in 2000 under the PWD waiver.
This approach resulted in projections that the state could potentially be liable for anywhere from $206 million to $786 million additional dollars should the Radaszewski's prevail, raising the PWD expenditure level from $314 million to $520 million to $1.1 billion. Thus, by continuing to provide the current array of services for one extremely disabled young Medicaid beneficiary, the state's cost for the PWD waiver population would increase anywhere from 66% to 250% and create an unreasonable burden for the state. This is incorrect for several reasons.
First, for no reason cited in the report, the model assumes that medical necessity standards will be eliminated from the PWD waiver. Menenberg Report Exhibit 2 is entitled "Additional Cost if Utilization Review Function Removed - Persons with Disabilities Waiver" (italics added). Yet, at no point does the report indicate why beneficiaries' care plans, which determine the eligible services for each beneficiary and drives their expenditures, would no longer be subjected to standard utilization review and medical necessity guidelines. It simply assumes that a consequence of a favorable Court ruling would change standard policies and procedures deeply imbedded in Medicaid as well as every other public and private insurance plan in existence and provides no explanation why this policy change would occur.
In his April 10, 2007 Deposition (Page 88, lines 8 -10), Mr. Menenberg states, "... as I understand it, if he [Eric} prevails he's trying to ignore the SCM and just get whatever services he asks for." On page 162, lines 2 through 6, he states, "People given a choice of free services many times avail themselves of that whether or not they need it. But if you say no utilization review, no ceilings, no caps, whatever you want you'll get it, this is the mathematics if you open those ceilings."
I would concur that the body of research evidence in health care financing indicates that all other things being equal, an increase in either benefits and/or a reduction in point-of-service cost-sharing should be expected to lead to a marginal increase in utilization in all insured populations, including the Medicaid population. However, as I understand the case, at no point is there a request to eliminate all ceilings or SCM cost caps.
With respect to policy research in the specific field of long-term-care, concerns over the so-called "woodwork effect" has been examined extensively. However, the woodwork effect issue is related to a spike in costs when states begin a Home Care and Community-Based services (HCBS) program, when only institutional care was previously provided. The concern is that non-paid, informal caregivers such as family and friends would reduce their free care and the state would have to pay for currently provided services. But this does not pertain to a
9

Case 1:01-cv-09551 Document 141-2 Filed 08/23/2007 Page 12 of 25
population like the Illinois PWD group which already has in place satisfactory home care arrangements. No reading of the empirical evidence could support the enormous spike in care asserted in the Menenberg Report.
The assumption that overnight, demand for care would increase by at least 66%
has absolutely no basis. Previously uninsured people gaining coverage show no such increase, yet they are starting at zero coverage, and not with a fully functional care pl'an in place. Other evidence notes that in any population, including Medicaid, roughly one-fourth of beneficiaries in any given year use no services whatsoever (Feldstein).
Not only is there no empirical evidence in the health economics research literature to support such a claim, simple logic would eliminate this as a plausible outcome viewed from either the patient or the payer perspective.
• Why would people seek treatments for illnesses that they do not have? What otherwise healthy people would queue up for chemotherapy or heart surgery because they could get such care for free?
• Why would any public or private insurance plan end utilization review, concurrent review, disease management. preadmission testing, pharmacy benefits management, prior approval for inpatient care, prescription drug formulary limits, and all the other carefully crafted array of safeguards developed over the past twenty years to control unnecessary utilization of services?
Finally, the experience in this state provides evidence that this should not occur. According to the Department of Human services (OHS) MHome Services Program 2004 Annual Report" (DHS. Home Services Program Annual Report 2004, www.dhs.state.il.us/ors/dhs drs-hspar2004.asp), many current services are not used by PWD beneficiaries. For example, just 1% (269 beneficiaries) used Home Remodeling benefits. The same report states that "a physician's approval of the initial plan of care" is required for any services. Why would a favorable decision for the plaintiff change the status quo?
Other than a marginal increase in costs and care of perhaps a few percent, medical necessity would continue to drive utilization, not amount, duration, and scope of an insured party's benefit package. The assumption that 100% of PWD beneficiaries would just demand free services and be allowed to receive them with no medical basis is not justified by prior published research and flies in the face of logic; and nowhere in the Menenberg Report or in Mr. Menenberg's deposition is there any rationale stated to justify such an outcome.
Second, if utilization increases were to come as a result of expanded benefits, only 864 of the 26,189 current PWD beneficiaries could possibly receive additional benefits.
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Case 1:01-cv-09551 Document 141-2 Filed 08/23/2007 Page 13 of 25
Exhibit 2 groups PWD beneficiaries into seven categories based on their SCMs.
Within each category, PWD beneficiaries are broken down further into subsets for each of the $100 incremental bands within the seven groups. Presumably all
medically necessary services are currently being provided to all the PWD
beneficiaries that fall in all but the top tier of medical costs for their expenditure
bands. Thus, the only possible group of PWD beneficiaries who could potentially
gain new services are those beneficiaries who have reached the cap for their tier. That number is 864, or 3.3% of the total current PWD beneficiary population.
Even that vastly reduced number of 864 is too large. The only PWD beneficiaries who would have any chance of receiving expanded benefits are those who have unmet medical needs, but are capped by the eXisting Medicaid benefit package. However, there is no way to identify the subset of patients who are in this situation with the data available in the report, so my estimate for the population who could have expanded benefits is less than 864.
Finally, it is unclear to me why any current PWD beneficiary would have their care plans change should Eric Radaszewski be permitted to continue his MfTD care plan under the PWD waiver.
Exceptional care rates are currently provided under existing rules to PWD beneficiaries (Sates NAV 465-467), and DHS offered a care plan for Eric Radaszewski at a rate of $4,593 per month, nearly two thousand dollars per month greater than the highest current SCM cap. Also, the Menenberg Report Exhibit 2 footnote states "38 individuals had projected monthly costs in excess of the SCM." Consequently, provisions under current law apparently permit Illinois to provide medically necessary care to this extremely fragile young man without any basis for a claim of additional services from any other PWD beneficiary.
Summary and Conclusion Regarding Group 2 Cost Estimates: Considering the fact that exceptional, care rates are now permitted, my lowest estimate for Group 2 is zero dollars. If there are special circumstances surrounding this case that would allow it to serve as a precedent, fewer than 864 current PWD . beneficiaries could have existing unmet needs now paid for by the state. Since there is no way to estimate the incremental benefits that would be added, I will arbitrarily propose that uncapped SCMs would increase expenditures between 10% and 30% across-the-board in order to provide the Court with an order of magnitude estimate. A 10% increase for every top tier SCM beneficiary would cost the state an add itional $152,124 and a 30% increase would cost an additional $456,372.
Overall Conclusions and Estimates Using the Menenberg Model
Using liberal estimates to generate an upper bound cost risk for the state for both groups 1 and 2, it is my opinion additional costs would be no more
11

Case 1:01-cv-09551 Document 141-2 Filed 08/23/2007 Page 14 of 25
fer than $6.5 million year. That is approximately 2% of current program costs
and between 1/37 and 1/126tt1 of the Menenberg Report projection range.
In the following section I will present policy findings that could lead an objective observer to conclude that the net impact of permitting Eric Radaszweski and other SNF-directed Medicaid beneficiaries to remain in community-based settings may actually reduce total long-term-care expenditures for the state.
Bevond the Menenberg Report Estimates: Why a Reorientation of the Illinois Medicaid Long-Term-Care Program to Accommodate Radaszewski-
like Beneficiaries in the Community Could Reduce Current State Expenditures
The preceding section of this report addresses major flaws in the process by which the Menenberg team generated incremental cost increase estimates for the state, should the Radaszewski position prevail. I believe the Court would benefit from hearing another perspective on the issue at hand using different assumptions than those used by the Menenberg team.
The defense based their model on health economics research that neither I nor anyone else in the field would likely dispute, i.e., unlimited benefit increases (in the absence of utilization controls and point-of-service cost-sharing) would lead to some increase in utilization of medical services and commensurate cost increase. The Menenberg team and I differ mightily on the cost estimates since I believe they were derived employing incorrect assumptions and improper methodology, but not the interpretation of the policy research evidence.
However, I do not accept framing the debate entirely by limiting the discussion to the selected health policy research findings of the Menenberg team, and I would like the Court to consider another perspective regarding potential state expenditure changes using health policy research findings as widely accepted as the points that buttress the Menenberg Report.
If the state of Illinois wants to contain Medicaid costs, it should reorient its lon9term-care program from one which pressures beneficiaries, like Eric Radaszewski, to reside in SNFs to one which maximizes suitable home care.
Illinois is perhaps the most overbedded state in the country. According to the
U.S. Census Bureau, as of April 1, 2005. Illinois accounted for 4.3% of the U.S. population. (U.S. Census Bureau, Population Division, 2005). Yet the state
accounts for 5.1 % of the country's SNFs and 6.0% of the nation's SNF beds
(AHCA, 2005). This disproportionate SNF capacity exists despite the fact that Illinois has a smaller proportion of the age 65 and older population than the rest of the country, 11.9% vs. 12.1 %, and a lower poverty incidence, 12.4% vs. 14.0%, two standard benchmarks for estimating SNF demand (AHCA, 2005).
12

Case 1:01-cv-09551 Document 141-2 Filed 08/23/2007 Page 15 of 25
The presence of excess capacity and the state's bias toward institutionalization is reflected in Medicare statistics. The proportion of Illinois Medicare expenditures for SNF services for Medicare beneficiaries is 39% greater than the national
average, 7.5% of total Medicare payments compared to 5.4% for the rest of the
country (AHCA, 2005).
It is too easy to be admitted into an Illinois SNF and too hard to get community-
based care. Patients are placed in SNFs in Illinois with fewer medical needs than elsewhere in the country. The national average AOL dependence for SNF patients is 3.9. In Illinois it is 3.5 (AHCA, 2005), 10% lower than the national average.
Another indicator that the Illinois SNF patient population has fewer medical needs than their counterparts in other states is the fact that Illinois has the absolute lowest proportion of Alzheimer patients of any state in the country with 34%. Thus, two-thirds of SNF residents in Illinois are non-Alzheimer's patients compared to less than half in other states (CareScout, 2006). Since there is no reason to suspect that Alzheimer's has a lower incidence in this state than elsewhere, this smaller proportion reflects a disproportionate number less medically needy patients occupying Illinois SNF beds.
Despite a distinctly lower threshold of medical need for SNF residence, Illinois' SNF occupancy rates are just 79.2% compared to a national average census of 85.4% (Hendrickson and Reinhard, 2006).
The state's historic tendency to institutionalize ranks its Medicaid program 39th of 50 states with respect to its proportion of dollars expended for community-based care. In FY 2004, only 27% of its long-term-care expenditures were paid for community-based care compared to a national average of 36%, which is onethird greater. More progressive Medicaid programs in states like Oregon use 71 % of their long-term-care expenditures for community-based services (HeSS Clearinghouse, 2007).
The accelerating trend toward community-based care continues to gain momentum in both private and public sector health care financing systems since it is widely accepted that it improves the quality of life of patients, is desired by patients, and is expected to result in cost savings, although the empirical evidence to date is mixed. Nonetheless, private, for-profit LTC insurers generally require' no waiting period for LTC services provided at home, but have 30 to 180 day waiting periods for benefits to begin for an institutional placement.
The federal government also has expressed confidence in the cost-containment potential of community-based care. The Deficit Reduction Act of 2005 (ORA) offers state Medicaid programs an enhanced federal match for states to work with patients who have been in SNFs for six months or longer to create plans to move these patients out of institutions and back to the community (Hendrickson
13

Case 1:01-cv-09551 Document 141-2 Filed 08/23/2007 Page 16 of 25
and Reinhard, 2006). The DRA also removed the requirement of states to produce waivers for community-based care and has removed roadblocks to progressive plans like the "money follows the person" plans in Vermont and elsewhere. Previous federal legislation even allowed states to waive federal benefit "comparability" requirements to encourage states to move more rapidly toward "rebalancing" as it is called. (Shirk, 2006).
The federal government is so certain that community-based care saves money that they have provided the financial incentives to states cited above despite the fact that the Government Accountability Office (GAO) has reported to the Congress that costs for other federal programs, (e.g., Food Stamps, SSI, housing subsidies) will increase when states shift their long-term-care populations out of institutional settings (Hendrickson and Reinhard, 2006).
Despite all these federal financial incentives and the current thinking in the health insurance community regarding the financial and other benefits to be gained by pressing for community-based long-term-care services, Illinois clings to its institutional bias and is one of the slowest Medicaid programs in the nation to adopt progressive change. In researching this report for the Court, 14 states (IN, WI, lA, MI, OR,VT, AK, WA, MD, MN, CO, NB, eN, NJ) were identified as having noteworthy pilot projects to support the shift from SNF to the community (Shirk, 2006;Hendrickson and Reinhard, 2006).
The state's own published report (DHS, Home Services Program Annual Report 2004, www.dhs.state.il.us/ors/dhs_drs-hspar2004.asp) indicates a savings from the PWD waiver of more than $10,000 per beneficiary per year for each former SNF resident who returns to the community and continues to receive care at home. Even the Menenberg Report 28 case subset (Exhibit 1) which included exceptional care rate beneficiaries ten times as frequent as the overall population, reported projected cost savings in 18% of its cases.
If Wisconsin can set the goal of reducing its SNF population by 25% in eight years; and regional states like Michigan, Indiana, and Iowa can be cited for model programs; and Connecticut is projecting savings of $35,000 per year per transitioned SNF beneficiary (Hendrickson and Reinhard, 2006), why does Illinois focus on preserving SNF care and claim it is doing so to reduce Medicaid costs?
Summary
1. The methodological flaws found throughout the Menenberg Report provides the Court with little reliable guidance with respect to potential future state costs.
2. There is no reason to believe that maintaining Eric Radaszewski's care plan in the PWD waiver program will somehow remove all utilization constraints for other PWD beneficiaries.
14

Case 1:01-cv-09551 Document 141-2 Filed 08/23/2007 Page 17 of 25
3. The state of Illinois is unnecessarily overspending Medicaid dollars by resisting the widely accepted view that a community-based care oriented long-term-care program saves money, and the demand to place Eric Radaszewski in a SNF is a reflection of that backward thinking.
Report References
AHCA (American Health Care Association) Reimbursement and Research Department,. The State of Long-Term Health Sector 2004: Characteristics, Utilization, and Government Funding. www.ahca.orgfresearchfindex.htm. March 28,2005.
CareScout Customized Research. www.carescout.com/productsfresearch.htm. Viewed April 23, 2006.
DHS Division of Rehabilitative Services, "Home Services Program 2004 Annual Report." www.dhs.state.il.usfors/dhs drs-hspar2004.asp.
Feldstein, PJ. Health Policy Issues-An Economic Perspective. Third Edition. Health Administration Press, Chicago, IL, 2002
Fox, W. Social Statistics. Fourth Edition. Thomson Wadsworth. Belmont. CA, 2003.
Hendrickson L and Reinhard. SC. "Money Follows the Person: State Approaches to Calculating Cost Effectiveness." Rutgers Center for State Health Policy, New Brunswick, NJ, September 2006.
HeBS Clearinghouse for the Community Living Exchange Collaborative. "Medicaid Long Term Care Expenditures, FY 2004." www.hcbs.org/files/71/3536/FY2004InstComm.xls.
Shirk, C. "Rebalancing Long-Term Care: The Role of the Medicaid HCSS Waiver Program." National Health Policy Forum, The George Washington University, Washington, DC, March 3, 2006.
Sullivan, M. Fundamentals of Statistics. Second Edition. Pearson Education, Upper Saddle River, NJ, 2005
U.S. Census Bureau. Population Division. Table 1. Annual Estimates of the Population for the United States and States, and for Puerto Rico: April 1, 2000 to July 1, 2005 (NTS-EST2005-01). December 22, 2005.
15

 </s> -.

Case: 1:00-cv-05391 Document #: 1 Filed: 09/01/00 Page 1 of 11 PageID #:1

UNITED STATE DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI, Guardian for Eric Radaszewski, on his behalf,
Plaintiff,
vs.
ANNPATLA, Director, Illinois Department of Public Aid,
Defendant.

)

~

) JUDGE GRN)Y

) ) )

O,OC

)

)

No.

)

Civil Action

)

)

)

)

iYlr\GlSTilATE !lJ'OGE KEYS

)

nocKn~n

'.SEP o5 ?000
COMPLAINT

I. Preliminary Statement 1. Plaintiff Donna Radaszewski brings this action on behalf of her medically vulnerable adult
child, Eric Radaszewski. Eric is 21 years old and is eligible for medical assistance under the Medicaid program. In 1992, he was diagnosed with brain cancer. As a result ofthe disease and treatment, Eric lost a great deal of his brain and bodily functioning and needs one-on-one skilled nursing care twenty four hours per day. Eric has received a minimum of sixteen hours per day nursing care provided by registered nurses at home with his parents for the past five years under a Medicaid waiver program for children who have exceptional medical needs and who would be institutionalized at State expense if not given extensive medical care at home. Since Eric has turned 21, defendant, without appropriate notice or hearing, has reduced the funding for his nursing services to $4593 per month, providing Eric the equivalent of only five hours of services per day. Eric now faces an immediate, potentially lethal, medical crisis because the hours of one-on-one nursing services provided to him have been drastically reduced.
Eric's mother and guardian, Donna Radaszewski, brings this action on Eric's behalf, seeking
\~

..

Case: 1:00-cv-05391 Document #: 1 Filed: 09/01/00 Page 2 of 11 PageID #:2

v
declaratory relief declaring the State's reduction of these medically necessary nursing services to be in violation of the Medicaid statute and its implementing regulations and the requirements of due process. Plaintiff also seeks injunctive relief enjoining the reduction of the nursing services provided to Eric. II. Jurisdiction
2. Jurisdiction is conferred on this court by 28 U.S.C. §§ 1331 and 1343(3). Declaratory relief is authorized under 28 U.S.C. §2201.
3. Plaintiff's claims are brought pursuant to 42 U.S.C. §1983. III. Parties
4. Plaintiff Donna Radaszewski is the guardian for her disabled adult son, Eric Radaszewski. She brings this action in her capacity of guardian on his behalf. Plaintiff and her son reside in DuPage County, Illinois.
5. Defendant Ann Patla is the Director of the Illinois Department of Public Aid (IDPA). IDPA is the state agency charged with the administration of the Medicaid program in Illinois. III. Description of the Medicaid Program
6. The Medicaid program, Title XIX of the Social Security Act, codified at 42 U.S.C. §1396 et ~.• is a joint federal and state funded program enacted to provide necessary medical assistance to needy disabled persons and families with dependant children, whose income and resources are insufficient to meet the cost of care. States choosing to participate in the Medicaid program must operate the program in conformity with federal statutory and regulatory requirements. 42 U.S.C. §1396a.
7. Each State participating in the Medicaid program must submit a Medicaid plan to the Secretary of Health and Human Services (HHS) for approval. 42 U.S.C. §1396.
8. Participating States must cover certain mandatory medical services in their plans and may, at
2

Case: 1:00-cv-05391 Document #: 1 Filed: 09/01/00 Page 3 of 11 PageID #:3
v
their option, offer certain other services in their plans. 42 U.S.C. §1396a(a)(IO), 42 CFR §440.225. 9. Each service covered in a State's Medicaid program must be sufficient in amount, duration
and scope to reasonably achieve its purpose. 42 U.S.C. §1396a(a)(IO)(B), 42 CFR §440.230(b). I0. A State may not arbitrarily deny or reduce the amount or scope of any covered service
based solely on the diagnosis or type of illness or condition of the Medicaid recipient. 42 CFR §440.230(c).
II. Private duty nursing is an optional covered service under the Medicaid statute. 42 U.S.C. §1396d(a)(8), 42 U.S.C. §1396a(a)(IO)(A). If a State chooses to include private duty nursing as a covered service in its state plan, then these services must be provided to persons who require more individual and continuous care than is available from a visiting nurse or than is routinely provided by the nursing staff of a hospital or nursing facility. 42 CFR §440.80. Under the regulation, the state has the option to provide private duty nursing services in the recipient's home, at a hospital or at a skilled nursing facility. 42 CFR §440.80(c).
12. Illinois' Medicaid plan includes coverage for private duty nursing, with the conditions that the private duty nursing is recommended by a physician, that prior approval from the State agency is sought, and that the nursing care not be provided by a relative. The State plan provides no conditions regarding where these services must be provided. Sections of the Illinois State Medicaid Plan relating to private duty nursing services, Exhibit A, attached to and made a part of this Complaint.
13. Each State must designate a single state agency to administer and or supervise the administration of the State's Medicaid plan. 42 U.S.C. §1396a(a)(5). If other State agencies perform services for the Medicaid agency, the Medicaid agency must not delegate its authority to issue policies, rules, and regulations on program matters, 42 CFR §431.10(e)(l)(ii), and the other State agency must not have the authority to change or disapprove any administrative decision of the Medicaid agency or otherwise
3

Case: 1:00-cv-05391 Document #: 1 Filed: 09/01/00 Page 4 of 11 PageID #:4
v
substitute its judgment for that of the Medicaid agency with respect to the application of policies, rules and regulations issued by the Medicaid agency. 42 CFR §431.10(e)(3).
14. The single state Medicaid agency must be informed about the adherence oflocal agencies to the provisions of the State Plan. 42 CFR §435.903.
15. In Illinois, IDPA is the single state agency responsible for administering the Medicaid program.
16. Each State must establish certain requirements that States must follow when determining eligibility: States must establish standards and methods of determining eligibility that are consistent with the objectives of the Medicaid program and the rights of individuals under the Medicaid statute (42 CFR §435.901); the Medicaid agency must ensure that eligibility is determined in a manner that is consistent with recipients' best interests (42 CFR §435.902); the Medicaid agency must redetermine eligibility at the appropriate time when it has information about anticipated changes in a recipient's circumstances (42 CFR §435.916(c)(2)); and the agency must furnish Medicaid promptly without delay caused by the agency's administrative procedures and continue to furnish those services until the recipient is found to be ineligible (42 CFR §435.930).
17. States have the option of covering persons needing home and community based care services, if these persons would otherwise require institutional care that would be paid for by Medicaid. These services are provided under a range of waiver programs that are authorized under 42 U.S.C. §§1396a(a)(lO)(A)(ii)(VI), 1396n(b)-(e). Under this waiver authority, the Secretary ofHHS may grant waivers of otherwise applicable requirements, including for example financial eligibility requirements and service limitations. !d.
18. Illinois has included several home and community based care waiver programs in its Medicaid program that have been approved by the Secretary ofHHS. Under the waiver for technology
4

Case: 1:00-cv-05391 Document #: 1 Filed: 09/01/00 Page 5 of 11 PageID #:5
dependant children, Illinois provides medical assistance to children under age 21 who need exceptional medical care at home to avoid institutionalization waiving otherwise applicable financial eligibility criteria for the families of the children; under the Home Services waiver program, Illinois provides services that are not otherwise covered under the Medicaid program, including personal care and homemaker services, to enable disabled adults to remain in their homes.
19. Each State plan must provide that the state the agency will provide notice and an opportunity for an administrative hearing before services are reduced or terminated. 42 U.S.C. §1396a(a)(3), 42 CFR §431.200 et~. IV. Facts
20. Eric Radaszewski is 21 years old; his birth date is August 5, 1973. 21. Eric is disabled and has very low income. He is eligible for Medicaid. 22. On February II, 1992, Eric was diagnosed with medulloblastoma, a brain cancer. 23. On December 24, 1993, Eric suffered a mid brain stroke after he had undergone surgery, radiation and chemotherapy as treatment for the cancer. 24. The disease, stroke and the subsequent treatment have left Eric with a very low level of body and mental functioning. 25. It is the opinion of Eric's physician that Eric requires the services of a registered nurse, oneon-one, 24 hours per day in order to survive. 26. For the past five years, Eric has been cared at home by registered nurses 16 hours per day, with 336 additional hours per year of services from registered nurses to provide Eric's parents respite. The balance of his 24 hour per day care came from his parents, who were specially trained to provide the necessary monitoring and services to avoid medical crisis for Eric. 27. This care was paid for by the special Illinois Medicaid waiver program for technology
5

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v
dependant children under age 21 who are at risk of institutionalization paid for by Medicaid if their exceptional medical needs are not met at home. Parental income and resource deeming rules otherwise applicable to the Medicaid program are waived in this program.
28. This special Medicaid waiver program for technology dependant children is administered by the Illinois Division of Specialized Care for Children (DSCC) under a contract with IDPA. DSCC is a state agency.
29. As Eric's 21" birthday approached, Eric's mother was advised to contact the Office of Rehabilitation Services to obtain continued nursing services for Eric under the Home Services Progam, a Medicaid home-and-community-based waiver program for disabled adults. ORS is a division of the Department of Human Services, a state agency, and operates this waiver program under agreement with IDPA.
30. On February 18,2000, ORS issued a decision limiting Eric's eligibility for home based services based on a "service cost maximum" of $4,593 per month.
31. This service cost maximum amount has reduced funding for Eric's skilled registered nursing services to the equivalent of five hours per day.
32. No state agency sent Eric or his guardian notice that his nursing services would be reduced effective August 3, 2000, or offering continued nursing services at the unreduced amount pending an administrative appeal.
33. Eric's parents filed an administrative appeal on the ORS decision limiting Eric's services to $4,593 per month, and an administrative hearing was held by an IDPA hearing officer on July 25, 2000.
34. At this hearing, Eric's treating physician, Janina Badowska, M..D. testified that it in her medical opinion, Eric requires 24 hour one-on-one skilled nursing care from registered nurses and that the level of care offered by the ORS service cost maximum would leave Eric at great medical risk. She further
6

Case: 1:00-cv-05391 Document #: 1 Filed: 09/01/00 Page 7 of 11 PageID #:7
testified that Eric's needs could not be met by staffing levels at a skilled nursing facility. 35. At the hearing Eric's counsel argued that the service cost maximum limitation imposed by
the ORS decision and the failure to provide Eric the private duty nursing services at the level he requires violates the federal Medicaid statute and regulations.
36. While the administrative appeal was pending, Eric's nursing services were reduced to the equivalent of five hours per day on August 4, 2000.
37. On August 18,2000, Defendant Ann Patla, as Director of!DPA, issued the final administrative decision, affirming the ORS decision limiting funding of Eric's services to $4,593 per month. Defendant based this decision on the determination that Eric was challenging the legality ofDHS or ORS rules and that such a challenge must be brought in another forum.
38. At no time prior to or since the reduction in nursing services provided to Eric, has IDPA or any of its agents determined Eric's eligibility for private duty nursing services or advise Eric's parents of private duty nursing coverage available under the Medicaid program.
39. Defendant's decision and the reduction in hours of nursing services has caused and will continue to cause Eric irreparable injury for which there is not adequate remedy at law. V. Claims
40. Reducing Eric' hours of private duty nursing services to the level of five hours daily when he requires 24 hours daily violates 42 U.S.C. §1396a(a)(IO)and 42 CFR §§440.230 and 440.80.
41. Reducing Eric's hours of nursing services without determining his ineligibility for private duty nursing under the State Medicaid plan violates the regulatory scheme of 42 CFR Part 435 and 42 U.S.C. §1396a(a)(5).
42. Reducing Eric's hours of nursing services without adequate advance notice and without an opportunity to continue services without reduction pending the outcome of an administrative appeal violates
7

Case: 1:00-cv-05391 Document #: 1 Filed: 09/01/00 Page 8 of 11 PageID #:8

·...__;

'0

42 U.S.C. § 1396a(a)(3) and 42 C.F.R. §43 1.200 et §ffi. and the Due Process clause of the Fourteenth

Amendment to the Constitution.

43. Reducing Eric's hours of nursing service by affirming the ORS decision that Eric is entitled

only to $4,593 in nursing services per month while refusing to address Eric's argument that the reduction in

nursing services contravenes federal Medicaid requirements violates 42 U.S.C. §1396a(a)(3), 42 CFR

§431.200 et §ffi. and Eric's right to due process.

44. Reducing Eric's hours of nursing services without advising his guardian about the coverage

for private duty nursing services under the Medicaid program or how to obtain those services violates

Eric's right to due process.

VI. Prayer for Relief

Plaintiff prays for the following relief:

A. That this Court assume jurisdiction of this cause;

B. That this Court enter a declaratory judgment that defendant's reduction of the

hours of nursing services provided to Eric Radaszewski violates 42 U.S.C. §1396a

and its implementing regulations as outlined above as well as the requirements of

the due process clause of the Fourteenth Amendment to the United States

Constitution;

C. That this Court enter a preliminary and permanent injunction enjoining defendant

from reducing Eric Radaszewski's hours of nursing services;

D. That this Court award plaintiff her costs and fees.

E.

That this Court grant such additional relief that it deems equitable and just.

8

Case: 1:00-cv-05391 Document #: 1 Filed: 09/01/00 Page 9 of 11 PageID #:9
Respectfully submitted,
Eliot Abarbanel One of the Attorneys for Plaintiff PRAIRIE STATE LEGAL SERVICES, INC. Eliot Abarbanel Sarah Megan Bernard Shapiro Linda Severin 350 S. Schmale Road Suite 150 Carol Stream, IL 60188 630-690-2130
9

Case: 1:00-cv-05391 Document #: 1 Filed: 09/01/00 Page 10 of 11 PageID #:10

'\..__.,'

Revision: HCFA-PM-91~ AUGUST 1991

(BPD)

State/Territory:

ll.T.IIIOIS

\._) ATTACHMENT 3.1-A Page Ja OMB No.: 0938-

AND

REMEDIAL

AMOUNT, CARE AND

DURATION, SERVICES

PRAONDVIDSECDOPETOOTFHEMECDAICTAELGORICALLY

NEEDY

d.

Physical therapy, audiology services

occupational provided by

rehabilitation facility.

athehormapeyh, eoarlthspeagecehncpyaothromloegdyicaanld

I X! Provided: L_/ No limitations
L__l Not provided.

L!/With limitations•

8.

Private duty nursing services.

{X I Provided: L_/ No limitations L__l NOt provided,

L!/with limitations•

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Supersedes TN !fa.

'Approval Date .

;;;l$'-'?Cl- Effective ·nAto! 10-i-91

HCFA ID: 7986E

-....-

Attachment A, p,l

TOTAL P.02

,.

Case: 1:00-cv-05391. - Do- cum- en· t #~ : 1~ Fil~ ed:~ 09~ /01~ /00~ P- age- 1- 1 o- f 11- P- ag- eID- #:- 11 ------

• AUG-23-2000 12:58

--,.,.. ------- P.0l/02

Attachment 3.1-A

Page 5

. State ILLINOIS

7. HOME HEALTH SERVICES

a. b and c.

Services are provided on a short-term, intermittent basis to facilitate clients transitioning from a more acute level of care. Services must be provided only on direct order of physician, and require prior approval unless
client is eligible for these benefits under Medicare.

Limits on services or treatments are not applicable to EPSDT (Healthy Kids)
clients. All services or treatments which are medically necessary to correct or lessen health problems detected or suspected by the screening process must be provided to individuals under age 21.

Services available only when provided by a Home Health Age~cy, on direct order of physician, and with prior approval unless client is eligible for these benefits under Medicare.
Limits on services or treatments are not applicable to EPSDT (Healthy Kids)
clients. All services or treatments which are medically necessary to correct or lessen health problems detected or suspected by the screening process must be provided to individuals under age 21.
8. PRIVATE DUTY NURSING SERVICES
Provided only when recommended by the physician. Requires prior approval. Services cannot be covered if provided by a relative.
Limits on services or treatments are not applicable to EPSDT (Healthy Kids) clients. All services or treatments which are medically necessary to correct or lessen health problems detected or suspected by the screening process must be provided to individuals under age 21.

_2.._-._( TN# _ _z9.cl-::.~l...<2~- APPROVAL DATE

-_Q_,_I,___ EFFECTIVE DATE _7t..:.-:o<l=9"-l_ _

SUPERSEDES

TN fl

90--4

Attachment A, p. 2

 </s> 2 Fed.Appx. 565 This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Seventh Circuit Rule 32.1.
(Find CTA7 Rule 32.1) United States Court of Appeals,
Seventh Circuit.
Donna RADASZEWSKI, Guardian for Eric Radaszewski Plaintiff–Appellant, v.
Ann PATLA, Director, Illinois Department of Public Aid, Defendant–Appellee.
No. 00–3929. |
Argued Jan. 26, 2001. |
Decided March 8, 2001.
Claimant brought an action for injunctive and declaratory relief against the director of the state department of public aid after the director reduced the private duty nursing care for claimant’s son. The United States District Court for the Northern District of Illinois, John F. Grady, J., entered a temporary restraining order and denied claimant’s motion for a preliminary injunction. Claimant appealed. The Court of Appeals held that claimant’s cause of action was moot.
Appeal dismissed; judgment vacated and remanded.
West Headnotes (1)
[1] Federal Courts Environment and health
Claimant’s cause of action which sought an injunction to prohibit the director of the state department of public aid from reducing her son’s private duty nursing care was moot; legislative amendment to state Medicaid Plan eliminated private duty nursing care as a service provided under the plan.

2 Cases that cite this headnote
*566 Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 C 5391. John F. Grady, Judge.
Before BAUER, Hon. MANION, and ROVNER, Circuit Judges.
ORDER
**1 Plaintiff filed suit under 42 U.S.C. § 1983 seeking declaratory and injunctive relief against defendant for reducing the private duty nursing care provided to her son, thereby violating his due process rights and the Medicaid statute, 42 U.S.C. § 1396 et seq. The district court entered a temporary restraining order, enjoining defendant from reducing the nursing care. The district court subsequently denied plaintiff’s motion for a preliminary injunction, concluding that it lacked subjectmatter jurisdiction because plaintiff’s claims did not state a violation of the Medicaid statute or the Constitution. Plaintiff appealed.
During oral argument before this Court, defendant’s counsel notified us that a proposed amendment to the Illinois State Medicaid Plan had been submitted to the Health Care Financing Administration of the United States Department of Health and Human Services for approval. The amendment proposed to wholly eliminate private duty nursing care as a service provided under the state plan. Therefore, at the close of oral argument, we requested that the parties apprise us of any change in the status of this case.
On February 9th, defendant’s counsel notified us that the amendment had been approved on February 2nd. In light of this change, on February 21, 2001, we ordered both parties to file memoranda arguing what effect the amendment to the state plan had on this pending case. Both parties responded that the amendment renders this case moot. We agree.
Accordingly, IT IS ORDERED that this case is DISMISSED as moot, so we hereby VACATE the district
1

court’s judgment on the merits and REMAND for the district court to dismiss all previous orders entered in this case as moot. See DiGiore v. Ryan, 172 F.3d 454, 466 (7th Cir.1999).

All Citations 2 Fed.Appx. 565, 2001 WL 242169

2

 </s> Case: 1:01-cv-9551 As of: 10/26/2017 09:49 AM CDT 1 of 14
CASREF,SCHENKIER,TERMED
United States District Court Northern District of Illinois − CM/ECF LIVE, Ver 6.1.1.2 (Chicago)
CIVIL DOCKET FOR CASE #: 1:01−cv−09551

Radaszewski v. Garner, et al Assigned to: Hon. John W. Darrah Demand: $0 Case in other court: Cook Cnty IL Cir Ct, 00CH 1475 Cause: 28:1441 Petition for Removal− Civil Rights Act
Plaintiff

Date Filed: 12/14/2001 Date Terminated: 03/26/2008 Jury Demand: None Nature of Suit: 444 Civil Rights: Welfare (DISCONTINUED AFTER 1/1/2012) Jurisdiction: Federal Question

Donna Radaszewski Guardian on behalf of Eric Radaszewski

represented by Eliot W. Abarbanel Zamparo Law Group, P.C. 2300 Barrington Road Suite 140 Hoffman Estates, IL 60169−2090 224−875−3202 Email: eliot@zamparolaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Bernard H. Shapiro Prairie State Legal Service, Inc. 303 N. Main Street Suite #600 Rockford, IL 61113 (815) 965−2134 Email: bshapiro@pslegal.org ATTORNEY TO BE NOTICED

Sarah Catherine Megan Prairie State Legal Services 201 Houston Street Suite 200 Batavia, IL 60510 (630) 232−9402 Email: smegan@pslegal.org ATTORNEY TO BE NOTICED

V.
Defendant
Jackie Garner Director of Illinois Department of Public Aid

represented by James C. O'Connell
512 West Elm Avenue La Grange, IL 60525−2232
(708) 482−7373 Email: ardc512@w9wu.com TERMINATED: 10/25/2004 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Samuel Gange Illinois Attorney General's Office 160 North LaSalle Street Suite N−1000 Chicago, IL 60601 (312)793−2380 Email: Christopher.Gange@illinois.gov

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ATTORNEY TO BE NOTICED

David Adler Illinois Attorney General's Office 160 North LaSalle Street Suite N−1000 Chicago, IL 60601 (312)793−2380 TERMINATED: 10/25/2004

John E. Huston Illinois Attorney General's Office 160 North LaSalle Street Suite N−1000 Chicago, IL 60601 (312)793−2380 Email: John.Huston@illinois.gov ATTORNEY TO BE NOTICED

Karen Elaine Konieczny Illinois Attorney General's Office 160 North LaSalle Street Suite N−1000 Chicago, IL 60601 (312)793−2380 Email: karen.konieczny@illinois.gov ATTORNEY TO BE NOTICED

Defendant Barry S Maram

represented by Karen Elaine Konieczny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John E. Huston (See above for address) ATTORNEY TO BE NOTICED

V. Respondent Cindy Sabo deponent Theresa Dederer
deponent Barbara Ginder

represented by John E. Huston (See above for address) ATTORNEY TO BE NOTICED
represented by Karen Elaine Konieczny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Samuel Gange (See above for address) ATTORNEY TO BE NOTICED
John E. Huston (See above for address) ATTORNEY TO BE NOTICED
represented by Karen Elaine Konieczny (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Samuel Gange (See above for address) ATTORNEY TO BE NOTICED

John E. Huston (See above for address) ATTORNEY TO BE NOTICED

deponent Canda Scott

represented by Karen Elaine Konieczny (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Samuel Gange (See above for address) ATTORNEY TO BE NOTICED

John E. Huston (See above for address) ATTORNEY TO BE NOTICED

Date Filed 12/14/2001
12/14/2001 12/17/2001 12/20/2001 01/09/2002 01/14/2002 01/30/2002 01/30/2002
02/20/2002 03/07/2002 04/03/2002

# Docket Text
1 NOTICE OF REMOVAL by defendant from the Circuit Court of the Eighteenth Judical Circuit, DuPage County, IL with copy of summons and complaint, case no. 00 CH 1475 − Civil cover sheet − Appearance(s) of James C. O'Connell, David Adler, Christopher Samuel Gange as attorney(s) for defendant; Affiavit of David Adler ( Documents: 1−1 through 1−3) (hp) (Entered: 12/17/2001)
RECEIPT regarding payment of filing fee paid; on 12/14/01 in the amount of $150.00, receipt # 107416. (hp) (Entered: 12/17/2001)
MAILED Rule 77(d) letter to Eliot W. Abarbanel regarding notice of removal with appearance form. (hp) (Entered: 12/17/2001)
SCHEDULE set on 12/20/01 by Hon. John W. Darrah : Status hearing set to 9:00 1/30/02 . Mailed notice (ldg) (Entered: 12/20/2001)
2 ATTORNEY APPEARANCE for plaintiff by Bernard H. Shapiro, Sarah Catherine Megan and Eliot Abarbanel (yap) (Entered: 01/10/2002)
4 MOTION by plaintiff to remand this proceeding to the Circuit Court of the Eighteenth Judicial Circuit, Dupage County, Illinois (Attachment); Notice (yap) (Entered: 02/01/2002)
3 MEMORANDUM by plaintiff in support of his motion for remand (Attachments) (yap) (Entered: 01/31/2002)
5 MINUTE ORDER of 1/30/02 by Hon. John W. Darrah : Status hearing held and continued to 4/4/02 at 9:00 a.m. Defendant's response to plaintiff's motion to remand this proceeding to the Circuit Court of the Eighteenth Judicial Circuit, Dupage County, Illinois [4−1] to be filed by 2/20/02. Plaintiff's reply to be filed by 3/6/02. Mailed notice (yap) (Entered: 02/01/2002)
6 MEMORANDUM by defendant in opposition to motion to remand this proceeding to the Circuit Court of the Eighteenth Judicial Circuit, Dupage County, Illinois [4−1] (yap) (Entered: 02/21/2002)
7 REPLY brief by plaintiff to motion for remand [4−1] (yap) (Entered: 03/08/2002)
SCHEDULE set on 4/3/02 by Hon. John W. Darrah : Status hearing set for 4/4/02 is stricken and reset to 9:00 4/18/02 . Mailed notice (ldg) (Entered: 04/03/2002)

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04/30/2002
04/30/2002 05/20/2002 05/21/2002
06/18/2002 07/09/2002 07/12/2002 08/05/2002 08/06/2002 08/13/2002 09/10/2002
10/09/2002 10/09/2002 10/09/2002 10/10/2002 10/11/2002 10/11/2002 10/16/2002
10/22/2002

8 MINUTE ORDER of 4/30/02 by Hon. John W. Darrah : Status hearing held. Plaintiff's motion to remand this proceeding to the Circuit Court of the Eighteenth Judicial Circuit, Dupage County, Illinois [4−1] is granted in part and denied in part. Plaintiff's state law claims, counts I−V are remanded to state court. This court retains juridiction over counts VI and VII. Entered Memorandum Opinion and Order. Mailed notice (yap) (Entered: 05/01/2002)
9 MINUTE ORDER of 4/30/02 by Hon. John W. Darrah : Status hearing is set for 5/21/02 at 9:00 a.m. Defendant is given leave to file a motion for judgment of the pleadings on or before 5/21/02. Mailed notice (yap) (Entered: 05/06/2002)
10 MOTION by defendant for judgment on the pleadings Memorandum in Support (Attachments); Notice (yap) (Entered: 05/21/2002)
11 MINUTE ORDER of 5/21/02 by Hon. John W. Darrah : Status hearing held and continued to 8/13/02 at 9:00 a.m. Plaintiff's response to defendant's motion for judgment on the pleadings [10−1] to be filed by 6/18/02. Defendant's reply to be filed by 7/9/02. Mailed notice (yap) (Entered: 05/22/2002)
12 RESPONSE by plaintiff to defendant's motion for judgment on the pleadings [10−1]. (gcy) (Entered: 06/19/2002)
13 REPLY memorandum by defendant in support of her motion for judgment on the pleadings [10−1] (Attachments); Notice (yap) Modified on 07/10/2002 (Entered: 07/10/2002)
SCHEDULE set on 7/12/02 by Hon. John W. Darrah : Status hearing set for 8/13/02 is stricken and reset to 2:00 8/12/02 . Mailed notice (ldg) (Entered: 07/12/2002)
15 MOTION by plaintiff to defer ruling on defendant's motion for judgment on the pleadings ; Notice (yap) Modified on 09/11/2002 (Entered: 09/11/2002)
14 OBJECTIONS by defendant to plaintiff's motion to defer ruling on defendant's motion for judgment on the pleadings (Attachments); Notice. (gcy) (Entered: 08/07/2002)
SCHEDULE set on 8/13/02 by Hon. John W. Darrah : Status hearing set for 8/12/02 is stricken and reset to 9:00 9/10/02 . Mailed notice (ldg) (Entered: 08/13/2002)
16 MINUTE ORDER of 9/10/02 by Hon. John W. Darrah: Plaintiff's motion to defer ruling on defendant's motion for judgment on the pleadings [15−1] is denied. Defendant's motion for judgment on the pleadings [10−1] is granted. Entered Memorandum Opinion and Order. Mailed notice (yap) (Entered: 09/11/2002)
17 NOTICE OF APPEAL by plaintiff from motion minute order [16−2], from Scheduling order Entered Memorandum Opinion and Order. [16−1] ( IFP Pending) (dj) (Entered: 10/10/2002)
18 DOCKETING STATEMENT by plaintiff regarding appeal [17−1] . (dj) (Entered: 10/10/2002)
19 MOTION by plaintiff for leave to appeal in forma pauperis (Attachment); (dj) (Entered: 10/10/2002)
TRANSMITTED to the 7th Circuit the short record on appeal [17−1] . Mailed notice to all counsel. (dj) (Entered: 10/10/2002)
20 MINUTE ORDER of 10/11/02 by Hon. John W. Darrah : Motion to appeal in forma pauperis is granted. [19−1] Mailed notice (eav) (Entered: 10/15/2002)
21 ACKNOWLEDGEMENT of receipt of short record on appeal [17−1] USCA 02−3657. (cem) (Entered: 10/15/2002)
22 MINUTE ORDER of 10/16/02 by Hon. John W. Darrah : Entered Memorandum Opinion and Order. Plaintiff's motion to remand is granted in part and denied in part. Plaintiff's state law claims, counts I−V are remanded to state court. This court retained jurisdiction over counts VI and VII. Mailed notice (yap) (Entered: 10/21/2002)
23 SEVENTH CIRCUIT transcript information sheet by plaintiff (ntf) (Entered: 10/23/2002)

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10/23/2002 01/31/2003 02/05/2003 09/09/2004 10/21/2004 10/25/2004
10/27/2004 10/27/2004 10/27/2004 10/27/2004 11/01/2004 11/01/2004 11/01/2004 11/16/2004 12/09/2004 01/04/2005 02/15/2005 02/23/2005 04/27/2005

TRANSMITTED to the 7th Circuit the long record on appeal no. 02−3657 consisting of 1 volume of pleadings. [17−1] Mailed notice to all counsel. (dj) (Entered: 10/23/2002)
SCHEDULE set on 1/31/03 by Hon. John W. Darrah : Status hearing set to 9:00 2/11/03 . Mailed notice (ldg) (Entered: 01/31/2003)
SCHEDULE set on 2/5/03 by Hon. John W. Darrah : Status hearing set for 2/11/03 is stricken. Mailed notice (ldg) (Entered: 02/05/2003)
SCHEDULE set on 9/9/04 by Hon. John W. Darrah : Status hearing set for 10/27/04 at 9:00 a.m. Mailed notice (maf) (Entered: 09/09/2004)
24 MOTION by defendant's attorney to substitute counsel for the director of the Illinois Department of Public Aid ; Notice (las) (Entered: 10/25/2004)
25 MINUTE ORDER of 10/25/04 by Hon. John W. Darrah : Defendant Barry S. Miram's motion to substitute counsel for the director of the Illinois Department of Public Aid is granted [24−1]. Barry S. Maram, in his official capacity as Director of the Illinois Department of Public Aid, is substituted as the successor in office to defendant Jackie Garner; Assistant General Karen Konieczny and Senior Assistant Attorney General John E. Huston are substituted in as additional counsel for defendant; and the appearances of James C. O'Connell and David Adler as attorneys for the Director of the Illinois Department of Public Aid are withdrawn. Mailed notice (las) (Entered: 10/25/2004)
SCHEDULE set on 10/27/04 by Hon. Ian H. Levin : Settlement conference set for 1:30 12/15/04 in courtroom 1342. Client representatives with settlement authority to be present. Mailed notice (smm) (Entered: 10/27/2004)
26 REFERRAL ORDER: Case referred to Hon. Ian H. Levin for a settlement conference Mailed notice. (maf) (Entered: 10/27/2004)
27 MINUTE ORDER of 10/27/04 by Hon. John W. Darrah : Status hearing held and continued to 1/4/05 at 9:00 a.m. This case is referred to Magistrate Judge Levin for a settlement conference. Mailed notice (rbf) (Entered: 10/28/2004)
28 ATTORNEY APPEARANCE for defendant Barry S Maram by Karen Konieczny, John E Huston. (rbf) (Entered: 10/28/2004)
29 LETTER from the 7th Circuit returning the record on appeal no. 02−3657 consisting of one volume of pleadings (las) (Entered: 11/02/2004)
30 OPINION from the 7th Circuit: Argued 9/8/03; Decided 9/8/04. ( 02−3657) (las) (Entered: 11/02/2004)
31 CERTIFIED COPY of order from the 7th Circuit: Reversing and remanding the Decision of the District Court [Appeal [17−1] . ( 02−3657) (las) (Entered: 11/02/2004)
SCHEDULE set on 11/16/04 by Hon. John W. Darrah : Status hearing set for 1/4/05 is re−set to 1/18/05 at 9:00 a.m. Mailed notice (maf) (Entered: 11/16/2004)
SCHEDULE set on 12/9/04 by Hon. Ian H. Levin : Settlement conference of 12/15/04 is stricken and reset for 1:30 2/23/04 in courtroom 1342 . Mailed notice (smm) (Entered: 12/10/2004)
SCHEDULE set on 1/4/05 by Hon. John W. Darrah : Status hearing set for 1/18/05 is re−set to 3/3/05 at 9:00 a.m. Mailed notice (maf) (Entered: 01/04/2005)
32 MINUTE entry before Judge Ian H. Levin : To Foster settlement negotiations on joint motion regarding settlement conference reset from 02/23/05 to 4/27/2005 at 01:30 PM. (jlj, ) (Entered: 02/15/2005)
33 MINUTE entry before Judge John W. Darrah : In light of the parties settlement conference before the Magistrate Judge, the 3/3/05 status hearing is re−set to 5/17/05 at 9:00 a.m. Mailed notice (las, ) (Entered: 02/24/2005)
34 MINUTE entry before Judge Ian H. Levin : Settlement conference held on 4/27/2005 Status hearing set for 5/4/2005 at 11:00 AM to report on settlement. Mailed notice (jlj, ) (Entered: 04/27/2005)

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05/04/2005 05/09/2005 06/06/2005 06/10/2005 06/16/2005 06/27/2005 06/27/2005 07/27/2005 09/06/2005 09/16/2005 09/23/2005
09/23/2005 09/27/2005 11/03/2005 12/06/2005
01/10/2006 02/10/2006 02/23/2006 02/23/2006

35 MINUTE entry before Judge Ian H. Levin: Status hearing on settlement held on 5/4/2005 and continued to 6/6/2005 at 11:00 A.M. for report on settlement. Mailed notice by judge's staff. (srb,) (Entered: 05/04/2005)
36 MINUTE entry before Judge John W. Darrah : Status hearing set for 5/17/05 is re−set to 6/30/05 at 09:00 AM. Mailed notice (maf, ) (Entered: 05/09/2005)
37 MINUTE entry before Judge Ian H. Levin : Status hearing on settlement of 6/6/05 is stricken and reset to 6/27/2005 at 1:00 PM. Mailed notice (smm, ) (Entered: 06/07/2005)
38 MINUTE entry before Judge Ian H. Levin : Status hearing on settlement set for 6/27/2005 at 11:00 AM. Mailed notice (smm, ) (Entered: 06/10/2005)
39 MINUTE entry before Judge John W. Darrah : Status hearing scheduled for 6/30/05 is stricken and reset to 6/28/2005, at 9:00 AM. Mailed notice (eav, ) (Entered: 06/17/2005)
40 MINUTE entry before Judge John W. Darrah : Status hearing set for 6/28/05 is re−set to 9/7/05 at 09:00 AM. Mailed notice (maf, ) (Entered: 06/27/2005)
41 MINUTE entry before Judge Ian H. Levin : Magistrate Judge Status hearing held on 6/27/2005. Status hearing set for 7/27/2005 at 11:00 AM. Mailed notice (smm, ) (Entered: 07/06/2005)
42 MINUTE entry before Judge Ian H. Levin : Magistrate Judge Status hearing held on 7/27/2005. Status hearing on settlement set for 9/16/2005 at 11:00 AM. Mailed notice (smm, ) (Entered: 07/27/2005)
43 MINUTE entry before Judge John W. Darrah : Status hearing set for 9/7/05 is re−set to 9/29/05 at 09:00 AM. Mailed notice (maf, ) (Entered: 09/06/2005)
44 MINUTE entry before Judge Ian H. Levin : Magistrate Judge Status hearing held on 9/16/2005. Status hearing set for 9/23/2005 at 11:00 AM. Mailed notice (smm, ) (Entered: 09/16/2005)
45 MINUTE entry before Judge Ian H. Levin : Magistrate Judge Status hearing held on 9/23/2005. Case settled. All matters relating to the referral of this action having been resolved, the case is returned to the assigned judge. Judge Ian H. Levin no longer referred to the case. Mailed notice (smm, ) (Entered: 09/23/2005)
46 MINUTE entry before Judge John W. Darrah : Status hearing set for 09/29/05 is reset to 10/27/2005 at 09:00 AM. Parties are engaged in settlement. Mailed notice (ar, ) (Entered: 09/27/2005)
47 MINUTE entry before Judge John W. Darrah : Status hearing set for 10/27/05 is re−set to 11/3/2005 at 09:00 AM. Mailed notice (ar, ) (Entered: 09/28/2005)
48 MINUTE entry before Judge John W. Darrah : Status hearing held and continued to 12/6/05 at 9:00 a..m. for either presentation of dismissal order or scheduling for trial. (ntf, ) (Entered: 11/04/2005)
49 MINUTE entry before Judge John W. Darrah : Status hearing held and continued to 03/29/2006 at 09:00 AM. Parties have advised the Court that the case has settled. Plaintiff's opening brief regarding enforcement to be filed by 01/10/06. Response by 02/10/06. Reply by 02/24/06. (ar, ) (Entered: 12/06/2005)
50 MEMORANDUM by Donna Radaszewski, Donna Radaszewski (Megan, Sarah) (Entered: 01/10/2006)
51 RESPONSE by Defendant Barry S Maram to Plaintiff's Memorandum Regarding Enforcement of Settlement Agreement (Huston, John) (Entered: 02/10/2006)
52 MOTION by Plaintiff Donna Radaszewski to seal document (Megan, Sarah) (Entered: 02/23/2006)
53 NOTICE of Motion by Sarah Catherine Megan for presentment of motion to seal document 52 before Honorable John W. Darrah on 2/28/2006 at 09:00 AM. (Megan, Sarah) (Entered: 02/23/2006)

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02/24/2006 02/28/2006
03/29/2006
03/29/2006 04/19/2006
05/17/2006 05/17/2006 05/22/2006 06/30/2006 08/17/2006 08/17/2006 08/17/2006 08/29/2006 11/10/2006 11/10/2006 11/10/2006 11/16/2006 11/22/2006 11/22/2006

54 REPLY Plaintiff's Reply Memorandum Concerning Enforcement of the Settlement Agreement (Megan, Sarah) (Entered: 02/24/2006)
55 MINUTE entry before Judge John W. Darrah : Plaintiff's motion to for restricting order 52 is granted. The document will be delivered to chambers for the Judge's view only, it will not be filed with the Clerk of Court and it will not be a part of the public record. (ar, ) (Entered: 03/01/2006)
56 MINUTE entry before Judge John W. Darrah: For the reasons stated in the attached memorandum opinion and order, there is no final enforceable settlement agreement between the parties. There presently is no other issue or question of law raised by either of the parties in the briefs upon which this court is empowered to render an opinion. Enter Memorandum Opinion and Order. Status hearing set for 4/19/2006 at 09:00 AM. (vmj, ) (Entered: 03/31/2006)
57 MEMORANDUM Opinion and Order Signed by Judge John W. Darrah on 3/29/2006(vmj, ) (Entered: 03/31/2006)
58 MINUTE entry before Judge John W. Darrah : Status hearing held. Discovery ordered closed on 04/20/2007. Pretrial Conference set for 09/06/2007 at 01:30 PM. Jury Trial set for 09/10/2007 at 09:00 AM. Mailed notice. (ar, ) Modified on 4/20/2006 (ar, ). (Entered: 04/20/2006)
59 MOTION by Defendant Barry S MaramMotion for Entry of Defendant's Prroposed Scheduling Order (Huston, John) (Entered: 05/17/2006)
60 NOTICE of Motion by John E. Huston for presentment of motion for miscellaneous relief 59 before Honorable John W. Darrah on 5/24/2006 at 09:00 AM. (Huston, John) (Entered: 05/17/2006)
61 RESPONSE to Defendant's Motion for Entry of Defendant's Proposed Scheduling Order (Attachments: # 1 Exhibit Form 35 Report of Parties' Planning Meeting)(Megan, Sarah) (Entered: 05/22/2006)
62 AFFIRMATIVE DEFENSES and AMENDED ANSWER to Complaint by Barry S Maram(Huston, John) (Entered: 06/30/2006)
63 MOTION by Defendant Barry S Maram for protective order Governing Discovery Material (Huston, John) (Entered: 08/17/2006)
64 NOTICE of Motion by John E. Huston for presentment of motion for protective order 63 before Honorable John W. Darrah on 8/29/2006 at 09:00 AM. (Huston, John) (Entered: 08/17/2006)
65 RESPONSE to Defendant's Motion for Entry of Protective Order Governing Discovery Material (Megan, Sarah) (Entered: 08/17/2006)
66 MINUTE entry before Judge John W. Darrah : Defendant's motion for entry of a protective order is 63 is denied. (ar, ) (Entered: 08/30/2006)
67 MOTION by Plaintiff Donna Radaszewski to compel Compliance With Discovery (Megan, Sarah) (Entered: 11/10/2006)
68 MOTION by Plaintiff Donna Radaszewski to compel Compliance With Discovery (Attachments: # 1 Memorandum in Support of Motion to Compel# 2 Appendix)(Megan, Sarah) (Entered: 11/10/2006)
69 NOTICE of Motion by Sarah Catherine Megan for presentment of motion to compel 68 before Honorable John W. Darrah on 11/16/2006 at 09:00 AM. (Megan, Sarah) (Entered: 11/10/2006)
70 MINUTE entry before Judge John W. Darrah : Plaintiff's motion to compel compliance with discovery 68 is granted. Defendant is ordered to produce all outstanding materials by 11/30/06. (cdy, ) (Entered: 11/17/2006)
71 MOTION by Defendant Barry S Maram to compel Deposition of Plaintiff Donna Radaszewski (Huston, John) (Entered: 11/22/2006)
72 NOTICE of Motion by John E. Huston for presentment of motion to compel 71 before Honorable John W. Darrah on 11/28/2006 at 09:00 AM. (Huston, John) (Entered:

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11/27/2006 12/07/2006 12/07/2006 12/07/2006 12/07/2006 12/12/2006 12/12/2006 12/14/2006
12/18/2006 12/19/2006 01/04/2007 01/05/2007 01/05/2007 01/05/2007 01/05/2007 01/05/2007 01/05/2007

11/22/2006)
73 MINUTE entry before Judge John W. Darrah : Defendant's motion to compel the deposition of plaintiff Donna Radaszewski is voluntarily withdrawn 71 . (ar, ) (Entered: 11/28/2006)
74 MOTION by Defendant Barry S Maram for sanctions for a Party's Failure to Appear for a Properly Noticed Deposition etc (Huston, John) (Entered: 12/07/2006)
75 NOTICE of Motion by John E. Huston for presentment of motion for sanctions 74 before Honorable John W. Darrah on 12/14/2006 at 09:00 AM. (Huston, John) (Entered: 12/07/2006)
76 MOTION by Plaintiff Donna Radaszewski for extension of time to Complete Fact Discovery (Megan, Sarah) (Entered: 12/07/2006)
77 NOTICE of Motion by Sarah Catherine Megan for presentment of motion for extension of time 76 before Honorable John W. Darrah on 12/14/2006 at 09:00 AM. (Megan, Sarah) (Entered: 12/07/2006)
78 RESPONSE by Donna Radaszewski in Opposition to MOTION by Defendant Barry S Maram for sanctions for a Party's Failure to Appear for a Properly Noticed Deposition etc 74 (Attachments: # 1 # 2)(Abarbanel, Eliot) (Entered: 12/12/2006)
79 OBJECTIONS by Barry S Maram to MOTION by Plaintiff Donna Radaszewski for extension of time to Complete Fact Discovery 76 (Huston, John) (Entered: 12/12/2006)
80 MINUTE entry before Judge John W. Darrah : Defendant's motion for sanctions 74 is denied. However, plaintiff is ordered to complete a deposition by 1/16/07. Plaintiff's motion for an enlargement of time to complete fact discovery 76 is granted. Fact discovery is extended to 01/26/07. All future discovery disputes and discovery motions are referred to the Magistrate Judge. (ar, ) (Entered: 12/15/2006)
82 EXECUTIVE COMMITTEE ORDER:Case referred to Magistrate Judge Sidney I. Schenkier for discovery supervision. Signed by Executive Committee on 12/18/06. (cem, ) (Entered: 12/20/2006)
81 MINUTE entry before Judge Sidney I. Schenkier : Status hearing set for 1/4/2007 at 09:00 AM.Mailed notice (jms, ) (Entered: 12/19/2006)
83 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held and continued to 1/30/2007 at 09:00 AM.Mailed notice (mmm, ) (Entered: 01/04/2007)
84 MOTION to quash Subpoena to Non−Party Theresa Dederer (Attachments: # 1 Exhibit A and B# 2 Exhibit C, Part 1# 3 Exhibit C, Part 2# 4 Exhibit C, Part 3)(Huston, John) (Entered: 01/05/2007)
85 NOTICE of Motion by John E. Huston for presentment of motion to quash 84 before Honorable Sidney I. Schenkier on 1/11/2007 at 08:30 AM. (Huston, John) (Entered: 01/05/2007)
86 MOTION to quash Subpoena to Non−Party Barbara Ginder (Attachments: # 1 Exhibit A and B# 2 Exhibit C, Part 1# 3 Exhibit C, Part 2# 4 Exhibit C, Part 3)(Huston, John) (Entered: 01/05/2007)
87 NOTICE of Motion by John E. Huston for presentment of motion to quash 86 before Honorable Sidney I. Schenkier on 1/11/2007 at 08:30 AM. (Huston, John) (Entered: 01/05/2007)
88 MOTION to quash Subpoena to Non−Party Canda Scott (Attachments: # 1 Exhibit A and B# 2 Exhibit C, Part 1# 3 Exhibit C, Part 2# 4 Exhibit C, Part 3)(Huston, John) (Entered: 01/05/2007)
89 NOTICE of Motion by John E. Huston for presentment of motion to quash 88 before Honorable Sidney I. Schenkier on 1/11/2007 at 08:30 AM. (Huston, John) (Entered: 01/05/2007)

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01/09/2007 01/10/2007 01/10/2007 01/10/2007 01/10/2007 01/10/2007 01/10/2007 01/10/2007 01/10/2007 01/10/2007 01/10/2007 01/10/2007 01/11/2007
01/30/2007
03/09/2007 03/09/2007

90 RESPONSE by Donna Radaszewskiin Opposition to MOTION to quash Subpoena to Non−Party Barbara Ginder 86 , MOTION to quash Subpoena to Non−Party Theresa Dederer 84 , MOTION to quash Subpoena to Non−Party Canda Scott 88 (Abarbanel, Eliot) (Entered: 01/09/2007)
91 ATTORNEY Appearance for deponent Barbara Ginder by Karen Elaine Konieczny (Konieczny, Karen) (Entered: 01/10/2007)
92 ATTORNEY Appearance for deponent Barbara Ginder by Christopher Samuel Gange (Gange, Christopher) (Entered: 01/10/2007)
93 ATTORNEY Appearance for deponent Barbara Ginder by John E. Huston (Huston, John) (Entered: 01/10/2007)
94 ATTORNEY Appearance for deponent Canda Scott by Christopher Samuel Gange (Gange, Christopher) (Entered: 01/10/2007)
95 ATTORNEY Appearance for deponent Theresa Dederer by Christopher Samuel Gange (Gange, Christopher) (Entered: 01/10/2007)
96 ATTORNEY Appearance for deponent Canda Scott by John E. Huston (Huston, John) (Entered: 01/10/2007)
97 ATTORNEY Appearance for deponent Canda Scott by Karen Elaine Konieczny (Konieczny, Karen) (Entered: 01/10/2007)
98 ATTORNEY Appearance for deponent Theresa Dederer by Karen Elaine Konieczny (Konieczny, Karen) (Entered: 01/10/2007)
99 ATTORNEY Appearance for deponent Theresa Dederer by John E. Huston (Huston, John) (Entered: 01/10/2007)
100 ATTORNEY Appearance for deponent Canda Scott by Karen Elaine Konieczny (Konieczny, Karen) (Entered: 01/10/2007)
101 REPLY by Canda Scott to MOTION to quash Subpoena to Non−Party Barbara Ginder 86 , MOTION to quash Subpoena to Non−Party Theresa Dederer 84 , MOTION to quash Subpoena to Non−Party Canda Scott 88 , response in opposition to motion, 90 (Huston, John) (Entered: 01/10/2007)
102 MINUTE entry before Judge Sidney I. Schenkier : Motion hearing held. For the reasons stated on the record in open court, the motions to quash the deposition and document subpoenas for respondents Dederer (doc. # 84), Ginder (doc. # 86) and Scott (doc. # 88) are denied, subject to the following conditions: (1) documents responsive to the subpoenas will be produced by 01/19/07, as well as a log identifying any responsive documents withheld on grounds of privilege or work product; (2) the depositions shall proceed in Chicago on 01/25 and 01/26, unless different dates are agreed to by the parties in writing or ordered by the Court; and (3) the deposition of Ms. Ginder shall not exceed 4 hours and the depositions of Ms. Dederer and Ms. Scott shall not exceed 3 hours each. Respondents waived on the record their objections to any technical or procedural deficiencies in the subpoenas raised in the motions. The Court expresses no view or ruling as to whether the depositions and documents obtained pursuant to these subpoenas may be used in the Sindell, Jones, Grooms, and Fisher lawsuits. Mailed notice (mmm, ) (Entered: 01/11/2007)
103 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held and continued to 3/20/2007 at 09:00 AM. Defendants' oral motion for extension of time to complete expert discovery and Rule 26(a)(2) report to 2/28/07 is granted. Plaintiff's rebuttal Rule 26(a)(2) report is due by 3/16/07. All discovery is to be completed by 4/20/07. Mailed notice (mmm, ) (Entered: 01/31/2007)
104 MOTION by Plaintiff Donna Radaszewski for extension of time to Disclose Rebuttal Experts and Produce Reports (Megan, Sarah) (Entered: 03/09/2007)
105 NOTICE of Motion by Sarah Catherine Megan for presentment of extension of time 104 before Honorable Sidney I. Schenkier on 3/15/2007 at 08:30 AM. (Megan, Sarah) (Entered: 03/09/2007)

Case: 1:01-cv-9551 As of: 10/26/2017 09:49 AM CDT 10 of 14

03/15/2007
05/02/2007 05/07/2007 05/07/2007 05/10/2007
05/25/2007 05/25/2007 05/30/2007 06/05/2007
06/07/2007 06/07/2007 06/12/2007 06/12/2007 06/19/2007

106 MINUTE entry before Judge Sidney I. Schenkier : Motion hearing held. Plaintiff's motion for extension of time to disclose rebuttal experts and produce Rule 26(a)(2) reports, and to also take the depositions of Mr. Menenberg and Ms. Coonrod 104 is granted, with the condition that Mr. Menenberg and Ms. Coonrod shall only be deposed once. The depositions of Mr. Menenberg and Ms. Coonrod shall be completed by 4/13/07. The plaintiff shall disclose rebuttal experts and submit Rule 26(a)(2) reports by 4/30/07. The remaining depositions shall be completed by 5/14/07. The status hearing set for 3/20/07 is reset ot 5/2/07 at 9:00 a.m. Mailed notice (mmm, ) (Entered: 03/16/2007)
107 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held and continued to 5/16/2007 at 09:00 AM.Mailed notice (mmm, ) (Entered: 05/04/2007)
108 MOTION by Plaintiff Donna Radaszewski to strike Defendant's Untimely Expert Disclosures (Megan, Sarah) (Entered: 05/07/2007)
109 Plaintiff's NOTICE of Motion by Sarah Catherine Megan for presentment of motion to strike 108 before Honorable Sidney I. Schenkier on 5/10/2007 at 08:30 AM. (Megan, Sarah) (Entered: 05/07/2007)
110 MINUTE entry before Judge Sidney I. Schenkier : Motion hearing held. Plaintiffs motion to strike defendants untimely expert disclosures (doc. # 108) is granted in part and denied in part. By the close of business, plaintiff is to provide to defendant any materials that Dr. Flint considered in forming his opinions. The plaintiff is given leave to further depose Dr. Menenberg telephonically. Mr. Werner is to be produced for depositions. Mr. Holler is to be produced fordeposition if the defendant places him on the list. The plaintiff is to produce Dr. Flint for deposition, after the other depositions are completed, if the defendant wants to depose him. All fees and costs for the depositions are to be paid by the defense. All depositions are to be completed by 6/15/07. The Court strikes defendants 3rd amended response to plaintiffs 1st set of interrogatories which was filed on 5/3/07. The Court strikes the 5/16/07 status hearing and resets it to 6/14/07 at 9:00 a.m. Mailed notice (mb, ) (Entered: 05/16/2007)
111 MOTION by Plaintiff Donna Radaszewski to compel (Megan, Sarah) (Entered: 05/25/2007)
112 NOTICE of Motion by Sarah Catherine Megan for presentment of motion to compel 111 before Honorable Sidney I. Schenkier on 5/31/2007 at 08:30 AM. (Megan, Sarah) (Entered: 05/25/2007)
113 MINUTE entry before Judge Sidney I. Schenkier :plaintiff's motion to compel 111 is reset for hearing on 6/5/2007 at 08:30 AM.Telephone notice (mmm, ) (Entered: 05/30/2007)
114 MINUTE entry before Judge Sidney I. Schenkier :Motion hearing held. Plaintiff's motion to compel further deposition of Dr. Menenberg 111 is granted. Dr. Menenberg's deposition is to be completed by 6/28/07. The status hearing set for 6/14/07 is reset to 6/28/2007 at 09:00 AM.Mailed notice (mmm, ) (Entered: 06/05/2007)
115 MINUTE entry before Judge Sidney I. Schenkier : Enter agreed order to clarify the Court's order of 5/10/07 110 [For further detail see separate order]Mailed notice (mb, ) (Entered: 06/11/2007)
116 AGREED ORDER Signed by Judge Sidney I. Schenkier on 6/7/2007.(mb, ) (Entered: 06/11/2007)
117 MOTION by Plaintiff Donna Radaszewski for leave to file /DIsclose Supplemental Expert Report (Megan, Sarah) (Entered: 06/12/2007)
118 NOTICE of Motion by Sarah Catherine Megan for presentment of motion for leave to file 117 before Honorable Sidney I. Schenkier on 6/19/2007 at 08:30 AM. (Megan, Sarah) (Entered: 06/12/2007)
119 MINUTE entry before Judge Sidney I. Schenkier : Motion hearing held. Plaintiff's motion for leave to disclose supplemental expert report (doc. # 117) is granted. The supplemental report is to be limited to a critique of Mr. Werner's analysis. Mr. Werner may submit a rebuttal report to Dr. Flint's supplemental report by 7/6/07. No further

Case: 1:01-cv-9551 As of: 10/26/2017 09:49 AM CDT 11 of 14

06/20/2007 06/20/2007 06/20/2007 06/26/2007
07/06/2007 07/11/2007 08/23/2007 08/23/2007 08/23/2007 08/23/2007 08/23/2007
08/23/2007 08/23/2007
08/23/2007 08/23/2007
08/23/2007

depositions of Mr. Werner or Dr. Flint are to take place. Status hearing set for 7/11/07 at 9:00 a.m. Mailed notice (mmm, ) (Entered: 06/19/2007)
120 MOTION by Plaintiff Donna Radaszewski for extension of time to File Dispositive Motions (Megan, Sarah) (Entered: 06/20/2007)
121 NOTICE of Motion by Sarah Catherine Megan for presentment of extension of time 120 before Honorable John W. Darrah on 6/26/2007 at 09:00 AM. (Megan, Sarah) (Entered: 06/20/2007)
122 MOTION by Plaintiff Donna Radaszewski for extension of time to File Dispositive Motions (Megan, Sarah) (Entered: 06/20/2007)
123 MINUTE entry before Judge John W. Darrah : Plaintiffs motion to enlarge the time to file dispositive motions is denied 122 . Plaintiff to provide witness and exhibit lists by 7/20/07. Defendant to provide witness and exhibit lists by 8/16/07. Motions in limine are to be filed with the pretrial order. Responses to motion the motions in limine to be filed by 9/4/07. (mb, ) (Entered: 06/27/2007)
125 TRANSCRIPT of proceedings for the following date: 5/10/2007; Before the Honorable Sidney I. Schenkier (mb, ) (Entered: 07/11/2007)
124 MINUTE entry before Judge Sidney I. Schenkier : Status hearing held. All matters relating to the referral of this matter having been resolved, the referral is hereby terminated. Mailed notice (mmm, ) (Entered: 07/11/2007)
126 MINUTE entry before Judge John W. Darrah :Final pretrial conference set for 9/6/07 is re−set to 9/4/07 at 2:00 p.m. Mailed notice(maf, ) (Entered: 08/23/2007)
127 MOTION by Plaintiff Donna Radaszewskiin limine to Limit Testimony of Barbara Ginder (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Megan, Sarah) (Entered: 08/23/2007)
128 MOTION by Plaintiff Donna Radaszewskiin limine to Limit Defendant from Presenting Evidence About Eric Radaszewski's Medical Needs (Attachments: # 1 Exhibit A# 2 Exhibit B)(Megan, Sarah) (Entered: 08/23/2007)
129 MOTION by Plaintiff Donna Radaszewskiin limine to Exclude the Testimony of Joseph R. Holler (Shapiro, Bernard) (Entered: 08/23/2007)
130 MEMORANDUM by Donna Radaszewski in support of motion in limine 129 to Exclude the Testimony of Joseph R. Holler (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12)(Shapiro, Bernard) (Entered: 08/23/2007)
131 MOTION by Plaintiff Donna Radaszewskiin limine to Exclude the Report and Testimony of Todd D. Menenberg (Shapiro, Bernard) (Entered: 08/23/2007)
132 MEMORANDUM by Donna Radaszewski in support of motion in limine 131 to Exclude the Report and Testimony of Todd D. Menenberg (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13)(Shapiro, Bernard) (Entered: 08/23/2007)
133 MOTION by Plaintiff Donna Radaszewskiin limine to Exclude the Report and Testimony of Matthew Werner (Shapiro, Bernard) (Entered: 08/23/2007)
134 MEMORANDUM by Donna Radaszewski in support of motion in limine 133 to Exclude the Report and Testimony of Matthew Werner (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit # 4 Exhibit 4# 5 Exhibit 5# 6 Exhibit 6# 7 Exhibit 7# 8 Exhibit 8# 9 Exhibit 9# 10 Exhibit 10# 11 Exhibit 11# 12 Exhibit 12# 13 Exhibit 13# 14 Exhibit 14# 15 Exhibit 15# 16 Exhibit 16# 17 Exhibit 17# 18 Exhibit 18# 19 Exhibit 19# 20 Exhibit 20# 21 Exhibit 21# 22 Exhibit 22# 23 Exhibit 23# 24 Exhibit 24# 25 Exhibit 25)(Shapiro, Bernard) (Entered: 08/23/2007)
135 MOTION by Defendant Barry S Maramin limine to Exclude All Deposition Portions Designated by Plaintiff as Evidence (Attachments: # 1 Exhibit A−C)(Huston, John) (Entered: 08/23/2007)

Case: 1:01-cv-9551 As of: 10/26/2017 09:49 AM CDT 12 of 14

08/23/2007 08/23/2007 08/23/2007 08/23/2007 08/23/2007 08/23/2007 08/23/2007 08/23/2007 08/30/2007 08/30/2007 08/30/2007 08/30/2007 09/04/2007 09/04/2007 09/04/2007 09/04/2007

136 NOTICE by Barry S Maram re MOTION by Defendant Barry S Maramin limine to Exclude All Deposition Portions Designated by Plaintiff as Evidence 135 and Certificate of Service (Huston, John) (Entered: 08/23/2007)
137 MOTION by Defendant Barry S Maramin limine to Exclude All Plaintiff's Witnesses not Seasonably Disclosed During Discovery (Attachments: # 1 Exhibit A−G)(Huston, John) (Entered: 08/23/2007)
138 NOTICE by Barry S Maram re MOTION by Defendant Barry S Maramin limine to Exclude All Plaintiff's Witnesses not Seasonably Disclosed During Discovery 137 and Certificate of Service (Huston, John) (Entered: 08/23/2007)
139 MOTION by Defendant Barry S Maramin limine to Exclude Testimony From all Plaintiff's Witnesses Concerning anything Occurring Prior to Eric Radiszewski Reaching the Age of Twenty−One (Huston, John) (Entered: 08/23/2007)
140 NOTICE by Barry S Maram re MOTION by Defendant Barry S Maramin limine to Exclude Testimony From all Plaintiff's Witnesses Concerning anything Occurring Prior to Eric Radiszewski Reaching the Age of Twenty−One 139 and Certificate of Service (Huston, John) (Entered: 08/23/2007)
141 MOTION by Defendant Barry S Maramin limine to Exclude the Testimony, Report and Documents From Samuel Flint, Ph.D. (Attachments: # 1 Exhibit A)(Huston, John) (Entered: 08/23/2007)
142 NOTICE by Barry S Maram re MOTION by Defendant Barry S Maramin limine to Exclude the Testimony, Report and Documents From Samuel Flint, Ph.D. 141 and Certificate of Service (Huston, John) (Entered: 08/23/2007)
143 PROPOSED Pretrial Order of the Parties filed by Donna Radaszewski (Attachments: # 1 Exhibit A# 2 Exhibit C − 1# 3 Exhibit C − 2# 4 Exhibit D# 5 Exhibit D − 1# 6 Exhibit E# 7 Exhibit F# 8 Exhibit F − 1# 9 Exhibit I)(Megan, Sarah) (Entered: 08/23/2007)
144 RESPONSE by Donna Radaszewskiin Opposition to MOTION by Defendant Barry S Maramin limine to Exclude the Testimony, Report and Documents From Samuel Flint, Ph.D. 141 (Megan, Sarah) (Entered: 08/30/2007)
145 RESPONSE by Donna Radaszewskiin Opposition to MOTION by Defendant Barry S Maramin limine to Exclude Testimony From all Plaintiff's Witnesses Concerning anything Occurring Prior to Eric Radiszewski Reaching the Age of Twenty−One 139 (Megan, Sarah) (Entered: 08/30/2007)
146 RESPONSE by Donna Radaszewskiin Opposition to MOTION by Defendant Barry S Maramin limine to Exclude All Deposition Portions Designated by Plaintiff as Evidence 135 (Attachments: # 1 Exhibit A# 2 Exhibit B)(Megan, Sarah) (Entered: 08/30/2007)
147 RESPONSE by Donna Radaszewskiin Opposition to MOTION by Defendant Barry S Maramin limine to Exclude All Plaintiff's Witnesses not Seasonably Disclosed During Discovery 137 (Attachments: # 1 Exhibit A# 2 Exhibit B)(Megan, Sarah) (Entered: 08/30/2007)
148 RESPONSE by Barry S Maram to MOTION by Plaintiff Donna Radaszewskiin limine to Exclude the Report and Testimony of Todd D. Menenberg 131 (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Konieczny, Karen) (Entered: 09/04/2007)
149 NOTICE by Barry S Maram re response to motion 148 and Certificate of Service (Konieczny, Karen) (Entered: 09/04/2007)
150 RESPONSE by Barry S Maramin Opposition to MOTION by Plaintiff Donna Radaszewskiin limine to Exclude the Report and Testimony of Matthew Werner 133 (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C)(Huston, John) (Entered: 09/04/2007)
151 NOTICE by Barry S Maram re response in opposition to motion 150 and Certificate of Service (Huston, John) (Entered: 09/04/2007)

Case: 1:01-cv-9551 As of: 10/26/2017 09:49 AM CDT 13 of 14

09/04/2007 09/04/2007 09/04/2007
09/07/2007 09/07/2007 09/07/2007 09/10/2007 09/11/2007 09/14/2007 09/18/2007 09/19/2007 09/28/2007 10/17/2007 10/17/2007 11/07/2007 11/07/2007 11/07/2007

152 RESPONSE by Barry S Maramin Opposition to MOTION by Plaintiff Donna Radaszewskiin limine to Exclude the Testimony of Joseph R. Holler 129 (Huston, John) (Entered: 09/04/2007)
153 NOTICE by Barry S Maram re response in opposition to motion 152 and Certificate of Service (Huston, John) (Entered: 09/04/2007)
154 MINUTE entry before Judge John W. Darrah : Pretrial Conference held. Plaintiffs Motion in Limine to Limit the Testimony of Barbara Ginder, Plaintiffs Motion in Limine to Limit Defendant From Presenting Evidence about Eric Radaszewskis Medical Needs,and Defendants Motion in Limine to Exclude Testimony From All of Plaintiffs Witnesses Concerning Anything Occurring Prior to Eric Radaszewski Reaching the Age of Twenty−One are denied without prejudice to raise the objections during trial. Plaintiffs Motion in Limine to Exclude the Testimony of Joseph R. Holler; Plaintiffs Motion in Limine to Exclude the Report and Testimony of Matthew Werner; Plaintiffs Motion in Limine to Exclude the Report and Testimony of Todd D. Menenberg; Defendants Motion in Limine to Exclude Testimony, Report and Documents From Samuel S. Flint, PhD.; Defendants Motion in Limine to Exclude All Plaintiffs Witnesses Not Seasonably Disclosed During Discovery; andDefendants Motion in Limine to Exclude All Deposition Portions Designated by Plaintiff as Evidence are entered and continued until trial.Mailed notice (mb, ) (Entered: 09/07/2007)
155 ATTORNEY Appearance for Non−Party Respondent Cindy Sabo (Huston, John) (Entered: 09/07/2007)
156 MOTION by Respondent Cindy Sabo to quash Subpoena Ad Testificandum (Attachments: # 1 Exhibit A)(Huston, John) (Entered: 09/07/2007)
157 NOTICE of Motion by John E. Huston for presentment of motion to quash 156 before Honorable John W. Darrah on 9/10/2007 at 09:00 AM. (Huston, John) (Entered: 09/07/2007)
158 MINUTE entry before Judge John W. Darrah :Bench trial begins. Bench Trial continued to 9/11/2007 at 10:00 AM. (cem, ) (Entered: 09/12/2007)
159 MINUTE entry before Judge John W. Darrah :Bench trial held and continued to 9/14/2007 at 09:00 AM. (cem, ) (Entered: 09/12/2007)
160 MINUTE entry before Judge John W. Darrah : Bench trial held and continued to 9/18/2007 at 10:00 AM. (mb, ) (Entered: 09/19/2007)
161 MINUTE entry before Judge John W. Darrah : Bench trial held 9/19/2007 at 10:00 AM. (mb, ) (Entered: 09/20/2007)
162 MINUTE entry before Judge John W. Darrah : Evidence concluded. Plaintiff's initial closing arguments are due by 10/17/07, defendants' responses by 11/7/07, plaintiff's reply by 11/14/07. Ruling by mail. Mailed notice (mb, ) (Entered: 09/21/2007)
163 TRANSCRIPT of proceedings for the following dates: 9/10/2007, 9/11/2007, 9/14/2007, 9/18/2007, 9/19/2007; Before the Honorable John W. Darrah (Volumes 1−5) (mb, ) (Entered: 10/01/2007)
164 Plaintiff's Proposed Findings of Fact and Conclusions of Law by Donna Radaszewski (Megan, Sarah) (Entered: 10/17/2007)
165 Plaintiff's Closing Argument by Donna Radaszewski (Shapiro, Bernard) (Entered: 10/17/2007)
166 Defendant's Closing Argument by Barry S Maram (Konieczny, Karen) (Entered: 11/07/2007)
167 Defendant's Response to Plaintiff's Proposed Findings of Fact and Defendant's Proposed Findings of Fact by Barry S Maram (Huston, John) (Entered: 11/07/2007)
168 Defendant's Response to Plaintiff's Proposed Conclusions of Law and Defendant's Proposed Conclusions of Law by Barry S Maram (Gange, Christopher) (Entered: 11/07/2007)

Case: 1:01-cv-9551 As of: 10/26/2017 09:49 AM CDT 14 of 14

11/07/2007 11/11/2007 03/26/2008
03/26/2008 03/26/2008 05/09/2008 05/09/2008

169 NOTICE by Barry S Maram re other 167 , other 168 , other 166 (Gange, Christopher) (Entered: 11/07/2007)
170 Plaintiff's Reply to Defendant's Closing Argument by Donna Radaszewski (Megan, Sarah) (Entered: 11/11/2007)
171 MINUTE entry before Judge Honorable John W. Darrah: For the reasons stated in the attached opinion and order, judgment is entered in plaintiff's favor and against defendant on plaintiff's ADA and RA claims. The parties are ordered to meet, confer and submit a proposed order, setting forth the appropriate relief, consistent with the holding of this opinion and order, on or before 4/18/08. Enter Opinion and Order. Civil case terminated. Mailed notice (mb, ) (Entered: 03/28/2008)
172 Opinion and Order Signed by Judge Honorable John W. Darrah on 3/26/2008:(mb, ) (Entered: 03/28/2008)
173 ENTERED JUDGMENT.(mb, ) (Entered: 03/28/2008)
174 MINUTE entry before Judge Honorable John W. Darrah: Enter Order regarding the Court's opinion and order dated 3/26/08.Mailed notice (kjc, ) (Entered: 05/14/2008)
175 ORDER Signed by Judge Honorable John W. Darrah on 5/9/2008.(kjc, ) (Entered: 05/14/2008)

 </s> •
• •

I

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLfNOIREC (::]\/FO

EASTERN DIVISION

.

DONNA RADASZEWSKI, Plaintiff,
v.
ANN PATLA, Director, lIIinois Department of Public Aid,

~EP - 1 2000
MICHAEL W. UoJ,-,u •.• ::>
';LERK U. S. DISTRICT COuRT t
No.
ooc 5391

Defendant.

AFFIDAVIT

Janina Badowska, M.D., having been duly sworn statcs as follows:

I.

My name is Janina Badowska, M.D.

2.

I am a physician, board certified in pediatrics:

3 .

My medical practice is located at 10 W. Martin in Naperville, lIIinois, 60540.

4.

I presently have in my care as a paticnt. Eric Radaszcwski.

5.

Except for a brief period, in approximately 1991, I have treated Eric since he was four and one-

half years old.

6.

Eric is twenty-one years old.

7.

In 1992 Eric contracted melanocyctic medulloblastoma which is a cancer in thc brain. His medical

treatment for this disease consisted of surgery, radiation and chemotherapy.

8.

In November of 1993, Eric suffered a mid brain strokc. The mid-brain regulates those body

functions that a person perfonns unconsciously such as swallowing and urinating.

9.

These two medical events and the necessary medical treatment Eric has received have caused thc

following medical problems for Eric:

A.

His immunity to disease has bccn substantially reduced. He is at a substantial risk for

infection which can occur very quickly. Immediate detection and treatmcnt. often in a

hospital. are necessary to prevcnt the rapid progression of the particular disease he may

have contracted .

EXHIBIT

~

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D

jPg. 17 of 40

,

,

• • •

B .

He has fracluring OSleoporosis which has lhinned the mass of his bones. He is lhus prone

to his bones breaking.

C.

He has conlractures to his hands and feel. This condilion leaves his hands and fCCl

unnaturally rigid so that he is subject to falling or other body movements lhat can result in

bone fractures ..

D.

Because of the fracturing osteoporosis and his contraclures he is confined lO bed or a

wheelchair and is not supposed to walk.

E.

He has hydrocephalus which means that he has cerebral fluid within his skull cavity. This

condition has resulted in Eric's mental deterioration and has caused seizures.

F.

He has double vision, 100 percent loss of hearing in his right ear and 80 percent loss of

hearing in left car.

G.

He is apraxic and unable to move his arms and legs knowingly; aphasic meaning he has

lost the majority of his ability to speak and suffers from a condition known as Syndrome of

Inappropriate Anti-Diuretic Hormone (SIADH) which affects his ability to urinate

properly. This medical condition results in nausea, vomiting and can cause seizures.

Because of Eric's loss of motor skills, vomiting can be a life threatening event to him.

10. These medical conditions require that the following medical procedures be available at all times and administered when needed:

A.

Eric requires a person with sufficient medical knowledge and training to identify the onset

of infections. That person, at a minimum, should be a registered nurse.

B.

Eric is primarily fed intravenously eight hours each night. He cannot feed himself. To

reduce elimination problems, he is also fed solid foods. His tolerance for these solid foods

. is low and can lead to intractable vomiting. When this occurs he must be fed first stage

baby foods through an NG tube which is inserted through his nose to his stomach. His NG

tube is also used to administer his medications.

c.

[n addition to the NG tube he has a catheter to urinate, a ventricular pleural shunt that

drains the fluid in his skull into the pleural space of his lungs, and a Groshung catheter by

which he receives food and hydration. All of these tubes are prone to infection and must

be constantly monitored. He requires a registered nurse level of medical assistance to

provide the sterile care of these tubes, to place his NG tube, to provide suctioning, and to

prepare drugs that must be measured and administered sometimes rapidly.

D.

Because Eric has deficiencies in long and short term memory, he does not remember his

disabilities and limitations and is prone to undertaking activities which threaten his well

being and even his life such as attempting to walk or pulling on his tubes. Accordingly, he

must be constantly monitored to ensure that he docs not injure himself.

E.

He requires constant monitoring by a person with a registcred nurse level of training for

2
EXHIBIT

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G

i pg • 18 of 40

• •

I

seizures, shunt malfunction and desilturation

F.

He requires care at a registered nurse level to admmister intravenous drugs, hydration,

triphosopyridine nucleotide (TPN) (mtravenous feedings), injections and oxygen.

G.

Because he suffers from SIADH. the quantity and quality of his urine and its composition

must be monitored by a trained person.

H. The quality of his skin must be monitored

I.

Because Eric does not have the mental capacity to protect his airway, he at times requires

emergency suctioning to prevent aspiration.

I I. The above medical conditions render Eric totally dependant for all activities of daily living (ADL).

12. Eric's chronic health problems will continue to multiply due to the damage he received from his cancer treatments. Only in his home, with proper medical care and support, can he medically survive and achieve some quality of life in the caring and loving environment that his parents provide.
13. For Eric, the alternative to home care is hospital care. A skilled nursing facility cannot provide the one-on-one around the clock medical care that Erie requires.

14. His survival to this point is attributable to the high level of registered nursing care he has received. Without this level of care, it would have been necessary (0 admit him to a hospital many times a
year.

15. He requires a high level of registered nursing eare to properly perfonn the medical tasks outlined above. This care needs to be one:.on-one and I reconunend that he receive such care 24 hours each day. Any amount of daily care less than this level endangers Eric's fragile medical condition. His survival depends upon his receiving this level of care.

SUBSCRIBED AND SWORN to befo~~ me this ':jy;
of7(.k' .-(." .
NOT Y PUBLIC

OFFICIAL SEAL
CYNTHIA A AUmY
NOTARY PUBLIC. STATE OF H..lINOIS MY COMMISSION EX~: UJOa,<OO

•

3

EXHIBIT

! G

D
SPg.

19

of

40

 </s> No. 02-3657
IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT ______________________
DONNA RADASZEWSKI, Guardian, on behalf of Eric Radaszewski,
Plaintiff - Appellant
v.
JACKIE GARNER, Director, Illinois Department of Public Aid,
Defendant - Appellee
______________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS Honorable John W. Darrah ______________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLANTS AND URGING REVERSAL
______________________
RALPH F. BOYD, JR. Assistant Attorney General
JESSICA DUNSAY SILVER SARAH E. HARRINGTON
Attorneys U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave. NW, PHB 5020 Washington, DC 20530 (202) 305-7999

TABLE OF CONTENTS

INTEREST OF THE UNITED STATES

PAGE ............................. 1

STATEMENT OF THE ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

ARGUMENT: SUITS UNDER TITLE II MAY BE BROUGHT AGAINST STATE OFFICIALS IN THEIR OFFICIAL CAPACITIES FOR PROSPECTIVE RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The Eleventh Amendment Is No Bar To Private Suits Against State Officials To Enjoin Future Violations Of Federal Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
B. Congress Did Not Display Any Intent To Foreclose Jurisdiction Under Ex parte Young For Suits Under Title II And Section 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF COMPLIANCE

CERTIFICATE OF SERVICE

TABLE OF AUTHORITIES

CASES:

PAGE

ACLU v. Johnson, 194 F.3d 1149 (10th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . 19

Alden v. Maine, 527 U.S. 706 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7, 9, 19

Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Alexander v. Sandoval, 532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Armstrong v. Wilson, 124 F.3d 1019 (9th Cir. 1997), cert. denied, 524 U.S. 937 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Ashley v. United States, 266 F.3d 671 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . 5 Baker v. Bell, 630 F.2d 1046 (5th Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Barnes v. Gorman, No. 01-682, 2002 WL 1305773 (June 17, 2002) . . . . . . . . . . 13 Bazemore v. Friday, 478 U.S. 385 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Bragdon v. Abbott, 524 U.S. 624 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Brennan v. Stewart, 834 F.2d 1248 (5th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . 17 Califano v. Yamasaki, 442 U.S. 682 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Campbell v. Kruse, 434 U.S. 808 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Cannon v. University of Chicago, 441 U.S. 677 (1979) . . . . . . . . . . . . . . . . . . . . 16

Carten v. Kent State Univ., 282 F.3d 391 (6th Cir. 2002) . . . . . . . . . . . . . 18-19, 21

-ii-

CASES (continued):

PAGE

Disabled In Action v. Sykes, 833 F.2d 1113 (3d Cir. 1987), cert. denied, 485 U.S. 989 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Edelman v. Jordan, 415 U.S. 651 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Edwards v. Illinois Bd. of Admissions, 261 F.3d 723 (7th Cir. 2001) . . . . . . . . . . . 6

EEOC v. Board of Regents of Univ. of Wis. Sys., 288 F.3d 296 (7th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Ellis v. University of Kan. Med. Ctr., 163 F.3d 1186 (10th Cir. 1998) . . . . . . . . . 12

Ex Parte Young, 209 U.S. 123 (1908) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60 (1992) . . . . . . . . . . . . . 12, 13

Garrity v. Sununu, 752 F.2d 727 (1st Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Gibson v. Arkansas Dep’t of Corr., 265 F.3d 718 (8th Cir. 2001) . . . . . . . . . 12, 14

Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030 (7th Cir. 1987) . . . . . . . . . . 16

Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Green v. Mansour, 474 U.S. 64 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9

Hafer v. Melo, 502 U.S. 21 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Helms v. McDaniel, 657 F.2d 800 (5th Cir. 1981), cert. denied, 455 U.S. 946 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Hendrickson v. Griggs, 672 F. Supp. 1126 (N.D. Iowa 1987) . . . . . . . . . . . . . . . 19

-iii-

CASES (continued):

PAGE

Honig v. Students of Cal. Sch. for the Blind, 471 U.S. 148 (1985) . . . . . . . . . . . . 16

Hurry v. Jones, 734 F.2d 879 (1st Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997) . . . . . . . . . . . . . . . . 20

In re Ellett, 254 F.3d 1135 (9th Cir. 2001), cert. denied, 122 S. Ct. 1064 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 20

J.B. ex rel. Hart v. Valdez, 186 F.3d 1280 (10th Cir. 1999) . . . . . . . . . . . . . . . . . 21

Joseph A. v. Ingram, 275 F.3d 1253 (10th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . 12

Joyner v. Dumpson, 712 F.2d 770 (2d Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . 17

Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . 17

Kentucky Ass’n for Retarded Citizens, Inc. v. Conn, 674 F.2d 582 (6th Cir.), cert. denied, 459 U.S. 1041 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Kentucky v. Graham, 473 U.S. 159 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 18

Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Lau v. Nichols, 414 U.S. 563 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Lieberman v. University of Chicago, 660 F.2d 1185 (7th Cir. 1981), cert. denied, 456 U.S. 937 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Lorillard v. Pons, 434 U.S. 575 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990) . . . . . . . . . . . . . . . . . . . . . . . . 17

-iv-

CASES (continued):

PAGE

Marie O. v. Edgar, 131 F.3d 610 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . 12

Miener v. Missouri, 673 F.2d 969 (8th Cir.), cert. denied, 459 U.S. 909 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17

Monell v. Department of Soc. Servs., 436 U.S. 658 (1978) . . . . . . . . . . . . . . . . . . . 6

Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Olmstead v. L.C., 527 U.S. 581 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Osteen v. Henley, 13 F.3d 221 (7th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Parks v. Pavkovic, 753 F.2d 1397 (7th Cir.), cert. denied, 473 U.S. 906 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Phillips v. Thompson, 715 F.2d 365 (7th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . 17

Plummer v. Branstad, 731 F.2d 574 (8th Cir. 1984) . . . . . . . . . . . . . . . . . . . . . . . 17

Porter v. Warner Holding Co., 328 U.S. 395 (1946) . . . . . . . . . . . . . . . . . . . . . . 13

Radaszewski v. Garner, 2002 WL 31045384, No. 01-9551 (N.D. Ill. Sept. 11, 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 3-4, 5

Randolph v. Rodgers, 253 F.3d 342 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 20, 21

Roe No. 2 v. Ogden, 253 F.3d 1225 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . 21

S-1 v. Turlington, 635 F.2d 342 (5th Cir.), cert. denied, 454 U.S. 1030 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Sandoval v. Hagan, 197 F.3d 484 (11th Cir. 1999), rev’d on other grounds, 532 U.S. 275 (2001) . . . . . . . . . . . . . . . . . . . . . . . 12

-v-

CASES (continued):

PAGE

Santee Sioux Tribe v. Nebraska, 121 F.3d 427 (8th Cir. 1997) . . . . . . . . . . . . . . . 12

Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996) . . . . . . . . . . . . . . . . . passim

Smith v. Metropolitan Sch. Dist., 128 F.3d 1014 (1997), cert. denied, 524 U.S. 951 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Smith v. Robinson, 468 U.S. 992 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Stanley v. Litscher, 213 F.3d 340 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Telespectrum, Inc. v. Public Serv. Comm’n, 227 F.3d 414 (6th Cir. 2000) . . . . . 20 United Handicapped Fed’n v. Andre, 558 F.2d 413 (8th Cir. 1977) . . . . . . . . . . 17 United States v. Alabama, 791 F.2d 1450 (11th Cir. 1986) . . . . . . . . . . . . . . . . . 16 United States v. Carlos-Colmenares, 253 F.3d 276 (7th Cir.),
cert. denied, 122 S. Ct. 258 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

University of Alabama v. Garrett, 531 U.S. 356 (2001) . . . . . . . . . . . . . . . 4, 7, 8, 9 Verizon Md., Inc. v. Public Serv. Comm’n of Md., 122 S. Ct. 1753 (2002) . passim
Walker v. Snyder, 213 F.3d 344 (2000), cert. denied, 531 U.S. 1190 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Whetsel v. Network Prop. Servs., LLC, 246 F.3d 897 (7th Cir. 2001) . . . . . . . . . . 6

CONSTITUTION AND STATUTES:
United States Constitution: Eleventh Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

-vi-

STATUTES (continued):

PAGE

Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq. . . . . . . 2 42 U.S.C. 12101(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 12111-12117 (Title I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 12131-12165 (Title II) . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

42 U.S.C. 12131(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. 12131(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. 12131(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 42 U.S.C. 12132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 12133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 12, 15 42 U.S.C. 12181-12189 (Title III) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Civil Rights Act of 1964, Title VI, 42 U.S.C. 2000d . . . . . . . . . . . . . . . . . . passim

Education Amendments of 1972, Title IX, 20 U.S.C. 1681 . . . . . . . . . . . . . . . . . 13

Rehabilitation Act of 1973, 29 U.S.C. 701 et seq., 29 U.S.C. 794 (Section 504) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 29 U.S.C. 794a(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

47 U.S.C. 252(e)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 47 U.S.C. 252(e)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

LEGISLATIVE HISTORY:
H.R. Rep. No. 485, 101st Cong., 2d Sess. (1990): Pt. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Pt. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14
136 Cong. Rec. 11,471 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

RULES: Fed. R. Civ. P. 65(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

-vii-

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 02-3657 DONNA RADASZEWSKI, Guardian, on behalf of Eric Radaszewski,
Plaintiff - Appellant v. JACKIE GARNER, Director, Illinois Department of Public Aid,
Defendant - Appellee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS Honorable John W. Darrah
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING APPELLANTS AND URGING REVERSAL
INTEREST OF THE UNITED STATES This appeal involves the ability of individuals to seek judicial enforcement of Title II of the Americans with Disabilities Act against state officials for injunctive relief. The Attorney General has authority to enforce Title II. See 42 U.S.C. 12133. However, because of the inherent limitations on administrative enforcement mechanisms and on the litigation resources of the United States, the United States has an interest in ensuring that the Disabilities Act can be enforced in federal court by private parties to the extent permitted by the statute and the

-2Constitution. The United States filed a brief addressing this issue in another case in this Court, Boudreau v. Ryan, No. 02-1730.
STATEMENT OF THE ISSUES The United States will address the following question: Whether an individual may sue a state official in his official capacity to enjoin continuing violations of Title II of the Americans with Disabilities Act.
STATEMENT OF THE CASE 1. Congress enacted the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. 12101 et seq., to establish a “comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. 12101(b)(1). The ADA targets three particular areas of discrimination against persons with disabilities. Title I, 42 U.S.C. 12111-12117, addresses discrimination by employers affecting interstate commerce; Title II, 42 U.S.C. 12131-12165, addresses discrimination by governmental entities in the operation of public services, programs, and activities, including transportation; and Title III, 42 U.S.C. 12181-12189, addresses discrimination in public accommodations operated by private entities. This case involves a suit filed under, inter alia, Title II. Title II provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. 12132. A “public entity” is defined to include “any State or

-3local government” and its components. 42 U.S.C. 12131(1)(A) and (B). A “[q]ualified individual with a disability” is a person “who, with or without reasonable modifications * * * meets the essential eligibility requirements” for the governmental program or service. 42 U.S.C. 12131(2). The language of Title II contemplates private suits against public entities. 42 U.S.C. 12133.
2. In this case, Donna Radaszewski brought suit on behalf of her son, Eric, an individual with disabilities, against a state official, sued in her official capacity, alleging that his practices violated, inter alia, Title II and Section 504 of the Rehabilitation Act, and seeking injunctive relief. Because of his disabilities, Eric Radaszewski requires nursing care 24 hours per day. When Eric turned 21, the defendant agency sought to reduce Medicaid reimbursement funding for in-home nursing care to such an extent that Eric would have to be placed in an institution in order to receive the care that he requires. After the plaintiff filed suit, the defendant filed a motion for judgment on the pleadings, arguing, inter alia, that she enjoys Eleventh Amendment immunity from suits under Title II of the ADA. She did not raise an Eleventh Amendment immunity defense to the claims under Section 504.
The district court granted the defendant’s motion to dismiss the Title II claim, relying on this Court’s holding in Walker v. Snyder, 213 F.3d 344 (2000), cert. denied, 531 U.S. 1190 (2001), that the Ex parte Young doctrine is not available to enforce Title II claims because “the proper defendant in a Title II, ADA claim, is a public entity not an individual.” Radaszewski v. Garner, 2002

-4WL 31045384, No. 01-9551, at *1 (N. D. Ill. Sept. 11, 2002). While the court noted that the Supreme Court’s recent decision in University of Alabama v. Garrett, 531 U.S. 356, 374 n.9 (2001), suggested that Ex parte Young was available to enforce Title I of the Americans with Disabilities Act, the district court determined that it was bound by this Court’s holding in Walker that the doctrine was not available to enforce Title II. Id. at *2.
The court also dismissed the Section 504 claims after concluding that the IDPA’s in-home nursing reimbursement scheme does not discriminate on the basis of disability, and therefore does not violate Section 504. Id. at *2-*3. This timely appeal followed.
SUMMARY OF ARGUMENT The Eleventh Amendment is no bar to this action proceeding under Title II on the claims for injunctive relief against the defendant, a state official sued in his official capacity. Under the doctrine of Ex parte Young, a state official sued for prospective relief to enjoin a continuing violation of federal law is not entitled to invoke the State’s sovereign immunity. In enacting Title II of the Americans with Disabilities Act (ADA), Congress intended to permit suits against state officials in their official capacities. The language of the statute clearly permits such a reading. Moreover, Title II of the ADA specifically incorporates the remedial scheme of Section 504 of the Rehabilitation Act, which, in turn, incorporated the remedial scheme of Title VI of the Civil Rights Act of 1964. Both Title VI and Section 504 have consistently been interpreted to permit suits against government officials in

-5their official capacities for injunctive relief and Congress was aware of that judicial interpretation. Moreover, the legislative history of the ADA confirms Congress’s intent to make available the full panoply of remedies.
This Court in Walker v. Snyder, 213 F.3d 344 (2000), cert. denied, 531 U.S. 1190 (2001), held that Title II suits could not be brought against state officials in their official capacities. We believe this Court should re-examine that holding in light of two intervening Supreme Court decisions, as well as other circumstances, and conclude that it was wrongly decided.
ARGUMENT SUITS UNDER TITLE II MAY BE BROUGHT AGAINST STATE OFFICIALS
IN THEIR OFFICIAL CAPACITIES FOR PROSPECTIVE RELIEF In Walker v. Snyder, 213 F.3d 344, 347 (2000), cert. denied, 531 U.S. 1190 (2001), this Court held that Ex parte Young suits were unavailable under Title II of the Americans with Disabilities Act (ADA). There are three substantial bases for re-examining Walker’s holding on this point. First, as the district court noted, slip op. at *2, intervening Supreme Court decisions have drawn this holding into doubt. See Ashley v. United States, 266 F.3d 671, 674 (7th Cir. 2001) (relying on “strands of analysis” of intervening Supreme Court opinion to overrule recent panel decision). Second, the issue was not fully briefed in Walker – the plaintiff was pro se and the United States, participating as intervenor, focused on the validity of the abrogation – and thus the panel was not presented with the arguments contained herein regarding the text, structure, legislative history, and prior interpretations of

-6earlier statutes. See Whetsel v. Network Prop. Servs., LLC, 246 F.3d 897, 903 (7th Cir. 2001) (that a panel “might not have had [a particular] argument before it” is “a sufficient reason for reconsidering” the panel’s holding); see also Monell v. Department of Soc. Servs., 436 U.S. 658, 709 & n.6 (1978) (Powell, J., concurring). And finally, the decision in Walker has created a split with the four other circuits to address the issue. “In the interest of promoting uniformity of federal law,” this Court has “an obligation to reconsider [its] now isolated position.” United States v. Carlos-Colmenares, 253 F.3d 276, 277 (7th Cir.), cert. denied, 122 S. Ct. 258 (2001). We thus urge this Court to re-examine and overrule Walker and permit this suit to proceed against the state officials in their official capacities.
A. The Eleventh Amendment Is No Bar To Private Suits Against State Officials To Enjoin Future Violations Of Federal Law
The Eleventh Amendment bars private suits against a State sued in its own name, absent a valid abrogation by Congress or waiver by the State. See Alden v. Maine, 527 U.S. 706, 755-756 (1999). In Walker, 213 F.3d at 347, this Court held that Congress’s abrogation of Eleventh Amendment immunity for claims under Title II of the Americans with Disabilities Act involving reasonable accommodations was not a valid exercise of Congress’s authority to enforce the Fourteenth Amendment. Thus, if this private suit had been brought against the State in its own name, under current circuit precedent it might well be barred by the State’s Eleventh Amendment immunity. Cf. Edwards v. Illinois Bd. of Admissions, 261 F.3d 723, 731 (7th Cir. 2001) (suggesting that validity of abrogation for Title II

-7was an open question). But this Court need not reach that question, as this suit was brought against a state official in his official capacity seeking only prospective injunctive relief.
The absence of a valid abrogation or waiver does not mean that States may ignore the ADA or, if they do, that private parties have no remedy in federal court. The Supreme Court, in University of Alabama v. Garrett, 531 U.S. 356 (2001), reaffirmed that Eleventh Amendment immunity does not authorize States to violate federal law. For a holding that “Congress did not validly abrogate the States’ sovereign immunity from suit by private individuals for money damages * * * does not mean that persons with disabilities have no federal recourse against discrimination.” Id. at 374 n.9; see also Alden, 527 U.S. at 754-755 (“The constitutional privilege of a State to assert its sovereign immunity * * * does not confer upon the State a concomitant right to disregard the Constitution or valid federal law.”); Osteen v. Henley, 13 F.3d 221, 223 (7th Cir. 1993) (“The immunity that the Eleventh Amendment grants does not go so far as to allow state officials to ignore federal law with impunity.”).
It was to reconcile these very principles — that States have Eleventh Amendment immunity from private suits, but that they are still bound by federal law — that the Supreme Court adopted the rule of Ex parte Young. See Alden, 527

-8U.S. at 756.1 The Court held in Ex parte Young, 209 U.S. 123 (1908), that, when a state official acts in violation of the Constitution or federal law (which the Constitution’s Supremacy Clause makes the “supreme Law of the Land”), he is deemed to be acting ultra vires and is no longer entitled to the State’s immunity from suit. The doctrine permits only prospective relief, see Edelman v. Jordan, 415 U.S. 651, 664, 667-668 (1974), against an official in his or her official capacity, see Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985). By limiting relief to prospective injunctions against officials, the rule of Ex parte Young avoids courts entering judgments directly against the State but, at the same time, prevents the State (through its officials) from continuing illegal action.
The Ex parte Young doctrine has been described as a legal fiction, but it was adopted by the Supreme Court almost a century ago to serve a critical function in permitting federal courts to bring state policies and practices into compliance with federal law. “Both prospective and retrospective relief implicate Eleventh Amendment concerns, but the availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause. Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law.” Green v. Mansour, 474 U.S. 64, 68 (1985);
1 The Eleventh Amendment is also no bar to the United States suing the State. See Garrett, 531 U.S. at 374 n.9 (noting that the United States could sue a State to recover damages under the ADA); EEOC v. Board of Regents of Univ. of Wis. Sys., 288 F.3d 296, 299-300 (7th Cir. 2002).

-9see also Alden, 527 U.S. at 757 (“Established rules provide ample means to correct ongoing violations of law and to vindicate the interests which animate the Supremacy Clause.”). Thus, the Eleventh Amendment is no bar to a suit proceeding against a state official for prospective injunctive relief.
B. Congress Did Not Display Any Intent To Foreclose Jurisdiction Under Ex parte Young For Suits Under Title II And Section 504
In Walker, 213 F.3d at 347, this Court acknowledged that a suit against a state official in his or her official capacity for prospective relief is permitted by the Eleventh Amendment, but held that a suit against a state official for injunctive relief to cure a continuing violation of federal law is not available under Title II because Congress only intended States, and not their officials, to be named as defendants. For the reasons stated below, Walker’s interpretation of the statute should be re-examined and overruled.
1. One of Walker’s underpinnings was undermined by the Supreme Court’s subsequent decision in Garrett. The panel in Walker stated that the “ADA does not draw any distinction [between Title I and Title II] for the purpose of identifying the appropriate defendants.” 213 F.3d at 346. The Supreme Court stated in Garrett that Title I of the ADA (concerning employment) “can be enforced * * * by private individuals in actions for injunctive relief under Ex parte Young.” 531 U.S. at 374 n.9. Thus, this Court’s intent to synchronize the appropriate defendants under Titles I and II now weighs in favor of permitting suits against officials in their official capacities under Title II.

-102. Another of Walker’s underpinnings was undermined by the Supreme Court’s recent decision in Verizon Maryland, Inc. v. Public Service Commission of Maryland, 122 S. Ct. 1753 (2002). Verizon Maryland clarified the holding regarding Ex parte Young in Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), that the panel in Walker appeared to rely upon in reaching its conclusion. While the Court in Seminole Tribe reaffirmed that the Eleventh Amendment did not bar actions against state officials in their official capacities seeking prospective injunctive relief, it held, as a matter of statutory construction, that “Congress did not intend” to “authorize federal jurisdiction under Ex parte Young” to enforce the Indian Gaming Regulatory Act (IGRA). 517 U.S. at 75 & n.17. In Verizon Maryland, the Supreme Court affirmed the general availability of Ex parte Young actions to enforce federal statutes and clarified the holding in Seminole Tribe in this regard. The statute at issue in Verizon Maryland, the Telecommunications Act of 1996, provided that “the State commission” was responsible for approving or rejecting certain agreements between telephone companies and that “[i]n any case in which a State commission makes a determination under this section, any party aggrieved by such determination may bring an action in an appropriate Federal district court.” 47 U.S.C. 252(e)(1), (e)(6). The Court held that plaintiffs could proceed against the state commissioners in their official capacities under Ex parte Young.

-11-
The Court explained that the doctrine of Ex parte Young is presumed to
apply unless Congress “display[s]” an “intent to foreclose jurisdiction under
Ex parte Young.” 122 S. Ct. at 1761. The Court recounted that in Seminole Tribe
“Congress had specified the means to enforce that duty in § 2710(d)(7), a provision
‘intended . . . not only to define, but also to limit significantly, the duty imposed by
§ 2710(d)(3).’” Ibid. The statute in Seminole Tribe limited the remedies available
to the Court. “The ‘intricate procedures set forth in that provision’ prescribed that
a court could issue an order directing the State to negotiate, that it could require the
State to submit to mediation, and that it could order that the Secretary of the
Interior be notified. We concluded that ‘this quite modest set of sanctions’
displayed an intent not to provide the ‘more complete and more immediate relief’
that would otherwise be available under Ex parte Young.” Ibid. (citations omitted).
Applying this understanding of Seminole Tribe to the Telecommunications Act of
1996, the Court determined that the defendant had not shown that Congress
intended to limit available relief in a way that would preclude actions under Ex
parte Young:
The Commission’s argument that § 252(e)(6) constitutes a detailed and exclusive remedial scheme like the one in Seminole Tribe, implicitly excluding Ex parte Young actions, is without merit. That section provides only that when state commissions make certain “determinations,” an aggrieved party may bring suit in federal court to establish compliance with the requirements of §§ 251 and 252. Even with regard to the “determinations” that it covers, it places no restriction on the relief a court can award. And it does not even say whom the suit is to be brought against -- the state commission, the individual commissioners, or the carriers benefiting from the state commission’s order. The mere fact that Congress has authorized federal courts to review whether the Commission’s action

-12complies with §§ 251 and 252 does not without more “impose upon the State a liability that is significantly more limited than would be the liability imposed upon the state officer under Ex parte Young.”
Ibid.
As evidenced by the Supreme Court’s discussion in Verizon Maryland, the
most critical factor in the Court’s decision in Seminole Tribe not to permit the
action to proceed under Ex parte Young was that Congress had made clear that it
did not want district courts to exercise their normal equitable authority to remedy
violations of statutory rights. “Permitting suit under Ex parte Young [under IGRA]
was thus inconsistent with the ‘detailed remedial scheme,’ – and the limited one –
that Congress had prescribed to enforce the State’s statutory duty to negotiate.”
122 S. Ct. at 1761 (quoting Seminole Tribe, 517 U. S. at 74).2 In enacting Title II,
Congress did not limit the availability of equitable remedies. To the contrary,
Congress expressly incorporated the remedies of Title VI of the Civil Rights Act of
1964. See 42 U.S.C. 12133; 29 U.S.C. 794a. In Franklin v. Gwinnett County
Public Schools, 503 U.S. 60 (1992), the Court held that the remedies available
under Title IX of the Education Amendments of 1972, 20 U.S.C. 1681, a statute
2 The courts of appeals had reached the same conclusion prior to Verizon Maryland. See Joseph A. v. Ingram, 275 F.3d 1253, 1263-1264 (10th Cir. 2002); Gibson v. Arkansas Dep’t of Corr., 265 F.3d 718, 721 (8th Cir. 2001); In re Ellett, 254 F.3d 1135, 1146 (9th Cir. 2001), cert. denied, 122 S. Ct. 1064 (2002); Sandoval v. Hagan, 197 F.3d 484, 501 (11th Cir. 1999), rev’d on other grounds, 532 U.S. 275 (2001); Ellis v. University of Kan. Med. Ctr., 163 F.3d 1186, 11961197 (10th Cir. 1998); Marie O. v. Edgar, 131 F.3d 610, 615-616 (7th Cir. 1997); Santee Sioux Tribe v. Nebraska, 121 F.3d 427, 432 (8th Cir. 1997).

-13modeled on Title VI, were governed by the “general rule” under which, “absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute.” Id. at 70-71. The holding of Franklin applies to Title II as well. See Barnes v. Gorman, No. 01-682, 2002 WL 1305773 (June 17, 2002).
While there was extensive dispute in the courts prior to Franklin about the availability of compensatory damages under these statutes, it was never disputed that a prospective injunction was an appropriate remedy for the implied right of action. See Lieberman v. University of Chicago, 660 F.2d 1185, 1188 (7th Cir. 1981), cert. denied, 456 U.S. 937 (1982); cf. Califano v. Yamasaki, 442 U.S. 682, 705 (1979) (“Absent the clearest command to the contrary from Congress, federal courts retain their equitable power to issue injunctions in suits over which they have jurisdiction.”); Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946) (“Unless a statute in so many words, or by a necessary and inescapable inference, restricts the court’s jurisdiction in equity, the full scope of that jurisdiction is to be recognized and applied.”). This is consistent with Title II’s legislative history, which states that Congress intended the “full panoply of remedies” to be available. H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 98 (1990); H.R. Rep. No. 485, Pt. 3, 101st Cong., 2d Sess. 52 (1990). Unlike the statute in Seminole Tribe, then, there is no evidence in the text or legislative history that Congress intended to

-14preclude the availability of prospective injunctive relief.3 Instead, as in Verizon
Maryland, Congress manifested no intent to limit equitable remedies and thus no
“intent to foreclose jurisdiction under Ex parte Young.” 122 S. Ct. at 1761.4
3. Verizon Maryland also undermines Walker’s rationale that the text of the
statute demonstrated that official-capacity suits were not available under Title II.
Walker held, first, that because Title II applies to “public entit[ies],” its duties do
not extend to the “employees or managers of these organizations” individually and
thus there was no “personal liability.” 213 F.3d at 346. But Walker correctly noted
that a state official sued in his official, as opposed to individual, capacity “stands in
for the agency he manages” and thus officials in their official capacities are simply
“proxies for the state.” Ibid. As such, the Court holds that the officials “have been
sued and could be liable only in their official capacities.” Ibid. But at the very end
of the opinion, with no analysis, the Court incorrectly summarizes its discussion as
3 Indeed, the House Judiciary Committee Report cited as an example of the remedies available under Title II, the Eighth Circuit’s decision in Miener v. Missouri, 673 F.2d 969 (8th Cir.), cert. denied, 459 U.S. 909 (1982), which held that an implied private right of action for damages and injunctive relief was available under Section 504 where officials were sued in their official capacities. See H.R. Rep. No. 485, supra, Pt. 3, at 52 n.62; see also 136 Cong. Rec. 11,471 (1990) (Rep. Hoyer) (same).
4 The Court in Seminole Tribe also relied on the unique nature of the duty required by IGRA — to negotiate and enter into a treaty — in concluding that Congress intended the State — and only the State — to be sued under IGRA. See 517 U.S. at 75. As Title II does not address an entity’s formal relations with other sovereigns, this circumstance has no application. See Gibson, 265 F.3d at 722.

-15holding that “the only proper defendant in a [sic] action under the provisions of the ADA at issue here is the public body as an entity” and thus Ex parte Young was not available. Id. at 347.5
a. Verizon Maryland counsels a different result. Although the Telecommunications Act of 1996 imposed duties on “the State commission,” the Court held that a suit could be brought against the state commissioners in their official capacities because “[t]he mere fact that Congress has authorized federal courts to review whether the Commission’s action” complies with federal law does not indicate “whom the suit is to be brought against – the state commission, the individual commissioners, or the carriers benefiting from the state commission’s order.” 122 S. Ct. at 1761.
Like the Telecommunications Act of 1996 in Verizon Maryland, Title II does not identify who the defendants should be. Instead, it provides that the “remedies, procedures, and rights set forth in section 794a of Title 29 [Section 504 of the Rehabilitation Act] shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of [Title II].” 42 U.S.C. 12133. Section 794a, in turn, provides that the “remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 [42
5 Subsequently, this Court described Walker as holding that suits under Title II may “proceed against the public entity – either in its own name, or through suits against its officers in their official capacities.” Stanley v. Litscher, 213 F.3d 340, 343 (2000).

-16U.S.C. 2000d et seq.] shall be available to any person aggrieved by any act or failure to act.” 29 U.S.C. 794a(a)(2).
Title VI does not contain an express private cause of action that identifies potential defendants; instead, the courts have implied one. See Alexander v. Sandoval, 532 U.S. 275, 279-280 (2001); Cannon v. University of Chicago, 441 U.S. 677, 696-697, 699-701 (1979). In cases decided prior to the enactment of the ADA, courts permitted suits under Title VI to be brought against government officials in their official capacities. For example, in United States v. Alabama, 791 F.2d 1450, 1457 (11th Cir. 1986), the court held “that injunctive relief against the Board itself [under Title VI] is so barred [by the Eleventh Amendment], but that such relief against Board members in their official capacities is permitted.”6
The same was true under Section 504 prior to the enactment of the ADA. In addition to a number of Supreme Court cases in which Section 504 actions were brought against government officials in their official capacities,7 courts of appeals had held that the implied private right of action under Section 504 could be enforced against state officials in their official capacities, noting that they were
6 See also, e.g., Bazemore v. Friday, 478 U.S. 385 (1986); Lau v. Nichols, 414 U.S. 563 (1974); Gomez v. Illinois State Bd. of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987) (“It would appear initially that the Superintendent might be held accountable for the appropriate declaratory and injunctive relief under Ex Parte Young, 209 U.S. 123 (1908), and its progeny.”). 7 See Alexander v. Choate, 469 U.S. 287 (1985); Honig v. Students of Cal. Sch. for the Blind, 471 U.S. 148 (1985); Smith v. Robinson, 468 U.S. 992 (1984); Campbell v. Kruse, 434 U.S. 808 (1977).

-17-
relying on the doctrine of Ex parte Young to avoid States’ Eleventh Amendment
immunity.8 Congress, of course, is assumed to know the law and is generally
deemed to have incorporated existing judicial interpretations when it adopts a
preexisting remedial scheme. See Lorillard v. Pons, 434 U.S. 575, 580-581
(1978); Bragdon v. Abbott, 524 U.S. 624, 645 (1998). By incorporating the
“remedies, procedures, and rights” of Section 504 and Title VI, Congress
8 See, e.g., Lussier v. Dugger, 904 F.2d 661, 670 n.10 (11th Cir. 1990) (“of course, the Eleventh Amendment does not bar Lussier’s claims for equitable relief under § 794 against defendants named in this case in their official capacities” (citing Ex parte Young)); Brennan v. Stewart, 834 F.2d 1248, 1255, 1260 (5th Cir. 1988) (discussing Ex parte Young at length); Miener v. Missouri, 673 F.2d 969, 982 (8th Cir. 1982) (finding Ex parte Young inapplicable because relief sought was not prospective); Helms v. McDaniel, 657 F.2d 800, 806 n.10 (5th Cir. 1981) (citing Ex parte Young), cert. denied, 455 U.S. 946 (1982). Other cases, while not making an express holding, routinely adjudicated Section 504 suits brought against government officials in their official capacities. See, e.g, Bonner v. Lewis, 857 F.2d 559 (9th Cir. 1988); Disabled In Action v. Sykes, 833 F.2d 1113 (3d Cir. 1987), cert. denied, 485 U.S. 989 (1988); Greater L.A. Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir. 1987); Parks v. Pavkovic, 753 F.2d 1397 (7th Cir.), cert. denied, 473 U.S. 906 (1985); Garrity v. Sununu, 752 F.2d 727 (1st Cir. 1984); Hurry v. Jones, 734 F.2d 879 (1st Cir. 1984); Plummer v. Branstad, 731 F.2d 574 (8th Cir. 1984); Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984); Phillips v. Thompson, 715 F.2d 365 (7th Cir. 1983); Joyner v. Dumpson, 712 F.2d 770 (2d Cir. 1983); Kentucky Ass’n for Retarded Citizens, Inc. v. Conn, 674 F.2d 582 (6th Cir.), cert. denied, 459 U.S. 1041 (1982); S-1 v. Turlington, 635 F.2d 342 (5th Cir.), cert. denied, 454 U.S. 1030 (1981); Baker v. Bell, 630 F.2d 1046 (5th Cir. 1980); Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); United Handicapped Fed’n v. Andre, 558 F.2d 413 (8th Cir. 1977); Kampmeier v. Nyquist, 553 F.2d 296 (2d Cir. 1977).

-18-
incorporated the right to sue government officials in their official capacities into
Title II.
b. The holding of Verizon Maryland, and its implicit rejection of the
rationale of Walker, is consistent with the fundamental legal doctrine that a suit
against a state official in his or her official capacity are, except for purposes of
Eleventh Amendment immunity, suits against the entity itself. “Official-capacity
suits * * * ‘generally represent only another way of pleading an action against an
entity of which an officer is an agent.’ As long as the government entity receives
notice and an opportunity to respond, an official-capacity suit is, in all respects
other than name, to be treated as a suit against the entity. It is not a suit against the
official personally, for the real party in interest is the entity.” Kentucky v. Graham,
473 U.S. 159, 165 (1985); see also Hafer v. Melo, 502 U.S. 21, 25 (1991). Thus,
by definition, an official in his or her official capacity is no more free to violate
federal law than the entity itself.
As the Sixth Circuit explained in rejecting the argument that the text of Title
II allows suits only against an entity, and not its officials in their official capacities:
The problem with this argument is that it misrepresents Ex parte Young, insofar as it fails to recognize the nuances [of the doctrine]. The Court in [Ex parte Young] was not saying that the official was stripped of his official capacity for all purposes, but only for purposes of the Eleventh Amendment. This is evident in Ex parte Young itself: though the official was not “the state” for purposes of the Eleventh Amendment, he nevertheless was held responsible in his official capacity for enforcing a state law that violated the Fourteenth Amendment, which by its terms applies only to “states.” And in rejecting the defendants’ Ex parte Young argument, we make a similar distinction: an official who violates Title II of the ADA does not represent “the state” for purposes of the Eleventh Amendment, yet he or she

-19nevertheless may be held responsible in an official capacity for violating Title II, which by its terms applies only to “public entit[ies].” Carten v. Kent State Univ., 282 F.3d 391, 395-396 (6th Cir. 2002) (citations omitted). That this constitutes the proper understanding of official capacity suits is confirmed by assessing the way the statutes apply to the practices of an entity covered by these statutes. For example, if a State is obliged under Title II to permit a person who is blind to enter a public building with her guide dog, then it would be unlawful for a state official to promulgate a rule to the contrary, or for a state employee to enforce that rule. For both “[t]he States and their officers are bound by obligations imposed * * * by federal statutes that comport with the constitutional design.” Alden, 527 U.S. at 755 (emphasis added). If a lawsuit were brought to enjoin that state policy or practice as violating Title II, it would be immaterial (again except for the Eleventh Amendment) whether the individual sued the State itself or the officials or employees in their official capacities. Under rules of equity, if the State was sued and enjoined, all its officers and agents would be automatically covered by the injunction. See Fed. R. Civ. P. 65(d) (every injunction is binding “upon the parties to the action, their officers, agents, servants, employees, and attorneys”). If the governor or an attorney general is sued in his official capacity, an injunction entered against him likewise binds other government officials as if the suit had been brought against the State. See ACLU v. Johnson, 194 F.3d 1149, 1163 (10th Cir. 1999); Hendrickson v. Griggs, 672 F.

-20Supp. 1126, 1142 n.26 (N.D. Iowa 1987). Thus, Title II’s requirement that “public entit[ies]” not discriminate extends to the officials in their official capacities who are acting for the entity.9
For this reason, the other courts of appeals have held in a variety of statutory settings that Ex parte Young actions are available even when the statute imposes a duty on an entity, and not expressly on the entity’s officials. See, e.g., In re Ellett, 254 F.3d 1135, 1146 (9th Cir. 2001), cert. denied, 122 S. Ct. 1064 (2002); Randolph v. Rodgers, 253 F.3d 342, 348 (8th Cir. 2001); Telespectrum, Inc. v. Public Serv. Comm’n, 227 F.3d 414, 420 (6th Cir. 2000). The Supreme Court’s decision in Verizon Maryland confirms this conclusion.
4. The Supreme Court has “frequently acknowledged the importance of having federal courts open to enforce and interpret federal rights.” Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 293 (1997) (O’Connor, J., joined by Scalia, J., and Thomas, J., concurring in part and concurring in judgment). As there is no evidence that Congress intended to foreclose Title II suits proceeding against state
9 This Court reached a similar conclusion in Smith v. Metropolitan School District, 128 F.3d 1014 (1997), cert. denied, 524 U.S. 951 (1998). Smith involved a suit under Title IX brought against the school district and various school officials. This Court held that the suit against the school principal in his official capacity should be dismissed because the principal was not a sufficiently senior official to be treated as an alter ego of the school district. Id. at 1020-1021. This Court suggested, however, that a suit brought against members of the school board in their official capacities would have been permitted because it would have been the same as a suit against the school district itself. Id. at 1021 n.3.

-21officials in their official capacities, this Court should join the courts of appeals that have held after Seminole Tribe that individuals could rely on Ex parte Young to enforce Title II against a state official in his official capacity. See, e.g., Carten, 282 F.3d at 395-396; Randolph v. Rodgers, 253 F.3d 342, 346-348 (8th Cir. 2001); Roe No. 2 v. Ogden, 253 F.3d 1225, 1233 (10th Cir. 2001); J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1287 (10th Cir. 1999); Nelson v. Miller, 170 F.3d 641, 646647 (6th Cir. 1999); Armstrong v. Wilson, 124 F.3d 1019, 1025-1026 (9th Cir. 1997), cert. denied, 524 U.S. 937 (1998); cf. Olmstead v. L.C., 527 U.S. 581, 589590 (1999) (adjudicating on the merits Title II suit against state official in official capacity for injunctive relief).

-22-
CONCLUSION
The district court’s holding that this suit could not proceed against the
defendant in his official capacity for prospective injunctive relief should be
reversed and the case remanded for further proceedings.
Respectfully submitted,
RALPH F. BOYD, JR. Assistant Attorney General
JESSICA DUNSAY SILVER SARAH E. HARRINGTON
Attorneys Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue, PHB 5020 Washington, DC 20530 (202) 305-7999

CERTIFICATE OF COMPLIANCE I certify, pursuant to Fed. R. App. P. 29(d), that the attached Brief for the United States as Amicus Curiae is proportionally spaced, has a typeface of 14 points, and contains 5,768 words.

November 29, 2002

________________________ SARAH E. HARRINGTON
Attorney

CERTIFICATE OF SERVICE
I certify that two copies of the foregoing Brief for the United States as
Amicus Curiae were served on the following counsel of record on the 29th Day of
November, 2002:
Bernard Shapiro Eliot Abarbanel Prairie State Legal Services, Inc. 975 N. Main Street Rockford, IL 61103
Deborah L. Ahlstrand Office of the Attorney General Civil Appeals Division 100 W. Randolph Street State of Illinois Center Chicago, IL 60601
____________________________ SARAH E. HARRINGTON
Attorney U.S. Department of Justice Civil Rights Division 950 Pennsylvania Ave. NW, PHB 5020 Washington, DC 20350 (202) 305-7999

 </s> No. 02-3657
IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT __________________________
DONNA RADASZEWSKI, Guardian, on behalf of ERIC RADASZEWSKI, Plaintiff-Appellant,
v.
JACKIE GARNER, in her official capacity as Director of the Illinois Department of Public Aid,
Defendant-Appellee. __________________________
ON APPEAL FROM THE U.S. DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
THE HONORABLE JOHN W. DARRAH __________________________
BRIEF OF AMICI CURIAE ACCESS LIVING, THE AMERICAN CIVIL LIBERTIES UNION OF ILLINOIS, EQUIP FOR EQUALITY, INC. AND THE
ILLINOIS NETWORK OF CENTERS FOR INDEPENDENT LIVING IN SUPPORT OF PLAINTIFFS-APPELLANTS AND REQUESTING REVERSAL
Max Lapertosa Kenneth M. Walden Access Living 614 West Roosevelt Road Chicago, IL 60607
John W. Whitcomb Laura J. Miller Barry Taylor Equip for Equality, Inc. 11 East Adams Street, Suite 1200 Chicago, IL 60603
Benjamin S. Wolf The Roger Baldwin Foundation of the American Civil Liberties Union of Illinois 180 North Michigan Avenue, Suite 2300 Chicago, IL 60601
Attorneys for Amici

CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
The undersigned counsel of record for Amici hereby furnishes the following information pursuant to this Court’s Rule 26.1:
1. The full names of Amici represented by counsel are as follows: Access Living of Metropolitan Chicago, the American Civil Liberties Union of Illinois, Equip for Equality, Inc., and the Illinois Network of Centers for Independent Living.
2. The full names of all law firms whose attorney represent Amici listed above are as follows: Access Living of Metropolitan Chicago, the American Civil Liberties Union of Illinois, and Equip for Equality, Inc.
3. All Amici are not-for-profit corporations.

Dated November 26 2002.

RESPECTFULLY SUBMITTED,

_______________________________________ One of the Attorneys for Amici

Max Lapertosa Kenneth M. Walden Access Living 614 West Roosevelt Road Chicago, IL 60607 (312) 253-7000

Barry Taylor Laura J. Miller John W. Whitcomb Equip for Equality, Inc. 11 East Adams Street Suite 1200 Chicago, IL 60603 (312) 341-0022

Benjamin S. Wolf The Roger Baldwin Foundation of the American Civil Liberties Union of Illinois 180 North Michigan Avenue Suite 2300 Chicago, IL 60601 (312) 201-9740

TABLE OF CONTENTS TABLE OF AUTHORITIES .......................................................................................................... ii I. STATEMENTS OF INTEREST OF AMICI CURIAE.......................................................1
A. Access Living...........................................................................................................1 B. American Civil Liberties Union of Illinois..............................................................1 C. Equip for Equality....................................................................................................2 D. Illinois Network of Centers for Independent Living................................................3 II. SUMMARY OF ARGUMENT ...........................................................................................3 III. ARGUMENT.......................................................................................................................5 A. INDIVIDUALS WITH DISABILITIES MAY MAINTAIN AN ACTION FOR
PROSPECTIVE INJUNCTIVE RELIEF AGAINST STATE OFFICIALS FOR VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT...................5 1. Under Ex Parte Young, the Eleventh Amendment Does Not Bar
Actions to Enforce Federal Law Prospectively Against State Officials ......5 2. State Officials are Proper Defendants in an Action to Enforce Title II ......8 3. Title II Neither Implicates “Special State Sovereignty Interests” Nor
Contains a Comprehensive Remedial Scheme ..........................................12 B. PLAINTIFF DOES NOT ASK DEFENDANT TO CREATE A “NEW”
SERVICE BUT RATHER TO PROVIDE EXISTING NURSING SERVICES IN THE MOST INTEGRATED SETTING – HIS HOME ...................................14 IV. CONCLUSION..................................................................................................................20 ATTACHMENT
i

TABLE OF AUTHORITIES
Cases
Alden v. Maine, 527 U.S. 706 (1999)....................................................................................... 7, 11 Alexander v. Choate, 469 U.S. 287 (1985)............................................................................. 14, 17 Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1998). ....................................................... 9 American Soc=y of Consultant Pharmacists v. Patla, 138 F. Supp. 2d 1062 (N.D. Ill. 2001)..... 17 Antrican v. Odom, 290 F.3d 178 (4th Cir.),
cert. denied, 2002 U.S. LEXIS 7803 (Oct. 21, 2002) ..................................................... 8, 11, 13 Armstrong v. Wilson, 124 F.3d 1019 (9th Cir. 1997), cert. denied, 524 U.S. 937 (1998) ............. 9 B.H. v. Johnson, 715 F. Supp. 1387 (N.D. Ill. 1989). .................................................................... 2 Board of Trustees v. Garrett, 531 U.S. 356 (2001)...................................................................... 6-7 Bonnie L. v. Bush, 180 F. Supp. 2d 1321 (S.D. Fla. 2001) .......................................................... 13 Bradley v. Arkansas Dep=t of Educ., 189 F.3d 745 (8th Cir. 1999),
rev=d en banc in part, Jim C. v. Arkansas Dep=t of Educ., 235 F.3d 1079 (8th Cir. 2000), cert. denied, 533 U.S. 949 (2001) ............................................................................................. 13 Bragg v. West Virginia Coal Mining Ass=n, 248 F.3d 275 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002) ........................................................................................... 11 Brennan v. Stewart, 834 F.2d 1248 (5th Cir. 1988)........................................................................ 9 Byrd v. Corporacion Forestal y Industrial de Olancho S.A., 182 F.3d 380 (5th Cir. 1999)......... 12 Carten v. Kent State Univ., 282 F.3d 391 (6th Cir. 2002) ...................................................... 10, 13 Chiudian v. Philippine Nat=l Bank, 912 F.2d 1095 (9th Cir. 1990)............................................. 12 Cox v. City of Dallas, 256 F.3d 281 (5th Cir. 2001) .................................................................... 13 Department of Transp. v. Paralyzed Veterans of America, 477 U.S. 597 (1986) ........................ 12 Devines v. Maier, 728 F.2d 876 (7th Cir. 1984)............................................................................. 9
ii

Doe v. Chiles, 136 F.3d 709 (11th Cir. 1998)............................................................................... 13 Doe v. Rowe, 156 F. Supp. 2d 35 (D. Me. 2001).……………………………………………….10 Edelman v. Jordan, 415 U.S. 651 (1974)........................................................................................ 6 Elephant Butte Irrigation Dist. v. Department of the Interior, 160 F.3d 602 (10th Cir. 1998)..... 11 Ellis v. University of Kan. Med. Ctr., 163 F.3d 1186 (10th Cir. 1998)........................................ 14 Erickson v. Board of Governors, 207 F.3d 945 (7th Cir. 2000) ..................................................... 9 Ex Parte Young, 209 U.S. 123 (1908) ................................................................................... passim Gibson v. Arkansas Dep=t of Correction, 265 F.3d 718 (8th Cir. 2001) ............................... 10, 14 Green v. Mansour, 474 U.S. 64 (1985)........................................................................................ 7-8 Gregory v. Administrative Officers of N.J. Cts., 168 F. Supp. 2d 319 (D.N.J. 2001).................. 11 Hahn v. Linn Cty., 130 F. Supp. 2d 1036 (N.D. Ia. 2001)............................................................ 18 Helen L. v. DiDario, 46 F.3d 325 (3rd Cir. 1995) .................................................................. 15, 17 Henrietta D. v. Giuliani, 81 F. Supp. 2d 425 (E.D.N.Y. 2000) .................................................... 18 Idaho v. Coeur d=Alene Tribe, 521 U.S. 261 (1997) ............................................................... 6, 12 J.B. ex rel Hart v. Valdez, 186 F.3d 1280 (10th Cir. 1999)............................................................ 9 Jungquist v. Sheikh Sultan bin Khalifa al Nahyan, 115 F.3d 1020 (D.C. Cir. 1997)................... 12 K.L. v. Edgar, 948 F. Supp. 44 (N.D. Ill. 1996) ............................................................................. 2 Kentucky v. Graham, 473 U.S. 159 (1985). ................................................................................... 7 Lewis v. New Mexico Dep=t of Health, 261 F.3d 970 (10th Cir. 2001)...................................... 13 Lewis v. New Mexico Dep=t of Health, 94 F. Supp. 2d 1217 (D.N.M. 2000),
aff’d in part, 261 F.3d 970 (10th Cir. 2001) ............................................................................. 10 Makin v. Hawaii, 114 F. Supp. 2d 1017 (D. Haw. 1999) ............................................................. 15
iii

Marbury v. Madison, 5 U.S. (5 Cranch) 137 (1803)....................................................................... 8 Marie O. v. Edgar, 131 F.3d 610 (7th Cir. 1997) ......................................................................... 13 Medical Bd. v. Hason, 2002 U.S. LEXIS 8467 (Nov. 18, 2002).................................................... 6 Milliken v. Bradley, 433 U.S. 267 (1977). ..................................................................................... 6 MSA Realty Corp. v. Illinois, 990 F.2d 288 (7th Cir. 1993) .......................................................... 7 Nelson v. Miller, 170 F.3d 641 (6th Cir. 1999) .............................................................................. 9 Northeast Ill. Regional Commuter R.R. Corp. v. Hoey Farina & Downes,
212 F.3d 1010 (7th Cir. 2000) .................................................................................................... 8 Olmstead v. L.C., 527 U.S. 581 (1999) .................................................................. 4, 14, 15, 17, 19 Perez v. Ledesma, 401 U.S. 82 (1971) ........................................................................................... 8 Radaszewski v. Garner, 2002 U.S. Dist. LEXIS 17077 (N.D. Ill. Sept. 11, 2002) ............... passim Randolph v. Rogers, 253 F.3d 342 (8th Cir. 2001) ................................................................ 10, 11 Robinson v. Kansas, 117 F. Supp. 2d 1124 (D. Kan. 2000) ......................................................... 13 Rodriguez v. City of New York, 197 F.3d 611 (2nd Cir. 1999)............................................. 18, 19 Rolland v. Cellucci, 52 F. Supp. 2d 231 (D. Mass. 1999) ............................................................ 15 Rosie D. v. Swift, 2002 U.S. App. LEXIS 23147 (1st Cir. Nov. 7, 2002) ............................... 7, 13 Seminole Tribe v. Florida, 517 U.S. 44 (1996). ..................................................................... 12, 13 Sofamor Danek Group v. Brown, 124 F.3d 1179 (9th Cir. 1997) ................................................ 13 Stevens v. Illinois Dep=t of Transp., 210 F.3d 732 (7th Cir. 2000) ............................................... 9 Verizon Md. v. Public Serv. Comm=n, 535 U.S. 635, 122 S. Ct 1753 (2002) ........................ 5, 14 Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000),
cert. denied sub nom, United States v. Snyder, 531 U.S. 1190 (2001)......................... 5, 8, 9, 10 Westside Mothers v. Haveman, 289 F.3d 852 (6th Cir. 2002) ................................................. 8, 13
iv

Will v. Michigan Dep=t of State Police, 491 U.S. 58 (1989)......................................................... 7 Williams v. Wasserman, 937 F. Supp. 524 (D. Md. 1996)………………………………………15
Statutes Americans with Disabilities Act
42 U.S.C. § 12101(3). ............................................................................................................... 15 42 U.S.C. § 12101(a)(2).............................................................................................................. 5 42 U.S.C. § 12132....................................................................................................................... 6 Developmental Disabilities Assistance and Bill of Rights Act 42 U.S.C. § 15001(16). ............................................................................................................... 3 42 U.S.C. § 15043………………………………………………………………………………3 Civil Rights Act of 1964, 42 U.S.C. § 12133……………………………………………………14 Rehabilitation Act 29 U.S.C. § 794(a) .................................................................................................................... 14 29 U.S.C. § 794(b)(1)(A)……………………………………………………………………...12 29 U.S.C. § 796f. ........................................................................................................................ 1 Title XIX of the Social Security Act 42 U.S.C. § 1396n(c)(4)(B). ..................................................................................................... 16 42 U.S.C. § 1396r(b)(4)(C)(i) ................................................................................................... 18
Rules Fed. R. Civ. Proc. 65(d) ................................................................................................................ 11
Regulations 28 C.F.R. § 35.130(d) ................................................................................................................... 15
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28 C.F.R. § 41.51(d) ..................................................................................................................... 16 45 C.F.R. § 84.4(2) ....................................................................................................................... 16 Legislative History H.R. Rep. No. 485 pts. 2-3, 101st Cong., 2nd Sess. 98 (1990)..................................................... 18 Other Authorities Home and Community Based Resources Network, Medicaid Long-Term Expenditures
1996-2001, <www.hcbs.org> ................................................................................................... 18 J. Tilly et al., Urban Institute, Long-Term Care: Consumers, Providers and Financing
(Mar. 2001) ............................................................................................................................... 18 R. Newcomer et al., Medicaid Home and Community-Based Long Term Care in Illinois
(Nov. 1999) ............................................................................................................................... 16
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I. STATEMENTS OF INTEREST OF AMICI CURIAE A. Access Living Access Living is a Center for Independent Living for people with disabilities established
under the Rehabilitation Act, 29 U.S.C. § 796f. It is the largest independent living center in Illinois and one of the largest in the nation. Access Living is governed and staffed by a majority of people with disabilities, including physical and cognitive disabilities. Its statutorily-mandated mission includes assuring that people with disabilities have equal access to and participation in services, programs, activities, resources and facilities, whether public or private. See id. § 796f4(b)(1)(D).
Access Living has been actively involved in ensuring the rights of people with disabilities to be free from unwarranted isolation and confinement. Access Living’s Community Integration Project has over the past five years enabled over 100 people with disabilities to move out of segregated nursing homes and into their own homes by helping them access home-andcommunity-based supports and services. These services are almost always more cost-effective than nursing homes. Eric Radaszewski is typical of the people Access Living has helped to move into the community. Because of its unique perspective as an organization of and for people with disabilities and its role in integrating people who, like Mr. Radaszewski, would otherwise be confined to nursing homes, Access Living believes its views will be of service to the Court.
B. American Civil Liberties Union of Illinois The American Civil Liberties Union (ACLU) of Illinois, a statewide organization with
1

approximately 15,000 members, is dedicated to preserving the Bill of Rights and enforcing laws to protect civil rights and liberties. The ACLU of Illinois and its parent organization, the American Civil Liberties Union, have had a long history of defending the rights of people who depend on government services and institutions, including people with disabilities. In the U.S. District Court for the Northern District of Illinois, for example, ACLU staff and cooperating attorneys have participated in a constitutional challenge to the conditions and treatment provided to patients in state-operated psychiatric facilities in Illinois, K.L. v. Edgar, 948 F. Supp. 44 (N.D. Ill. 1996), and have challenged the care and services delivered to the state’s foster children, B.H. v. Johnson, 715 F. Supp. 1387 (N.D. Ill. 1989). Because this case involves important issues affecting the lives of thousands of people with disabilities, the ACLU of Illinois believes its views will be of service to this Court.
C. Equip for Equality Founded in 1985, Equip for Equality is an independent, not-for-profit organization that
administers federally-mandated protection and advocacy services for Illinois. Its mission is to advance the human and civil rights of children and adults with physical and/or mental disabilities in Illinois. To this end, Equip for Equality provides information, referral, self-advocacy assistance and legal representation to people with disabilities throughout Illinois. Its public policy program promotes legislative reform, public policies and programs benefiting people with disabilities. Equip for Equality also has broad state and federal oversight powers over both public and private service providers for people with disabilities.
One of the statutory mandates under which Equip for Equality operates is the Developmental Disabilities Assistance and Bill of Rights Act, 42 U.S.C. §§ 15001 – 15115. The
2

developmental disability protection and advocacy system of which Equip for Equality is a part was created by Section 15043 of the Act. One of the Act’s main goals is to “provid[e] individuals with developmental disabilities with the information, skills, opportunities and support to … live in homes and communities in which such individuals can exercise their full rights and responsibilities as citizens.” Id. § 15001(16). Because of its unique perspective as the legal advocate for people with disabilities in Illinois, Equip for Equality believes its views will be of service to the Court.
D. Illinois Network of Centers for Independent Living The Illinois Network of Centers for Independent Living (INCIL) is a statewide
membership organization comprised of, governed by and representing all 24 Centers for Independent Living serving Illinois. INCIL coordinates the activities and efforts of these centers to promote the needs and priorities of the people with disabilities they serve. Consistent with the missions and activities of its member centers, INCIL works to ensure that people with disabilities are fully integrated into their communities and, specifically, that they have the opportunity to avoid confinement in nursing homes and receive support in their own homes. Because of its unique perspective as a statewide representative of and advocate for people with disabilities who live or wish to live independently, INCIL believes its views will be of service to this Court. II. SUMMARY OF ARGUMENT
Eric Radaszewski is typical of the thousands of children and adults with disabilities in Illinois on whose behalf Amici have advocated so that they can live in the community. He has severe disabilities – a result of a December 1993 stroke that followed surgery and chemotherapy for brain cancer – and requires round-the-clock nursing care. Until 2000, Mr. Radaszewski
3

received 16 hours per day of in-home nursing care from the state, with his parents caring for him the rest of the day. In that year, however, Defendant, the Director of the Illinois Department of Public Aid, cut these services to five hours, which are inadequate to allow Mr. Radaszewski to remain in his home. Mr. Radaszewski remains eligible for more extensive nursing care, but to receive it, he would have to leave his family and enter a nursing home.
Mr. Radaszewski’s dilemma is shared by thousands of people with physical, psychiatric, and developmental disabilities in Illinois. Like Mr. Radaszewski, they are “persons who can handle and benefit from community settings,” Olmstead v. L.C., 527 U.S. 581, 600 (1999), but nevertheless can access support services in segregated institutions and nursing homes only. Thus, to get the assistance they need, people with disabilities must “relinquish participation in community life” and be confined to institutions and nursing homes. This, the Supreme Court has held, is illegal discrimination. Id.
Nevertheless, the District Court below dismissed Mr. Radaszewski’s case on two grounds. Radaszewski v. Garner, 2002 U.S. Dist. LEXIS 17077 (N.D. Ill. Sept. 11, 2002). First, the Court dismissed Mr. Radaszewski’s claim under Title II of the Americans with Disabilities Act because, it held, Title II does not allow suits against state officers in their official capacity. Id. at *5. Second, the Court dismissed Mr. Radaszewski’s claim under Section 504 of the Rehabilitation Act – which, the Court found, was identical to his Title II claim – because it believed that nursing, when provided in a person’s home as opposed to a nursing home, was a “new” service and not required under Section 504. Id. at *6.
This brief argues the District Court should be reversed on both counts. First, the Supreme Court has effectively overruled the Seventh Circuit precedent the District Court
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followed in dismissing Mr. Radaszewski’s ADA claim. Second, because Mr. Radaszewski does not seek to change the substance of the nursing services Defendant provides, but only their location to an integrated community setting, he is not asking Defendant to provide a service that is not currently provided to people with disabilities. Thus, his claim for disability-based discrimination falls within the integration mandates of the ADA and Section 504. These are clear errors of law which require reversal. III. ARGUMENT
A. INDIVIDUALS WITH DISABILITIES MAY MAINTAIN AN ACTION FOR PROSPECTIVE INJUNCTIVE RELIEF AGAINST STATE OFFICIALS FOR VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT_________ 1. Under Ex Parte Young, the Eleventh Amendment Does Not Bar Actions to Enforce Federal Law Prospectively Against State Officials______________ In dismissing Mr. Radaszewski’s claim under Title II of the Americans with Disabilities
Act, 42 U.S.C. § 12132, the District Court below relied on this Court’s decision in Walker v. Snyder, 213 F.3d 344, 346-47 (7th Cir. 2000), cert. denied sub nom, United States v. Snyder, 531 U.S. 1190 (2001). Radaszewski v. Garner, 2002 U.S. Dist. LEXIS 17077, *5 (N.D. Ill. Sept. 11, 2002). However, the District Court’s reliance on Walker and its rejection of the applicability to Title II of Ex Parte Young, 209 U.S. 123 (1908) directly contravenes two recent Supreme Court decisions as well as nearly one hundred years of federal jurisprudence.
Last term, in Verizon Md. v. Public Serv. Comm=n, 535 U.S. 635, 122 S. Ct 1753 (2002) (Scalia, J.), the Supreme Court upheld the federal courts’ jurisdiction to enforce federal law against responsible state officials under the doctrine of Ex Parte Young, 209 U.S. 123 (1908). “In determining whether the doctrine of Ex Parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a >straightforward inquiry into whether [the] complaint alleges
5

an ongoing violation of federal law and seeks relief properly characterized as prospective.’”1 Id.
at 1760 (quoting Idaho v. Coeur d=Alene Tribe, 521 U.S. 261, 296 (1997) (O=Connor, J.,
concurring)).
In Board of Trustees v. Garrett, 531 U.S. 356 (2001), the Supreme Court affirmed
application of this doctrine to actions to enforce the Americans with Disabilities Act. While
holding that Congress lacked authority to abrogate the States= Eleventh Amendment immunity,
id. at 360, the Court included the caveat that individual enforcement actions against state
officials for prospective injunctive relief may proceed:
Our holding here that Congress did not validly abrogate the States= sovereign immunity from suits by private individuals for money damages under Title I does not mean that people with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages as well as by private individuals in actions for relief under Ex Parte Young, 209 U.S. 123 (1908). Id. at 374 n. 9 (emphasis added).2
This re-affirmation of Ex Parte Young is equally clear in the Court=s thrice-repeated
limitation of its holding to cases seeking money damages, beginning with the majority opinion=s
first sentence. Id. at 360 (AWe decide here whether employees of the State of Alabama may
recover money damages by reason of the State=s failure to comply with the provisions of Title I
...@); see also id. at 363 (AWe granted certiorari ... on the question whether an individual may sue
1 This includes relief that has an “ancillary effect on the state=s treasury” when necessary to ensure future compliance with federal law. Edelman v. Jordan, 415 U.S. 651, 667 (1974); Milliken v. Bradley, 433 U.S. 267, 289 (1977).
2 The Supreme Court has granted certiorari on the question whether Congress validly abrogated the States’ Eleventh Amendment immunity under Title II of the ADA. Medical Bd. v. Hason, 2002 U.S. LEXIS 8467 (Nov. 18, 2002).
6

a State for money damages in federal court under the ADA@) & 374 (A[I]n order to authorize private individuals to recover money damages against the States ...@) (emphases added).3
The Court=s embracement of Ex Parte Young is consistent with nearly a century of jurisprudence. See Rosie D. v. Swift, 2002 U.S. App. LEXIS 23147, *7 (1st Cir. Nov. 7, 2002). The doctrine holds that federal courts may enjoin state officials to conform their conduct to federal law, regardless of whether a cause of action exists against the State itself. Under this doctrine, a state official who acts in violation of the U.S. Constitution or federal laws has acted
outside his or her role as a State officer and is stripped of the State=s immunity for that illegal act. As this Court has held,
The states= immunity from federal suit does not extend to their officials sued for violations of federal law; illegal actions by state officials are not the acts of the state and do not share in its immunity. The state official who acts in violation of the federal Constitution is “stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.” ... Under Young, state officials may be sued in their official capacities for injunctive relief, although they may not be sued for money damages. MSA Realty Corp. v. Illinois, 990 F.2d 288, 291 (7th Cir. 1993) (quoting Ex Parte Young, 209
U.S. at 159-60); see also Will v. Michigan Dep=t of State Police, 491 U.S. 58, 71 n. 10 (1989) (suits against state officials “are not treated as actions against the State”); Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985).
This doctrine remains a vital principle that “gives life to the Supremacy Clause. Remedies designed to end a continuing violation of federal law are necessary to permit the federal courts to vindicate the federal interest in assuring the supremacy of that law.” Green v.
3 Thus, this important limitation is decidedly not, as the District Court below opined, “dictum contained in a footnote”. Radaszewski, 2002 U.S. Dist. LEXIS at *5.
7

Mansour, 474 U.S. 64, 68 (1985); see also Alden v. Maine, 527 U.S. 706, 747-48 (1999) (ACertain suits for declaratory and injunctive relief against state officers must ... be permitted if the Constitution is to remain the supreme law of the land@). This Court has recognized that AEx Parte Young was the culmination of efforts ... to harmonize the principles of the Eleventh Amendment with the effective supremacy of rights and powers secured elsewhere in the Constitution.@ Northeast Ill. Regional Commuter R.R. Corp. v. Hoey Farina & Downes, 212 F.3d 1010, 1016 (7th Cir. 2000) (quoting Perez v. Ledesma, 401 U.S. 82 (1971)); see also Westside Mothers v. Haveman, 289 F.3d 852, 860 (6th Cir. 2002) (A[A] suit that claims that a state official=s actions violate the constitution or federal law is not deemed a suit against the state@); Antrican v. Odom, 290 F.3d 178, 184 (4th Cir.), cert. denied, 2002 U.S. LEXIS 7803 (Oct. 21, 2002) (Ex Parte Young “is designed to preserve the constitutional structure established by the Supremacy Clause”).4
2. State Officials are Proper Defendants in an Action to Enforce Title II In Walker v. Snyder, 213 F.3d at 346-47, this Court held that Title II could not be enforced under the Ex Parte Young doctrine. In a decision that pre-dated the Supreme Court=s decision in Garrett, this Court reasoned that Title II=s use of the term “public entity” precluded state officials from being proper defendants in a Title II enforcement action. Whatever its previous validity, Walker now stands in conflict with the Supreme Court=s decision in Garrett5
4 Cf. Marbury v. Madison, 5 U.S. (5 Cranch) 137, 163 (1803) (AThe government of the United States has been emphatically termed a government of laws and not men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for a violation of a vested legal right.@)
5 Although Garrett concerned Title I of the ADA, its affirmation of Ex Parte Young applies with equal force to Title II. Indeed, Walker itself relies on Title I cases and thus does not
8

as well as the Eighth Circuit ruling upon which Walker relies. As such, this Court should hold that Walker is no longer valid law.6
Even at the outset, Walker conflicted with a plethora of earlier cases allowing Ex Parte Young actions against public officials under Title II and other similarly-worded civil rights laws, such as Section 504 of the Rehabilitation Act and Title VI of the Civil Rights Act. See e.g. J.B. ex rel Hart v. Valdez, 186 F.3d 1280, 1286-87 (10th Cir. 1999); Nelson v. Miller, 170 F.3d 641, 646-47 (6th Cir. 1999); Armstrong v. Wilson, 124 F.3d 1019, 1025-26 (9th Cir. 1997), cert. denied, 524 U.S. 937 (1998); Brennan v. Stewart, 834 F.2d 1248, 1251-53 & 1260 (5th Cir. 1988).
Walker based its ruling that state officials are improper defendants in a Title II action on Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n. 8 (8th Cir. 1998). Although it cited Alsbrook for the proposition that no personal liability exists under Title II, Walker concluded from this that “institutional liability is exclusive,” 213 F.3d at 346, and on this basis rejected Ex Parte Young=s application to Title II. Id. at 347 (“[T]he only proper defendant in an action under the provisions of the ADA at issue here is the State itself.”).
Yet since Garrett, the Eighth Circuit has clarified that Alsbrook never proscribed Title II enforcement actions under Ex Parte Young. In Randolph v. Rogers, 253 F.3d 342 (8th Cir. 2001), the Court soundly rejected the interpretation of Alsbrook which Walker adopted:
distinguish between Title I and Title II for Eleventh Amendment immunity purposes. 213 F.3d at 347 (citing Erickson v. Board of Governors, 207 F.3d 945 (7th Cir. 2000) & Stevens v. Illinois Dep=t of Transp., 210 F.3d 732 (7th Cir. 2000)).
6 Although generally one panel cannot overturn another panel=s decision, this Court has authorized such reversals when the Supreme Court has effected an intervening change in law rendering the earlier decision erroneous. Devines v. Maier, 728 F.2d 876, 880 (7th Cir. 1984).
9

The State finally argues that because the statutory language of the ADA provides only for “public entity@ liability, an Ex Parte Young claim against state officials in their individual capacities, premised upon an ADA violation, must fail. We agree that the public-entity limitation precludes ADA claims against state officials in their individual capacities, a conclusion we drew in Alsbrook ... but we never have held that the public-entity limitation in the ADA prohibits Ex parte Young claims against state officers in their official capacities. Nor have we held that the underlying federal statute relied upon in an Ex parte Young claim must provide explicit statutory authority to sue a state official in his official capacity. Ex parte Young simply permits an injunction against a state official in his official capacity to stop an ongoing violation of federal law.
Id. at 348 (emphasis added).
And in Gibson v. Arkansas Dep=t of Correction, 265 F.3d 718 (8th Cir. 2001), the Eighth
Circuit stated that “[i]n Alsbrook, we did not address whether an action under Ex parte Young
was available because the plaintiff=s claim for injunctive relief was moot ... Moreover, our
decision in Alsbrook predated the Supreme Court=s decision in Garrett.” Id. at 720 n. 2
(emphasis added).7 The Sixth Circuit has similarly held that Garrett preserves Ex Parte Young
actions to enforce Title II. Carten v. Kent State Univ., 282 F.3d 391, 396-97 (6th Cir. 2002); see
also Doe v. Rowe, 156 F. Supp. 2d 35, 57 n. 34 (D. Me. 2001) (rejecting Walker in light of
Garrett); Gregory v. Administrative Officers of N.J. Cts., 168 F. Supp. 2d 319, 329 (D.N.J. 2001)
(same).
It is not inconsistent with Title II=s language to hold state officers liable in their official
capacities. Both “[t]he States and their officers are bound by obligations” imposed by federal
7 Garrett and these subsequent Eighth Circuit rulings also nullify the only other reported decision Amici know of that rejects Ex Parte Young=s applicability to Title II, Lewis v. New Mexico Dep=t of Health, 94 F. Supp. 2d 1217, 1232 (D.N.M. 2000), aff’d on other grounds, 261 F.3d 970 (10th Cir. 2001). As in Walker, Lewis is based on the assumption that ATitle II claims cannot be maintained against individual defendants@, which in turn is based on Alsbrook. Id. at 1230. Therefore, the Eighth Circuit=s subsequent holdings in Randolph and Gibson negate Lewis as well.
10

law. Alden, 527 U.S. at 747 (emphasis added). When a claim is brought solely to enjoin prospective state action, it is irrelevant, for purposes of fashioning relief, whether the defendant is the State or the official responsible for complying with the federal law in question. See Fed. R. Civ. Proc. 65(d) (injunction binds “the parties to the action, their officers, agents, servants, employees, and attorneys.@).
Therefore, under Ex Parte Young, state officers who violate federal law are stripped of their official capacity not for every purpose, but only for purposes of Eleventh Amendment immunity. Graham, 473 U.S. at 165 (“Official-capacity suits ... ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’”); Carten, 282 F.3d at 396-97 (“[A]n official who violates Title II of the ADA does not represent >the State= for purposes of the Eleventh Amendment, yet he or she nevertheless may be held responsible in an official capacity for violating Title II”); Randolph, 253 F.3d at 348 (same); Antrican, 290 F.3d at 184 (“A State officer acting in violation of federal law thus loses >the “cloak” of State immunity’”) (quoting Bragg v. West Virginia Coal Mining Ass=n, 248 F.3d 275, 292 (4th Cir. 2001), cert. denied, 534 U.S. 1113 (2002)); Elephant Butte Irrigation Dist. v. Department of the Interior, 160 F.3d 602, 609 (10th Cir. 1998) (“[T]he states cannot authorize any act that violates federal law”).
Additionally, Title II=s definition of a “public entity” easily encompasses the entity=s officers. A “public entity” is “any department, agency, special purpose district, or other instrumentality of a State …” 42 U.S.C. ' 12131(1)(B). The words “agency” and “instrumentality” in turn encompass “a person or thing through which power is exerted or an end is achieved.” Merriam-Webster=s Collegiate Dictionary, <http://www.m-w.com> (visited Apr.
11

26, 2002) (emphasis added). Moreover, Title II=s definition is adopted from its precursor
statute, Section 504 of the Rehabilitation Act, 29 U.S.C. ' 794(b)(1)(A), as well as other civil rights laws. It is well-settled that public officials may be liable in their official capacities under Section 504 notwithstanding its coverage of “programs or activities.” Department of Transp. v. Paralyzed Veterans of America, 477 U.S. 597, 606 (1986) (“Congress imposed the obligations of § 504 upon those who are in a position to accept or reject those obligations as a part of the decision whether or not to ‘receive’ federal funds.”).8
3. Title II Neither Implicates “Special State Sovereignty Interests” Nor Contains a Comprehensive Remedial Scheme_______________________________________
The Supreme Court has recognized only two limited exceptions to the Ex Parte Young doctrine: first, when a law implicates “special state sovereignty interests,” Idaho v. Coeur
d=Alene Tribe, 529 U.S. 261, 281-87 (1997), and second, when the law contains a “comprehensive remedial scheme” intended to substitute for individual enforcement actions, Seminole Tribe v. Florida, 517 U.S. 44, 75 (1996). Neither applies to Title II.
In Coeur d=Alene Tribe, the Supreme Court proscribed an Ex Parte Young action for ownership of state-held lands because it was the equivalent of an action to quiet title and thus implicated “special state sovereignty interests.” 529 U.S. at 287. But this exception, arising out of unique circumstances, has been held inapplicable to Title II, see Carten, 282 F.3d at 397, as
well as other laws implicating a State=s disability services. For example, this Court declined to
8 Three Courts of Appeals have held the term “agency or instrumentality of a foreign state” under the Foreign Sovereignty Immunity Act, 28 U.S.C. ' 1603(b), includes government officials sued in their official capacities. Chiudian v. Philippine Nat=l Bank, 912 F.2d 1095, 1101-02 (9th Cir. 1990); Jungquist v. Sheikh Sultan bin Khalifa al Nahyan, 115 F.3d 1020, 1027 (D.C. Cir. 1997); Byrd v. Corporacion Forestal y Industrial de Olancho S.A., 182 F.3d 380, 388 (5th Cir. 1999).
12

find “special sovereignty interests” in the States’ administration of education for children with
disabilities. Marie O. v. Edgar, 131 F.3d 610, 617 n. 13 (7th Cir. 1997).9 It is beyond doubt
Title II raises no such interests as well.
Nor does Title II contain a “comprehensive remedial scheme.” In Seminole Tribe, the
Court held Ex Parte Young inapplicable to the Indian Gaming Regulatory Act (IGRA) because
“Congress has prescribed a detailed remedial scheme@ with “significantly fewer remedies than
those available under Ex Parte Young, thus signaling Congress= intent to limit relief to that
available under the statute.” 544 U.S. at 75. But as with Couer d=Alene, Seminole Tribe is an
unusual case and has not, to Amici=s knowledge, been extended to any other statute.10 Indeed,
last term the Court unanimously refused to extend this exception to the Telecommunications Act
because it “places no restriction on the relief a court can award.” Verizon Md., 122 S. Ct. at
1761. The same is true of Title II, into which Congress expressly incorporated the remedies of
Section 504 of the Rehabilitation Act and, by extension, Title VI of the 1964 Civil Rights Act. 42
U.S.C. ' 12133. Title II’s legislative history shows Congress intended to make available the
9 See also Antrican, 230 F.3d at 184 (Medicaid services for people with disabilities); Lewis v. New Mexico Dep=t of Health, 261 F.3d 970, 978 (10th Cir. 2001) (same); Doe v. Chiles, 136 F.3d 709, 720 (11th Cir. 1998) (same); American Soc=y of Consultant Pharmacists v. Patla, 138 F. Supp. 2d 1062, 1070 n. 4 (N.D. Ill. 2001) (same); Bonnie L. v. Bush, 180 F. Supp. 2d 1321, 1327-28 (S.D. Fla. 2001) (Early Preventative Screening, Diagnosis and Treatment services); Robinson v. Kansas, 117 F. Supp. 2d 1124, 1136-37 (D. Kan. 2000) (public school financing).
10 See e.g. Marie O., 131 F.3d at 617 (Individuals with Disabilities Education Act); Bradley v. Arkansas Dep=t of Educ., 189 F.3d 745, 753-54 (8th Cir. 1999), rev=d en banc in part on other grounds, Jim C. v. Arkansas Dep=t of Educ., 235 F.3d 1079 (8th Cir. 2000), cert. denied, 533 U.S. 949 (2001) (same); Rosie D., 2002 U.S. App. LEXIS at *14 (Medicaid); Westside Mothers, 289 F.3d at 862 (same); Cox v. City of Dallas, 256 F.3d 281, 308-09 (5th Cir. 2001) (Clean Water Act); Sofamor Danek Group v. Brown, 124 F.3d 1179, 1185-86 (9th Cir. 1997) (same); Ellis v. University of Kan. Med. Ctr., 163 F.3d 1186, 1197-98 (10th Cir. 1998) (employment discrimination).
13

“full panoply of remedies”. H.R. Rep. No. 485 pts. 2-3, 101st Cong., 2nd Sess. 98 (1990); see also Gibson, 265 F.3d at 721 (“[T]he Supreme Court=s concern that an Ex Parte Young suit would permit a plaintiff to seek much stronger remedies than those specified in the IGRA itself does not apply to an ADA suit.”)
B. PLAINTIFF DOES NOT ASK DEFENDANT TO CREATE A “NEW” SERVICE BUT RATHER TO PROVIDE EXISTING NURSING SERVICES IN THE MOST INTEGRATED SETTING – HIS HOME___________________________________ In denying his claim for in-home nursing services under Section 504 of the Rehabilitation
Act, 29 U.S.C. § 794(a), the District Court below misunderstood and misstated Eric Radaszewski’s discrimination claim. 2002 U.S. Dist. LEXIS at **5-6. Mr. Radaszewski’s claim is not based on a lack of “‘evenhanded treatment of qualified handicapped persons’ relative to those persons who do not have disabilities.” Id. at *6 (quoting Alexander v. Choate, 469 U.S. 287, 307 (1985)). Rather, it is based on the fact that, under Defendant’s system of care, Mr. Radaszewski may receive nursing services only if he is confined in a nursing home. He may not receive such care if he chooses to live independently in his own home. Thus, to receive the nursing care he needs to survive, Mr. Radaszewski must relinquish his freedom and enter a nursing home.
The question of whether this Hobson’s choice constitutes illegal discrimination has been decided by the U.S. Supreme Court. In Olmstead v. L.C., 527 U.S. 581 (1999), plaintiffs were two women with developmental disabilities who wished to live and receive services in the community but were confined unnecessarily to a state hospital. Although their claim was not premised on the traditional notion of differential treatment between disabled and nondisabled people – because nondisabled people do not use institutions – akin to race and gender
14

discrimination cases, the Supreme Court held that “[u]njustified isolation … is properly regarded
as discrimination based on disability.” Id. at 596. The Court explained that discrimination
occurs when “persons with … disabilities must, because of those disabilities, relinquish
participation in community life they could enjoy given reasonable accommodations …” Id. at
600.
Similarly, in Helen L. v. DiDario, 46 F.3d 325 (3rd Cir. 1995), the Third Circuit
recognized that:
Congress has stated that “discrimination against individuals with disabilities persists in such critical areas as … institutionalization.” 42 U.S.C. § 12101(3). If Congress were only concerned about disparate treatment of the disabled as compared to their nondisabled counterparts, this statement would be a non sequitur as only disabled people are institutionalized.
Id. at 336; see also Rolland v. Cellucci, 52 F. Supp. 2d 231, 237 (D. Mass. 1999); Makin v.
Hawaii, 114 F. Supp. 2d 1017, 1033-34 (D. Haw. 1999); Williams v. Wasserman, 937 F. Supp.
524, 530 (D. Md. 1996).
These cases interpreted the ADA regulation mandating that state services be provided in
the “most integrated setting appropriate to the needs of qualified individuals with disabilities.”
28 C.F.R. § 35.130(d). Section 504 contains the same requirement. 45 C.F.R. § 84.4(2); 28 C.F.R. § 41.51(d).11 These regulations focus on the setting in which the state official has chosen
to provide state services and not on a simplistic comparison between disabled and non-disabled
persons. Thus, the District Court’s claim that “neither any type of handicapped individual nor
11 Although Olmstead and Helen L. were decided under Title II, the District Court below recognized that cases under the ADA should apply with equal force to Section 504. “The RA [Section 504] is materially identical to and the model for the ADA except that it is limited to programs that receive federal financial assistance.” Radaszewski, 2002 U.S. Dist. LEXIS at *6 (citations omitted).
15

any nonhandicapped individual over 21 is provided in-home nursing services” is irrelevant.
Radaszewski, 2002 U.S. Dist. LEXIS at *6. The discrimination against Mr. Radaszewski results
from the unjustified isolation he will suffer by virtue of Defendant’s refusal to provide
appropriate nursing services in his home.12
Preliminarily, it must be noted that the Court’s assertion that Defendant does not provide
in-home nursing to anyone over 21 is patently incorrect. The District Court acknowledged that
Defendant “reduced … to the equivalent of five hours a day of private duty nursing …”. Id. at
*3. Thus, as a factual matter, the District Court cannot reject Mr. Radaszewski’s claim on
grounds he seeks a service Defendant does not provide in home at all. The dispute, rather, is
12 Mr. Radaszewski clearly meets the other requirements for a valid claim for community services under Olmstead, 527 U.S. at 587. As evidenced by the fact that he has lived at home with in-home nursing care since 1995, Mr. Radaszewski does not, from a medical or treatment perspective, require institutionalization. Radaszewski, 2002 U.S. Dist. LEXIS at *3. There is no allegation he opposes placement in the community. Id.
Finally, continuing his in-home care would not fundamentally alter the state’s disability services. On average, home-based services in Illinois cost three times less than nursing home placements. R. Newcomer et al., Medicaid Home and Community-Based Long Term Care in Illinois (Nov. 1999). Indeed, the State itself has recognized that moving people from nursing homes into the community saves money and provides better services. In June 2000, the Associate Director of the Illinois Department of Human Services determined the integration of 133 former nursing home residents into the community saved Illinois nearly $50 million over the residents’ lifetimes. He also wrote the former nursing home residents “almost universally describe[d] their transition from these institutions back into the community as ‘being freed from jail.’” Memorandum from Carl Suter to Linda Renee Baker (Jun. 12, 2000), attached hereto.
In addition, under the Medicaid Home and Community Based Services waiver program, the cost of Mr. Radaszewski’s previous in-home nursing services was limited to what his placement in a nursing home would have cost. 42 U.S.C. § 1396n(c)(4)(B). Although Mr. Radaszewski no longer receives waiver services, the nursing services he seeks to maintain are the same services he received under the waiver and thus do not exceed the cost of a nursing home. It cannot therefore be said that continuing Mr. Radaszewski’s in-home nursing services would be a financial burden on Defendant; to the contrary, it would probably save money.
16

whether the amount of in-home nursing hours Defendant proposes to provide is sufficient to ensure Mr. Radaszewski’s right to avoid unnecessary institutionalization in a nursing home.13
But even if the District Court had been correct and Defendant did not provide nursing
services in the home, the District Court’s decision would still require reversal. By focusing on
the words “in-home,” the District Court incorrectly made the location of the provision of nursing
services their defining aspect. Rather, the service at issue is “nursing,” not “in-home nursing.”
Defendant does provide “nursing services” to people with disabilities – but only in institutions
and nursing homes. This fact places Defendant’s actions in clear violation of Olmstead and
Helen L. Olmstead, 527 U.S. at 603 n. 14 (“States must adhere to the ADA’s nondiscrimination
requirement with regard to the services they in fact provide.”).
Illinois’ expenditures on segregated nursing facilities are extensive and far outweigh
those spent on community care. In 2001, Illinois spent almost $1.5 billion to house over 82,000
Medicaid patients in nursing homes – four times more than it spent on home health care services.
Home and Community Based Resources Network, Medicaid Long-Term Expenditures 1996-
2001, <www.hcbs.org> (visited Nov. 15, 2002); see also J. Tilly et al., Urban Institute, Long-
Term Care: Consumers, Providers and Financing 42 (Mar. 2001) (80 to 89 percent of Illinois’
13 For this reason, the District Court’s reliance on Alexander v. Choate is misplaced. Unlike this case, Choate did not involve a claim under Section 504’s integration mandate. Rather, Choate decided whether a facially neutral reduction of Medicaid services would disparately impact people with disabilities. 469 U.S. at 290. While clarifying that Section 504 does not require proof of discriminatory intent or animus, id. at 295, the Supreme Court held the limitations at issue did not deny people with disabilities meaningful access to existing Medicaid services disproportionate to nondisabled people. Id. at 302. Choate is therefore easily distinguishable because it turned on a traditional disparate-impact analysis to determine whether discrimination occured. Mr. Radaszewski’s case, on the other hand, is not based on whether he can access nursing services relative to people without disabilities, but rather the unnecessary segregation that will result from Defendant’s decision to terminate his in-home nursing care.
17

Medicaid funds are spent on institutions). By federal law, nursing home funding must include state payments for “nursing services.” 42 U.S.C. § 1396r(b)(4)(C)(i) (“[A] nursing facility … must provide 24-hour licensed nursing services which are sufficient to meet the nursing needs of its residents” and “must use the services of a registered professional nurse for at least 8 consecutive hours per day, 7 days a week.”).
Thus, the fact that Defendant already provides adequate nursing services in segregated settings, but not integrated settings, distinguishes Mr. Radaszewski’s case from Rodriguez v. City of New York, 197 F.3d 611 (2nd Cir. 1999). See 2002 U.S. Dist. LEXIS at *6. There, plaintiffs sought a service – safety monitoring for AIDS patients with cognitive disabilities – which had never been provided, whether in institutional or community settings. The Second Circuit made clear its holding applied only to cases where the plaintiff challenged “the substance of the services provided.” Rodriguez, 197 F.3d at 618.
That is not the case here. Mr. Radaszewski is not asking for a service that is not provided by Defendant. Nor is he challenging the “substance” of nursing services by seeking to add to or modify them. Medically, a nurse’s care does not and cannot differ by virtue of its provision in one’s home or an institution or nursing home. Mr. Radaszweski asks only that same type of nursing care that he is currently eligible to receive in a nursing home be provided to him in an integrated, community setting – his home. This places Mr. Radaszewski’s case squarely within Olmstead and clearly outside the boundaries of Rodriguez. See Henrietta D. v. Giuliani, 81 F. Supp. 2d 425, 432 (E.D.N.Y. 2000); cf. Hahn v. Linn Cty., 130 F. Supp. 2d 1036, 1048 (N.D. Ia. 2001).
18

The District Court’s overly broad application of the narrow holding and facts in Rodriguez would, if adopted, eviscerate federal disability anti-discrimination laws contrary to their plain meaning. If the “substance” of a service turns on where it is provided, states would be free to isolate people with disabilities simply by eliminating any comparable services in the community. For example, a state might decide to restrict physical therapy and habilitation to nursing home residents by refusing to provide such services in community settings. Although this policy would undoubtedly force people with disabilities unnecessarily to “relinquish participation in community life” to receive needed therapy services, see Olmstead, 527 U.S. at 600, the state could justify such discrimination simply by claiming that community-provided physical therapy was a “new” service as opposed to institutionally-provided therapy services – even though the services are in every other respect identical. This is a loophole that Congress clearly had no intention of creating.14 Id. at 599 (“Congress explicitly identified unjustified ‘segregation’ of persons with disabilities as a ‘form of discrimination.’”) (quoting 42 U.S.C. § 12101(a)(2)).
14 This does not mean that Title II and Section 504 create an “entitlement” to services. States that provide no disability services at all – whether in institutions or in the community – do not transgress the ADA. If States do provide such services, however, they must ensure those services comply with the “most integrated setting” requirement of the ADA as interpreted by the Supreme Court in Olmstead.
19

IV. CONCLUSION For the reasons stated above, Amici respectfully request this Court reverse the District
Court below on Plaintiff’s ADA and Section 504 claims.

Dated November 26 2002.

RESPECTFULLY SUBMITTED,

_______________________________________ One of the Attorneys for Amici

Max Lapertosa Kenneth M. Walden Access Living 614 West Roosevelt Road Chicago, IL 60607 (312) 253-7000

Barry Taylor Laura J. Miller John W. Whitcomb Equip for Equality, Inc. 11 East Adams Street Suite 1200 Chicago, IL 60603 (312) 341-0022

Benjamin S. Wolf The Roger Baldwin Foundation of the American Civil Liberties Union of Illinois 180 North Michigan Avenue Suite 2300 Chicago, IL 60601 (312) 201-9740

20

CIRCUIT RULE 31(e)(1) CERTIFICATION
Pursuant to this Court’s Rule 31(e)(1), I certify that the full content of this Brief Amici Curiae, from the cover to the conclusion, has been provided in digital form.

Dated November 26, 2002.

_______________________________________ Max Lapertosa Counsel for Amici

CERTIFICATION UNDER FED. RULE APP. PROC. 32(a)(7) I certify that the foregoing Brief Amici Curiae complies with the type-volume limitation set forth in Rules 32(a)(7)(A) and 29(d) of the Federal Rules of Civil Procedure, in that it contains 6,122 words according to the word-processing system used to prepare the brief.

Dated November 26, 2002.

_______________________________________ Max Lapertosa Counsel for Amici

CERTIFICATE OF SERVICE
I certify that on November 27, 2002, I served two copies of the Motion for Leave to File a Brief Amici Curiae in Support of the Plaintiffs-Appellants, two copies of the Brief Amici Curiae in Support of the Plaintiffs-Appellants, and one digital version of the brief by first-class U.S. Mail, postage prepaid, upon the following counsel of record:
Bernard H. Shapiro, Esq. Prairie State Legal Services 975 South Main Street Rockford, IL 61103
Eliot Abarbenal, Esq. Sarah Megan, Esq. Prairie State Legal Services 350 South Schmale Road Carol Stream, IL 60188
Deborah L. Ahlstrand, Esq. Office of the Attorney General Civil Appeals Division 100 West Randolph Street Chicago, IL 60601
____________________________________ MAX LAPERTOSA

 </s> No. 02-3657
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

DONNA RADASZEWSKI, Guardian, on behalf of ERIC RADASZEWSKI,
Plaintiff-Appellant,
v.
BARRY MARAM, Director, Illinois Department of Public Aid,
Defendant-Appellee.

) On Appeal From the United States ) District Court for the Northern ) District of Illinois, Eastern Division. ) ) ) No. 01 C 9551 ) ) ) The Honorable ) JOHN W. DARRAH, ) Judge Presiding.

BRIEF OF DEFENDANT-APPELLEE BARRY MARAM
LISA MADIGAN Attorney General State of Illinois
100 West Randolph St. 12th Floor Chicago, Illinois 60601 (312) 814-3312
Attorney for Defendant-Appellee.

MARY E. WELSH Assistant Attorney General 100 West Randolph Street 12th Floor Chicago, Illinois 60601 (312) 814-2106

TABLE OF CONTENTS

Page(s)

JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ISSUE PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Plaintiff’s First Suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Plaintiff's Second Suit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

The District Court Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I. The Director Was Entitled to Judgment as a Matter of Law on Plaintiff’s ADA and Rehab Act Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. The Grant of a Rule 12(c) Motion Should Be Affirmed When, as Here, a Plaintiff Cannot Plead a Set of Facts to Support Her Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. The Director Was Entitled to Judgment Because Neither the ADA Nor the Rehab Act Requires the Department to Add Long-Term 24-Hour Private Duty Nursing Care to Its State Medicaid Plan or to Increase the SCM for Its Adult Waiver Program by 400-600% to Cover 24-Hour Private Duty Nursing in the Home . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

1. The ADA and Section 504 of the Rehab Act Require the States to Make Only "Reasonable Modifications" When "Necessary to Avoid" Disability Discrimination and to Administer Services in the Most Integrated Setting "Appropriate" for Those Who Meet the Essential Eligibility Requirements for the Benefit . . . . . . . 12

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2. The Supreme Court Has Explicitly Limited the ADA's Nondiscrimination Requirement to Programs and Services the States Already Provide . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
3. Plaintiff Did Not and Cannot Allege Any Set of Facts That Would State a Claim Under ADA or Section 504 of the Rehab Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
C. Plaintiff's and Amici's Authorities Are Inapposite or Unpersuasive . . 26 D. Amicus United States Is Silent on Whether Plaintiff Can
Plead Any Set of Facts to Support Her ADA Claim, While the Other Amici Misunderstand Both the Law and the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
-ii-

TABLE OF AUTHORITIES

Page(s)

Alexander v. Choate, 469 U.S. 287 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 11

Bryson v. Shumway, 177 F. Supp. 2d 78 (D.N.H. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Cramer v. Chiles, 35 F. Supp. 2d 1324 (S.D. Fla. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Eldred v. Ashcroft, __ U.S. ___, ___, 123 S. Ct. 769 n.16 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Frederick L. v. Dept. of Public Welfare, 217 F. Supp. 2d 581 (E.D. Pa. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Grzan v. Charter Hospital of Northwest Indiana, 104 F.3d 116 (7th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Henrietta D. v. Giuliani, 81 F. Supp. 2d 425 (E.D. N.Y. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Lewis v. New Mexico Dept. of Health, 94 F. Supp. 2d 1217 (D. N.M. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Makin v. Hawaii, 114 F. Supp. 2d 1017 (D. Hawai'i 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Martin v. Taft, 222 F. Supp. 2d 940 (S.D. Ohio 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11, 12, 29

Midwest Gas Services, Inc. v. Indiana Gas Co., Inc., 317 F.3d 703 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 11, 12

Olmstead v. L.C. ex rel. Zimring,

-iii-

527 U.S. 581 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Pennhurst State School & Hosp. v. Halderman,
465 U.S. 89 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Pennsylvania Protection and Advocacy, Inc. v.
Dept. of Public Welfare, 243 F. Supp. 2d 184, 193-95 (M.D. Penn. 2003) . . . . . . . . . . . . . . . 18, 20, 25, 28 Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 22 Townsend v. Quasim, ___ F.3d ___, 2003 WL 1989623 (9th Cir., May 1, 2003) . . . . . . . . . . . . . . . . . 18 Traynor v. Turnage, 485 U.S. 535 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Williams v. Wasserman, 164 F. Supp. 2d 591 (D. Md. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 STATUTES 28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1446(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 29 U.S.C. § 794 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. § 1396(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 42 U.S.C. § 12131(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. § 12132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. § 12134(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 42 U.S.C. § 2000d-7(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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305 ILCS 5/519 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 RULES Fed. R. Civ. P 12(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 28 C.F.R. § 35.130(b)(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 28 C.F.R. § 35.130(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 24 89 Ill. Admin. Code § 140.645 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 89 Ill. Admin. Code § 140.569(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 29 89 Ill. Admin. Code § 676.10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 89 Ill. Admin. Code § 676.30(j) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 89 Ill. Admin. Code § 679.50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 89 Ill. Admin. Code § 682.100(g), (h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 89 Ill. Admin. Code § 140.569 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 29 WEBSITES www.state.il.us/dpa/home_and_community_based_serv.htm . . . . . . . . . . . . . . . . . . . 5 www.state.il.us/dpa/html/technology_dependent_medically.htm . . . . . . . . . . . . . . . . 5 www.state.il.us/dpa/html/waiver_for_the_ disabled.htm . . . . . . . . . . . . . . . . . . . . . . . 5 OTHER H.R. Rep No. 101-485 (II), 101st Cong, 2d Sess. 84 (1990) . . . . . . . . . . . . . . . . . . . . . 14
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JURISDICTIONAL STATEMENT Plaintiff’s Jurisdictional Statement is not complete and correct. Plaintiff filed a complaint in the Circuit Court of DuPage County, Illinois, against Anna Patla in her capacity as then-Director of the Illinois Department of Public Aid, alleging the Department violated various state laws in connection with services covered through Medicaid for her son Eric and seeking injunctive relief. Doc. 1 at Ex. A. On November 15, 2001, Plaintiff was granted leave to file a supplemental complaint, which added allegations that the Department violated Title II of the Americans with Disabilities Act (42 U.S.C. § 12132) and Section 504 of the Rehabilitation Act (29 U.S.C. § 794) and state law. Doc. 1 at Ex. E, D. On December 14, 2001, Defendant filed a notice of removal pursuant to 28 U.S.C. §§ 1441 and 1446(b) based on the supplemental complaint’s alleged violations of federal law. Doc. 1. Plaintiff moved to remand (Docs. 3, 4), but the district court remanded only the state law claims, finding that it lacked supplemental jurisdiction over them under Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984) (Doc. 8). Under 28 U.S.C. § 1331, the district court had jurisdiction over the federal claims for injunctive relief. 42 U.S.C. § 2000d-7(a)(1) (Rehabilitation Act); Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir. 2003) (Eleventh Amendment does not bar ADA claims for injunctive relief). On September 11, 2002, the district court entered an order granting Defendant’s motion for judgment on the pleadings. Doc. 16. On October 9, 2002, Plaintiff filed a notice of appeal. Doc. 17. This Court therefore has jurisdiction over the appeal pursuant to 28 U.S.C. § 1291.
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ISSUE PRESENTED Whether Plaintiff can plead any set of facts to support her claim that the Director of the Department of Public Aid's decision that the Home Services Program cannot cover the cost of 2 or 3 shifts of private duty nursing for her adult son in their home constitutes disability discrimination under the Americans with Disabilities Act or Section 504 of the Rehabilitation Act of 1973.
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STATEMENT OF THE CASE Federal law requires the Department of Public Aid to include necessary inhome private duty nursing for children in its Medicaid plan but not for adults. The Department covers such care for disabled adults only through the Home Services Program (HSP), for which the cap is the cost of care in a nursing facility. Plaintiff's son Eric lives at home, where he receives care from his parents, who were specially trained to meet his complex medical needs. Before he turned 21 and "aged out" of a children's program for which the cap is the cost of hospitalization, the Department covered 2 shifts of daily private duty nursing for him. When he applied for the HSP, the Department determined he was eligible for "exceptional care" services in a nursing facility, so it agreed to cover the cost of his in-home care up to the cost of that level of care in a facility. Because this amount would cover at most 5 hours of private duty nursing daily, he appealed to the Director. At the hearing, his witnesses testified he needed 24-hour skilled clinical nursing and that no nursing facility would provide it. The Director concluded the HSP rules did not permit the Department to pay more than the "exceptional care" cap for in-home care. Plaintiff sued the Director in state court, alleging that the nondiscrimination provisions of the Americans with Disabilities Act (42 U.S.C. § 12132) and Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) required the Department to cover 2 or 3 shifts of in-home private duty nursing so that Eric could live at home. After removal, the district court granted the Director's Rule 12(c) motion. It found the Eleventh Amendment barred the ADA claim. It also found the Rehab Act did not require the Department to add and fund private duty nursing services for adults.
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STATEMENT OF FACTS1 Background
Though Congress decided that the States' Medicaid plans must cover certain services, such as nursing home care, it made other services optional, such as private duty nursing and home health care. 42 U.S.C. §§ 1396a(10)(A), 1396d(a)(4)(A), 1398d(a)(7), (8). Generally, the Illinois Medicaid plan does not cover shift private duty nursing except when short-term and intermittent. 89 Ill. Admin. Code §§ 140.435, 140.346, 140.472. For children, however, Congress mandated that the States' Medicaid plans must cover all necessary medical services, even those not generally covered under a State's plan, under the "early and periodic screening, diagnostic, and treatment" (EPSDT) program. 42 U.S.C. §§ 1396d(a)(4)(B), 1396d(r). Illinois does so. 305 ILCS 5/5-19(a).
Moreover, though Medicaid generally covers long-term medical care only in hospitals and nursing facilities, the States may cover in-home care, including certain services not covered in a State's Medicaid plan, through waiver programs if approved by the federal Department of Health and Human Services (HHS). 42 U.S.C. § 1396n(c). Such programs must be "cost neutral," that is, the average per capita cost of in-home care under the program cannot exceed the average cost of comparable
1 Under Rule 12(c) of the Federal Rules of Civil Procedure, like a Rule 12(b)(6) motion, this Court, like the district court, accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff’s favor. Midwest Gas Services, Inc. v. Indiana Gas Co., Inc., 317 F.3d 703, 709 (7th Cir. 2003). On such motions, in addition to the complaint, courts may take judicial notice of documents in the public record and reports of administrative bodies. Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998).
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facility-based care. Id. In Illinois, the Department of Public Aid (the Department), which administers Medicaid and the EPSDT program, has obtained HHS approval for a number of waiver programs to cover in-home care for those who otherwise would require facility-based care. See www.state.il.us/dpa/home_and_community_based_serv.htm (accessed 5/15/03).
One of these programs covers all medically necessary in-home care for "medically fragile [and] technology dependent" children up to age 21 who would otherwise be in a facility, regardless of their parents' financial abilities, so long as the "service cost maximum" (SCM) for that care does not exceed the cost of care in a hospital or a skilled pediatric nursing facility. 89 Ill. Admin. Code § 140.645; see also www.state.il.us/dpa/html/technology_dependent_medically.htm (accessed 5/15/03). For disabled adults who would otherwise be in a nursing facility, the Home Services Program (HSP) covers in-home care so long as the SCM for such care does not exceed the cost of care in a nursing facility. 89 Ill. Admin. Code §§ 676.10, 676.30(j), 682.100(g), (h) (individual cannot require in-home services that are expected to cost more than the cost of care in a facility for an individual with a similar determination of need (DON) score); see also www.state.il.us/dpa/html/waiver_for_the_ disabled.htm (accessed 5/15/03).
Before he turned 21, Eric Radaszewski, the son of Plaintiff Donna Radaszewski, received in-home care through the EPSDT program and the children's waiver program after he was diagnosed with and treated for brain cancer and later suffered a stroke. Doc. 1 at Ex. D at 2 (AT Appendix at A11). Due to special training,
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Eric's parents were able to care for him about 8 hours a day, while the children's waiver program covered 2 shifts of private duty nursing daily as well as certain other services. Id. Sometime before his 21st birthday in August 2000, when Eric would "age out" of the children's waiver program, Department officials advised Plaintiff about applying to the Office of Rehabilitation Services (ORS) for the HSP. Id. at 4. In February 2000, ORS determined that Eric's complex medical diagnosis made him eligible for "exceptional care"2 in a nursing facility and thus he was eligible for an SCM of $4,593 per month for in-home services instead of the standard SCM of $1,857 allowed for a DON score of 70. Doc. 13 at Ex. A at 2 (AT Appendix at A41).
On administrative appeal with the Department, the parties agreed that the only issue was whether the HSP should be required to pay more than the cost of a nursing facility at the "exceptional care" SCM to cover in-home services for Eric. Id. at 1 (AT Appendix at A40). At the hearing, Eric's treating physician testified he needed "substantial one-on-one nursing care" and would be at risk if placed in a nursing facility, the registered nurse in charge of his care testified his medical needs required constant surveillance, and an expert testified that no nursing facility would provide the level of care he required, which she said was skilled clinical nursing 24 hours per day. Id. at 2-3 (AT Appendix at A41-42). According to his witnesses, he needed $15,000 to $20,000 a month to provide for his in-home care. Id. at 3 (AT Appendix at A41).
2 The Department defines "exceptional care" as "the level of care with extraordinary costs related to services" for head-injured or ventilator-dependent persons, among others. 89 Ill. Admin. Code 140.569(a).
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In August 2000, Ann Patla, the then-Director of the Department, issued a final administrative decision affirming the ORS determination. Id. at 1 (AT Appendix at A40). She reasoned that the Department's rules governing the HSP permitted participation only when the cost of in-home services does not exceed the cost of a nursing facility. Id. at 4 (AT Appendix at A43). She also noted that Eric had raised 2 issues that could not be heard in the appeal process: (1) a failure to provide services sufficient for his needs, when the failure was based on state law, regulations, and federal government approval, and (2) a challenge to the legality of the HSP rules as applied to him. Id. Nothing in the record indicates that judicial review was sought for the Director's decision.
Plaintiff’s First Suit On September 1, 2000, Plaintiff filed an action in federal court against thenDirector Anna Patla, seeking to compel the Department to continue to cover shifts of private duty nursing for Eric and alleging violation of his rights under the Illinois Medicaid plan, federal Medicaid law (42 U.S.C. § 1396 et seq.), and due process. Doc. 1 at Ex. D at 10 (Radaszewski v. Patla, No. 00-5391 (N.D. Ill.). Though the district court granted Plaintiff's motion for a temporary restraining order against the Director, it denied her motion for a preliminary injunction. Doc. 1 at Ex. D at 10. Plaintiff appealed, but this Court held the appeal was moot in light of an amendment to the Illinois Medicaid plan eliminating private duty nursing for adults.3 Doc. 3 at
3 In February 2001, HHS approved the amendment to the Illinois Medicaid plan. Doc. 10 at Ex. A. The Department filed a certified copy of the amended rule with the office of the Illinois Secretary of State in September 2001. Doc. 1 at Ex. D at
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Ex. F (Radaszewski v. Patla, No. 00-3929 (7th Cir., March 8, 2001)). Plaintiff's Second Suit
Meanwhile, in December 2000, approximately 1 month after the district court denied Plaintiff’s motion for a preliminary injunction, she filed another suit against the Director, this time in the Circuit Court of DuPage County, alleging violations of state law based on the same facts and seeking injunctive relief. Doc. 1 at Ex. A. Within a few weeks, the state court issued a temporary restraining order against the Director. Id. at Ex. B. Plaintiff subsequently was granted leave to file a supplemental complaint, which added allegations that private duty nursing for Eric was required under the nondiscrimination requirement of Title II of the Americans with Disabilities Act (ADA) (42 U.S.C. § 12132) and Section 504 of the Rehabilitation Act of 1973 (the Rehab Act) (29 U.S.C. § 794) and challenged the amendment to the Illinois Medicaid plan on state law grounds. Id. at Ex. E, D. The Director answered. Doc. 3 at Ex. E.
The Director then filed a notice of removal pursuant to 28 U.S.C. §§ 1441 and 1446(b). Doc. 1. After removal, Plaintiff moved to remand (Docs. 3, 4), but the district court granted the motion only as to the state law claims4 (Doc. 8).
11. 4 The state court subsequently dismissed the case. Radaszewski v. Garner,
No. 00-CH-1475 (DuPage County Circ. Ct., Nov. 22, 2002). Plaintiff appealed, and the appeal remains pending. Radaszewski v. Maram, No. 2-02-1276 (Ill. App. Ct., 2d Dist.).
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The District Court Judgment The Director then moved for judgment on the pleadings as to the federal claims under Rule 12(c) of the Federal Rules of Civil Procedure. Doc. 10. On the ADA claim, the Director argued that the Director could not be named as a defendant, citing Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000). Id. at 4. She also argued that neither the ADA nor the Rehab Act required the Department to cover 24-hour private duty nursing in Eric's home. Id. at 4-14. Plaintiff responded (Doc. 12), and the Director replied (Doc. 13). Plaintiff asked the district court to defer its ruling on the motion until this Court issued its opinion in a pending appeal that challenged Walker, and the Director objected. Docs. 15, 14. The district court entered an order denying Plaintiff’s motion to defer and granting the Director’s motion for judgment on the pleadings. Doc. 16 (AT Appendix at A5). The court dismissed the ADA claim on Eleventh Amendment grounds, finding that Walker was controlling. Id. at 4. Noting that the Rehab Act does not require the States to create and fund new programs and that private duty nursing is not presently covered for any adults, it found the Department did not have to create and fund long-term private duty nursing for Eric. Id. at 5. Plaintiff appealed. Doc. 17. The district court subsequently entered the remand order a second time. Doc. 22.
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SUMMARY OF ARGUMENT The United States Supreme Court held in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) that the Americans with Disabilities Act prohibits discrimination only with regard to the services the States "in fact provide." Here, Plaintiff wants the Department of Public Aid to cover 2 or 3 shifts of private duty nursing daily for her son so that he can live at home. The Medicaid plan for Illinois, however, does not cover private duty nursing for adults, the Department of Public Aid covers it only for children up to age 21, and the Department has determined that her son is eligible under the Home Services Program (HSP) for disabled adults only at the "exceptional care" level, which is the equivalent of at most 5 hours of private duty nursing a day. Plaintiff can plead no set of facts that would support a disability discrimination claim under the ADA or Section 504 of the Rehabilitation Act of 1973. She cannot allege that an existing Department program will cover 2 or 3 shifts of private duty nursing a day for her son: the Medicaid plan covers no private duty nursing, the HSP would cover at most 5 hours a day, and the children's program is unavailable to adults. Plaintiff also cannot allege any facts to show that her son meets the eligibility requirements for the HSP, because she has alleged that the cost of his in-home care would exceed the HSP cap for the level of care the Department has determined he needs. Lastly, she cannot allege that the program modifications needed to cover 2 or 3 shifts of private duty nursing are reasonable: the children's program would have to be extended to adults, or the HSP cap would have to be raised at least 400%. Either modification is patently unreasonable. Thus, the Director was entitled to judgment.
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ARGUMENT I. The Director Was Entitled to Judgment as a Matter of Law on
Plaintiff’s ADA and Rehab Act Claims. The district court dismissed Plaintiff's ADA claim on the ground that Walker was controlling, but this Court recently abrogated Walker in Bruggeman v. Blagojevich, 324 F.3d 906, 912-13 (7th Cir. 2003). Nevertheless, as Plaintiff acknowledges, an ADA claim is materially identical to, and subject to the same standard as, a claim under Section 504 of the Rehab Act, with the sole difference being that the latter applies only to federally funded programs. AT Brf. at 9. As demonstrated below, however, application of that standard to Plaintiff's claims mandates their dismissal. A. The Grant of a Rule 12(c) Motion Should Be Affirmed When, as
Here, a Plaintiff Cannot Plead a Set of Facts to Support Her Claim. The grant of a motion to dismiss under Rule 12(c) of the Federal Rules of Civil Procedure, like a Rule 12(b)(6) motion, is reviewed de novo. Midwest Gas Services, Inc. v. Indiana Gas Co., Inc., 317 F.3d 703, 709 (7th Cir. 2003). Thus, this Court accepts as true all well-pleaded factual allegations and draws all reasonable inferences in the plaintiff’s favor. Id. at 709. In addition to the complaint, courts may take judicial notice of documents in the public record and reports of administrative bodies. Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998). As Plaintiff recognizes (AT Brf. at 6), a Rule 12(c) motion should be granted if
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it appears beyond doubt that she cannot plead any set of facts that would support her claims. Midwest Gas Services, 317 F.3d at 709. Moreover, even if the district court improperly considered extrinsic documents, as Plaintiff implies (AT Brf. at 8), the judgment may be affirmed if dismissal would be proper without considering them. Menominee Indian Tribe, 161 F.3d at 456. Here, it is plain that Plaintiff’s complaint was subject to dismissal because she did not and cannot plead any set of facts that would support her claims.
B. The Director Was Entitled to Judgment Because Neither the ADA Nor the Rehab Act Requires the Department to Add Private Duty Nursing for Adults to Its Medicaid Plan or to Increase the SCM for the HSP by 400-600% to Cover Shifts of Private Duty Nurses in the Home.
Plaintiff attacks the district court's decision reasoning, as do Amici. AT Brf. at 21-24, Amici Brf. at 14, 16. As demonstrated below, dismissal was proper.
1. The ADA and Section 504 of the Rehab Act Require the States to Make Only "Reasonable Modifications" to Programs the States "in Fact Provide."
To determine whether Plaintiff did or can allege a set of facts that would support her claim requires this Court to determine Congress's intent when enacting the ADA and Section 504 of the Rehab Act. To do so requires looking first at the language of the statutes to determine their plain meaning; legislative history is examined only if necessary to determine whether the language of the statutes is contrary to that intent. Grzan v. Charter Hospital of Northwest Indiana, 104 F.3d 116, 122 (7th Cir. 1997) (affirming dismissal of a Rehab Act claim). Thus, though
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Plaintiff's brief addresses the legislative history of the ADA and Section 504 of the Rehab Act at some length (AT Brf. at 13-14 & n.4), doing so was unnecessary unless the wording of the statutes at issue here is ambiguous (Eldred v. Ashcroft, __ U.S. ___, ___, 123 S. Ct. 769, 783 n.16 (2002)). Plaintiff does not argue that either statute's language is ambiguous. She is correct not to do so.
Section 504 of the Rehab Act prohibits the denial of federally funded benefits to a "qualified individual with a disability" "solely by reason of" that disability. 29 U.S.C. § 794(a). The Supreme Court has explained that Congress's intent in enacting Section 504 was only "to assure evenhanded treatment" of handicapped individuals in administration of federally-funded benefits. Alexander v. Choate, 469 U.S. 287, 304 (1985). The Court cautioned that Section 504 was not intended to "guarantee that each [benefit] recipient will receive that level of health care precisely tailored to his or her needs." Id. at 303. Indeed, the Court held that nothing in the Rehab Act indicates Congress intended "to make major inroads on the States' longstanding discretion to choose the proper mix of amount, scope, and duration limitations on services covered by state Medicaid . . . ." Id. at 307. Moreover, the Court has held that the Rehab Act does not require extending to all disabled people a benefit accorded to one set of disabled individuals. Traynor v. Turnage, 485 U.S. 535, 549 (1988). In short, through Section 504, Congress intended only to prohibit disability discrimination, not to set national health care policy.
Like Section 504, the ADA prohibits public entities from discriminating
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against a "qualified individual with a disability" "by reason of such disability" in their programs, but unlike Section 504, it is not limited to federally funded programs. 42 U.S.C. § 12132. The ADA defines "qualified individual with a disability" to include only those who, with or without reasonable modifications, meet "the essential eligibility requirements" for participating in a public entity's programs. 42 U.S.C. § 12131(2). It also required the Attorney General of the United States to issue rules implementing it that would be consistent with those promulgated under Section 504 of the Rehab Act. 42 U.S.C. § 12134. Congress explicitly expressed its intent that the ADA be interpreted consistently with Alexander. H.R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 84 (1990) (reprinted in 1990 U.S.C.C.A.N. 267, 303, 367 (1990)).
Under one of the ADA rules, called the "reasonable accommodation regulation," public entities may be required to make only "reasonable modifications" to their policies and practices, and only when necessary to avoid disability discrimination. 28 C.F.R. § 35.130(b)(7). Moreover, a public entity may resist making such modifications by demonstrating they would "fundamentally alter" a program. Id. Another rule, the "integration regulation," requires public entities to administer their programs and services "in the most integrated setting appropriate to the needs of qualified handicapped persons. 28 C.F.R. § 35.130(d).
2. The Supreme Court Has Explicitly Limited the ADA's Nondiscrimination Requirement to Programs and Services the States Already Provide.
Plaintiff and Amici Access Living et al. appear to believe that the ADA requires
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the States to cover any and all services needed to allow the disabled to live at home. AT Brf. at 10-23, Amici Brf. at 14-19. Not so. Indeed, not long ago, the United States Supreme Court gave only a "qualified yes" when asked if the ADA's nondiscrimination provision requires transferring a disabled person from a facility to a community setting. Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999).
In Olmstead, the mentally disabled plaintiffs argued that Georgia violated the ADA by not transferring them from its psychiatric hospitals to its community-based programs even though its treatment professionals had determined they were eligible for such placements. Id. at 593. Georgia countered that inadequate funding, not disability discrimination, prevented the transfers. Id. at 594. Alternatively, it argued, to require immediate transfers would fundamentally alter its activities given that it was using all available funds for others with disabilities. Id. The Court5 concluded that the States must provide community-based treatment for the mentally disabled if the State's treatment professionals have determined such placement is appropriate, the disabled person is not opposed, and the placement can be reasonably accommodated, unless the State can demonstrate that the placement would fundamentally alter the nature of its programs. Id. at 597-03, 607. The Court then remanded the matter for further proceedings. Id. at 607.
In reaching its conclusions, the Court first held that "unjustified institutional isolation" of the disabled constitutes disability discrimination for ADA purposes. Id.
5 Though Plaintiff attributes this statement to the plurality (AT Brf. at 13), it appears to be part of the majority's decision.
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at 600. The Court then found that requiring the mentally disabled to give up community life, even when community placement could be reasonably accommodated, in order to receive medical services constituted disability discrimination, given that others could receive the same services while living in the community. Id. at 601. The Court emphasized, however, that the ADA prohibits discrimination only against "qualified individuals," that is, those who the State's professionals have reasonably determined meet the essential eligibility requirements for the services sought. Id. at 601-02. Absent a State's determination that an individual meets the relevant requirements, the Court held, placing him in the community would be "inappropriate" within the meaning of the "integration regulation." Id. at 602. Though Plaintiff appears to view "reasonable modification" and "fundamental alteration" as 2 sides of the same coin (AT Brf. at 20-21), the Court further indicated that an ADA plaintiff has the burden of demonstrating that the modification she seeks is "reasonable," a question the plurality distinguished from that of the public entity's "fundamental alteration" defense. 527 U.S. at 587; id. at 603 (plurality) (distinguishing between questions of "reasonable modification" and "fundamental alteration"); id. at 613 (Kennedy, J., concurring) (same).
Though Plaintiff argues that whether the service sought is an existing program "may be a factor" in ADA analysis (AT Brf. at 22), she ignores the Court's explicit holding that whether the service at issue exists is the key factor: "the States must adhere to the ADA's nondiscrimination requirement with regard to the services they
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in fact provide," not with regard to services the State does not provide. 527 U.S. at 603 n.14 (emphasis added). Indeed, the Court stressed it was not holding that the ADA affirmatively imposes on the States a "<standard of care'" for whatever medical services they render, or . . . requires States to <provide a certain level of benefits to individuals with disabilities.'" Id. As Justice Kennedy observed in his concurrence, the ADA does not require a State to create a non-facility-based program where none exists, and a State's judgments on the "hard decisions" about how to allocate its resources in the treatment of diseases and disabilities is a political one that is not within the ADA's ambit. Id. at 612-13 (Kennedy, J., concurring in part). Indeed, Justice Kennedy emphasized that "[i]t is not reasonable to read the ADA to permit court intervention" in a State's decision to create, or to decline to create, a new service. Id. at 613 (Kennedy, J., concurring in part).
Addressing the "fundamental alteration" defense in the "reasonable accommodation regulation," the Court6 held that courts should consider not only the cost of providing non-facility-based care to the plaintiffs but also the range of services the States provide to others with similar disabilities and its obligation "to mete out those services equitably." Id. at 597. A plurality of the Court likened the defense to the "undue burden" standard of the rules promulgated under Section 504 of the Rehab Act. Id. at 603-07 & n.16 (plurality opinion) (citing 28 C.F.R. §§ 41.53, 42.511(c) and 45 C.F.R. § 84.12(c)).
6 Though Plaintiff attributes this statement to the plurality (AT Brf. at 12-13), it appears in the majority's opinion.
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Since Olmstead, courts have given the same "qualified yes" when asked to decide whether the ADA requires a State to provide a disabled plaintiff with an existing benefit that would allow him not to live in a facility. In Townsend v. Quasim, ___ F.3d ___, 2003 WL 1989623 (9th Cir., May 1, 2003), for example, the court concluded that because the State offered community-based long-term care to the categorically needy, it had to offer it to the medically needy too unless it could demonstrate that extending care to the latter group would fundamentally alter its Medicaid program. In Pennsylvania Protection and Advocacy, Inc. v. Dept. of Public Welfare, 243 F. Supp. 2d 184, 193-95 (M.D. Penn. 2003), the court granted the State's motion for summary judgment, rejecting claims that it had violated the ADA and Section 504 of the Rehab Act by not providing community-based living programs after it had demonstrated it lacked the resources to do so. The court stressed that how officials had decided to allocate funds within their budget for those qualified for community placement was not a proper subject for judicial scrutiny. Id. at 195 & n.9.
By contrast, when asked the different question of whether the benefit sought would require a State to create a new service, courts have given an unqualified "no," as footnote 14 of Olmstead requires. Perhaps most instructive on this question is Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999), in which the court held that the ADA did not require the defendant to create a new service (a caregiver for safety-monitoring), which the plaintiffs alleged would allow them to live at home. In Rodriguez, the court first found that the crux of the claim was that by providing
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certain services to one group of disabled people, the defendant discriminated against those who needed different services. Id. at 618. Because the defendant did not provide safety-monitoring caretakers to either the mentally disabled or the physically disabled, moreover, the court concluded that the plaintiffs were challenging the substance of the services rather than discrimination against the disabled, noting that the ADA does not forbid denying a benefit that is provided to no one. Id. The court also held that the plaintiff could not meet the "essential eligibility requirements" for safety monitoring caretakers, given that there were no such requirements. Id. The court also rejected the plaintiffs' reliance on Olmstead, which it read as addressing only where the State had to provide an existing service, not whether it had to provide a new service. Id. at 619. The court stressed that footnote 14 in Olmstead explicitly limited the ADA to prohibit discrimination in services the State actually provides and to not require that the States provide a certain level of benefits to the disabled. Id.
Here, Plaintiff insists that Rodriguez is inapposite because the Department already covers "nursing services." See, e.g., AT Brf. at 22-23. The service Plaintiff seeks here, however is not just "nursing services." Instead, she wants private duty nursing, up to 24 hours a day. As Plaintiff acknowledges, the State's Medicaid plan does not include this service for adults. AT Brf. at 23 n.6. According to the complaint, the HSP does not cover it either within the "exceptional care" SCM. Doc. 1 at Ex. A at 4. In fact, Plaintiff tacitly acknowledges that she cannot obtain the service she seeks unless the Department either raises the age limit for the children's
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waiver program or raises the level of care covered by the HSP, from "exceptional care" in a nursing facility to hospitalization. AT Brf. at 18-19. Because the case at bar concerns a benefit that the Department does not offer now, it is like Rodriguez, not like Olmstead. As in Rodriguez, the question here is whether private duty nursing should be covered, not where it should be provided, given that it is not provided now. 197 F.3d at 619 (distinguishing Olmstead on this ground).
3. Plaintiff Did Not and Cannot Allege Any Set of Facts That Would State a Claim Under the ADA or Section 504 of the Rehab Act.
Plaintiff gives short shrift to the facts needed to state a claim under the ADA, summarily contending she has done so with allegations that (1) Eric needs and wants private duty nursing in his home; (2) his home is the "most integrated setting appropriate" for his needs; (3) the cost of round-the-clock (or at least 2 shifts of) private duty nursing is less than the cost of hospitalization; (4) he is eligible for participation in the HSP but for its funding level; and (5) the modifications she seeks for the waiver programs (waiving the age cap for the children's waiver program for those who reach 21 and whose in-home care costs less than hospitalization or increasing the SCM for the HSP from nursing facility to hospitalization) are "very little." AT Brf. at 17-19. She also argues that dismissal under Rule 12(c) is premature until the Department presents evidence to support a "fundamental alteration" defense. AT Brf. at 18-21. Amici do the same. Amici Brf. at 16 n.12. The first, and only, question here, however, is whether Plaintiff did or can allege a set of
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facts stating a prima facie case under the ADA or Section 504 of the Rehab Act. The answer is no.
As a threshold matter, Plaintiff appears to underestimate the elements of her prima facie case. Under Olmstead, they include (1) a disabled person who wants to live in the community and (2) could do so with a service the public entity "in fact provides" and (3) for which the public entity's professionals have determined he is eligible, when (4) the service is offered in a facility and (5) extending that service to him outside the facility would require only a "reasonable modification" to the State's programs. See, e.g., Martin v. Taft, 222 F. Supp. 2d 940, 972 (S.D. Ohio 2002) (citing Olmstead). A careful comparison between the elements of the prima facie case and the complaint reveals that Plaintiff did and can allege a set of facts that satisfies only a few of the essential elements of her prima facie case. Moreover, as explained below, Plaintiff may have pled herself out of court.
Plaintiff's next problem is that the service she wants (2 or 3 shifts of private duty nursing daily) is not one the Department "in fact provide[s]" even though the Olmstead Court explicitly held this is an essential element of an ADA discrimination claim. 527 U.S. at 603 n.14. Plaintiff contends that the Illinois Medicaid plan covers "nursing services" and that the HSP covers "skilled nursing services" (AT Brf. at 17, 22), implying that private duty nursing are covered in a nursing facility (under Medicaid) or in the home (under the HSP). Likewise, Amici call the service at issue just "nursing" and argue that the Department must cover "appropriate nursing
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services," implying that it would cover private duty nursing for Eric in a nursing facility. Amici Brf. at 16-18. The 2001 amendment to the Department's rules, however, makes plain that the Medicaid plan does not cover private duty nursing for any adult anywhere, unless short-term and intermittent. Moreover, individuals may use HSP funds to cover in-home services that cost no more than the SCM, which Plaintiff admits will cover no more than the equivalent of 5 hours of private duty nursing daily. AT Brf. at 19. Thus, the service Plaintiff seeks is not one the Department "in fact provide[s]" now under either Medicaid or the HSP. Under these circumstances, Plaintiff and Amici are challenging the substance of the service the Department covers, just like the plaintiffs in Rodriguez. 197 F.3d at 618. As the court there indicated, a disability discrimination claim cannot be based on the denial of a benefit that is denied to all. Id.
Plaintiff also contends that Eric is eligible for the HSP even though she admits that his needs exceed the HSP's essential eligibility requirements, which she dismisses as just "a formula that capped the funding he could receive." AT Brf. at 19. Plaintiff cannot allege that the Department's professionals have determined Eric presently meets the essential eligibility requirements for 2 or 3 shifts of private duty nursing daily, given that, as Rodriguez explained, it is impossible to allege facts showing that one meets the essential eligibility requirements for a service that does not exist and thus has no requirements. 197 F.3d at 618. Thus, Amici's argument that it is irrelevant that the service sought is not provided to anyone (Amici Brf. at
-22-

16) must be rejected. On the contrary, that the service does not exist is the most relevant fact of all, according to footnote 14 of Olmstead. Another reason Plaintiff cannot allege Eric is eligible for 2 or 3 shifts of private duty nursing daily is that she has alleged the State's professionals determined he is eligible only for "exceptional care" in a nursing facility, which does not include any private duty nursing.
Plaintiff complains that the cap for the HSP is too low to allow him to remain in the community. AT Brf. at 19. Apparently, she does not realize that this means she in effect has pled that he cannot meet the essential eligibility requirements of the HSP for in-home services, one of which is that the cost of in-home services be no more than the cost of exceptional care in a nursing facility. Because she has alleged that the cost of the services Eric wants exceeds the cost of "exceptional care" in a nursing facility, one of her own authorities teaches, she has pled herself out of court on this essential element of her case. Cramer v. Chiles, 35 F. Supp. 2d 1324, 1348 (S.D. Fla. 1999) (individual is not eligible for waiver program if the cost of in-home services exceeds the cost of comparable care in a facility).
Also, Plaintiff repeatedly insists that 2 or 3 shifts of private duty nursing daily would cost less than "the cost of Medicaid[-]covered services he would need in the institutional setting appropriate for him." See, e.g., AT Brf. at 24, 18. She has alleged, however, that the Department has determined that the institutional setting appropriate for Eric is "exceptional care" in a nursing facility, and she also has alleged that the cost of 2 or 3 shifts of private duty nursing daily is far more than the cost of
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that care, which she has alleged is at most the equivalent of 5 hours of private duty nursing daily. Amici make the opposite mistake, arguing that the cap for the children's waiver program was the cost of care in a nursing facility so the cost of 2 shifts of private duty nursing could not have been more than the cost of a nursing facility. Amici Brf. at 16 n.12. As explained above, the cap for the children's waiver program was hospitalization.
Plaintiff also summarily insists that Eric's home is the "most integrated setting for the [nursing] services" Eric needs (AT Brf. at 17, 18), but the wording of the regulation requires that a setting be the "most integrated [one] appropriate to [his] needs," not to the services. 28 C.F.R. § 35.130(d) (emphasis added). Under Olmstead, it is not "appropriate" within the meaning of this regulation to place a patient in the community unless the State's professionals have determined he meets the essential eligibility requirements for participation in a program that would allow the placement. 527 U.S. at 602. Here, in effect, Plaintiff has alleged that Eric does not meet the essential eligibility requirements for in-home care under the HSP because, as she alleges, the State's professionals have determined he is eligible only for "exceptional care" in a nursing home or its cost-equivalent for in-home services, which she further alleged is insufficient to cover the care he needs to remain at home. Under these circumstances, Olmstead teaches, Plaintiff did not and cannot allege that Eric's home is the "the most integrated setting appropriate to [his] needs" within the meaning of the integration regulation.
-24-

Even if the complaint could be construed as alleging a set of facts meeting all the above essential elements of Plaintiff's prima facie case, it nevertheless was subject to dismissal unless she could also allege a set of facts showing that the modifications she seeks for the State's Medicaid plan or the HSP are reasonable. She cannot. Though Plaintiff characterizes the modifications that would be needed as "very small" or "very little" (AT Brf. at 18, 19), she grossly understates them.
For example, the modification Plaintiff seeks for the children's waiver program is to extend it to a class of adults of an unspecified number. AT Brf. at 19. Such a "modification" is facially unreasonable because it would completely change the program's focus and purpose, which is to cover services for a class of children with very special medical needs, who would otherwise have to be in a hospital or a skilled pediatric nursing facility, regardless of their parents' financial eligibility for Medicaid. Similarly, the "modification" that Plaintiff seeks for the HSP to raise its cap by 400600%. Doing so would completely change the HSP's modest focus and purpose, which is to cover a modest mix of homemaking and personal care services for disabled individuals who would otherwise have to be in a nursing facility, regardless of their financial eligibility for Medicaid. Neither program is intended to cover adults whose medical needs require 2 or 3 shifts of private duty nursing daily. As Justice Kennedy observed in Olmstead, a State's decisions about how to allocate its resources simply not subject to judicial review. 527 U.S. at 612-13 (Kennedy, J., concurring in part); see also Pennsylvania Protection and Advocacy, 243 F. Supp. 2d at 195 & n.9.
-25-

In sum, though Plaintiff complains that the Director's decision not to cover a service for which Eric is not eligible "[t]urn[s] Olmstead on its head" (AT Brf. at 17), it is Plaintiff who wants to turn the ADA on its head. The Department's professionals have determined that Eric meets the essential eligibility requirements for "exceptional care" in a nursing facility and it has offered to cover in-home services for him up to the cost of that care, but Plaintiff rejected its offer. Instead, she demands that the Department cover up to 24 hours of private duty nursing for Eric even though the Department does not cover any private duty shift nursing for any adult under any existing program and cannot do so unless it makes facially unreasonable changes to the Medicaid plan or the HSP. Because Plaintiff did not and cannot plead a set of facts that would support a claim under the nondiscrimination requirements of the ADA and Section 504 of the Rehab Act require, the Director was entitled to judgment.
C. Plaintiff's and Amici's Authorities Are Inapposite or Unpersuasive.
None of Plaintiff's and Amici's authorities requires reversal. Plaintiff mistakenly views her claim as turning on where the Department must offer "nursing services" for Eric (AT Brf. at 8), as do Amici (Amici Brf. at 15). Thus, it is not surprising that most of their post-Olmstead string-cited authorities address that issue rather than whether the State must provide it, the true question raised here and in Rodriguez. AT Brf. at 17 and Amici Brf. at 15 (citing Frederick L. v. Dept. of Public Welfare, 217 F. Supp. 2d 581, 591-93 (E.D. Pa. 2002) (entering
-26-

judgment for State, which demonstrated that to assure 60 community placements of mentally disabled would deprive others of health care and thus would be fundamental alteration in programs); Bryson v. Shumway, 177 F. Supp. 2d 78, 101 (D.N.H. 2001) (questions of fact on reasonableness of pace of waiting list and effectiveness of plan for transfer from facility barred summary judgment), rev'd in part on other grounds, vacated in part on other grounds, and remanded in part on other grounds, 308 F.3d 79 (1st Cir. 2002); Williams v. Wasserman, 164 F. Supp. 2d 591, 627-38 (D. Md. 2001) (granting defendant's summary judgment motion based on demonstration that State's progress in placing disabled in community was acceptable and that more immediate shift of resources plaintiffs sought would have fundamentally altered State's programs); Henrietta D. v. Giuliani, 81 F. Supp. 2d 425 (E.D. N.Y. 2000) (denying motion for summary judgment on question of equal access to existing benefits).
The other authorities Plaintiff and Amici cite decline to rule on a defendant's "fundamental alteration" defense due to the lack of evidence at that stage in the litigation. Id. (citing Lewis v. New Mexico Dept. of Health, 94 F. Supp. 2d 1217, 1238-39 (D. N.M. 2000) (denying 12(b)(6) motion as premature given that cost analysis was needed to assess State's fundamental alteration defense), aff'd on other grounds 261 F.3d 970 (10th Cir. 2001); Makin v. Hawaii, 114 F. Supp. 2d 1017, 103336 (D. Hawai'i 1999) (denying State's motion for summary judgment due to questions of fact about whether the plaintiffs were "qualified individuals" absent a state determination on level of care, whether the modifications sought were reasonable,
-27-

and if so, whether they would fundamentally alter the program)). That affirmative defense, however, need not be addressed unless and until a plaintiff sets for a prima facie case. As explained above, Plaintiff has failed to do so in her complaint.
Though Plaintiff faults the district court for citing pre-Olmstead authorities (AT Brf. at 21), she herself string-cites a number of them (id. at 15). She also relies heavily on one of them, which likewise concerned the question of where the State must offer existing services rather than whether the State must provide it. Id. at 1517 (citing Helen L. v. DiDario, 46 F.3d 325 (3d Cir. 1995)). Furthermore, Helen L. is inapposite because the plaintiff there wanted fewer services at home than were provided at the nursing facility, whereas Plaintiff wants far more services than a nursing facility will provide, according to the complaint. Moreover, Plaintiff appears to rely on the Helen L. court's criticism of how officials had allocated funds within the Department's budget for those qualified for community placement (AT Brf. at 16-17), and she appears to challenge the Department's decision not to cover private duty nursing under the Medicaid plan (id. at 23 n.6). As Pennsylvania Protection and Advocacy noted, however, Helen L.'s criticism did not survive Olmstead because a State's decisions about how to allocate its resources are not a proper subject for judicial scrutiny. 243 F. Supp. 2d at 195 & n.9.
D. Amicus United States Is Silent on Whether Plaintiff Can Plead Any Set of Facts to Support Her ADA Claim, While the Other Amici Misunderstand Both the Law and the Facts.
Though the Attorney General for the United States promulgated the ADA
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regulations at issue here, the brief of Amicus United States does not mention them and addresses only the Eleventh Amendment issue. Its silence on the question is deafening.
The other Amici make a number of legal and factual errors in their arguments. For example, though courts may take judicial notice of documents in the public record and reports of administrative bodies (Menominee Indian Tribe of Wisconsin v. Thompson, 161 F.3d 449, 456 (7th Cir. 1998)), Amici rely in part on an internal Department memo. Amici at 16 n.12 and Appendix. They also rely on extrinsic material from sources not in the public record. Amici Brf. at 16 n.12, 17-18. They offer no authority for considering such information on a Rule 12(c) motion, however, so the memo and the references to it should be stricken, as should the other items.
Amici further argue that Eric is "eligible for more extensive nursing care" than the Department will provide under the HSP but he must enter a nursing facility to receive it, which they call a "Hobson's choice." Amici Brf. at 4, 14. According to the complaint, however, the Department has determined that Eric is eligible only for "exceptional care," not for "more extensive nursing," and he may choose to receive that level of care in a nursing facility or to receive services in his home up to the same dollar amount. No private duty nursing is covered in a nursing facility under the "exceptional care" program (89 Ill. Admin. Code § 140.569), so Eric would not receive 2 or 3 shifts of private duty nursing if he is in a nursing facility.
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CONCLUSION For the reasons stated above, Defendant-Appellee Barry Maram, Director of the Illinois Department of Public Aid, respectfully requests that this Court affirm the judgment entered in his favor.
Respectfully submitted,

___________________________ MARY E. WELSH Assistant Attorney General 100 West Randolph St., 12th Floor Chicago, Illinois 60601 312/814-2106

LISA MADIGAN Attorney General State of Illinois
100 West Randolph St. 12th Floor Chicago, IL 60601 312/814-3312
Attorney for Defendant-Appellee.

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STATE OF ILLINOIS COUNTY OF C O O K

) ) SS. )

PROOF OF SERVICE
The undersigned, being first duly sworn upon oath, deposes and states that two (2) copies of the foregoing Brief of Defendant-Appellee were served upon the below-named party by depositing such copies in the United States mail at 100 West Randolph Street, Chicago, Illinois 60601 in an envelope bearing sufficient postage on May 16, 2003, before 5:00 p.m.
Eliot W. Abarbanel Prairie State Legal Services 350 S. Schmale Road Suite 150 Carol Stream, Illinois 60188
Max Lapertosa Access Living 614 West Roosevelt Rd. Chicago, IL 60607
Ralph F. Boyd, Jr. U.S. Dept. of Justice Civil Rights Div. 950 Pennsylvania Ave NW, PHB 5020 Washington, DC 20530

SUBSCRIBED and SWORN to before me this 16th day of May, 2003.
NOTARY PUBLIC

 </s> No. 02-3657
_________________________________
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
________________________________ DONNA RADASZEWSKI, guardian for ERIC RADASZEWSKI, Plaintiff-Appellant,
v. JACKIE GARNER, Director, Illinois Department of Public Aid, Defendant-Appellee.
________________________________
Appeal From The United States District Court For The Northern District of Illinois, Eastern Division
Case No. 01 CV 9551 The Honorable Judge John W. Darrah __________________________________
BRIEF AND REQUIRED SHORT APPENDIX OF
PLAINTIFF-APPELLANT, DONNA RADASZEWSKI ___________________________________
PRAIRIE STATE LEGAL SERVICES, INC. Attorneys for the Plaintiff-Appellant,
Donna Radaszewski
Bernard Shapiro Sarah Megan Eliot Abarbanel 350 South Schmale Road, #150 Carol Stream, IL 60188 630-690-2130

No.

IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT ______________________________________________________________________________

DONNA RADASZEWSKI, guardian

) Appeal from the United States District Court

for ERIC RADASZEWSKI,

) for the Northern District of Illinois, Eastern

) Division.

Plaintiff-Appellant,

)

)

v.

) No. 01 C 9551

)

JACKIE GARNER, Director, Illinois

)

Department of Public Aid,

)

) The Honorable

) John W. Darrah,

Defendant-Appellee.

) Judge Presiding.

______________________________________________________________________________

DISCLOSURE STATEMENT The undersigned attorney, pursuant to Seventh Circuit Rule 26.1, hereby certifies that Prairie State Legal Services, Inc. is the only law firm which has represented, or is expected to represent, the plaintiff in the present case.

________________________________ Eliot Abarbanel
PRAIRIE STATE LEGAL SERVICES, INC. Eliot Abarbanel 350 S. Schmale Road Suite150 Carol Stream, IL 60188 630-690-2130
i

TABLE OF CONTENTS Disclosure Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i Table of Contents ...................................................................................... ii Table of Authorities ................................................................................. iii Jurisdictional Statement ........................................................................... 1 Issues Presented for Review ..................................................................... 1 Statement of the Case ............................................................................... 2 Statement of Facts .................................................................................... 4 Summary of the Argument ....................................................................... 6 Argument .................................................................................................. 9 Conclusion ................................................................................................ 35 Certification under Federal Rule
of Appellate Procedure 32(a)(7) ........................................................... 36 Circuit Rule 31(e)(1) Certification ........................................................... 38 Appendix
ii

TABLE OF AUTHORITIES Cases A.A. v. Board of Education, 196 F. Supp. 2d 259 (E.D.N.Y., April 18, 2002) .... 32, 33 Alden v. Maine, 527 U.S. 706, 119 S. Ct. 2240 (1999).......................................... 26, 27 Alexander v. Choate, 469 U.S. 287(1985).................................................................... 21 Alexander v. Sandoval, 532 U.S. 275(2001).. ..................................................... 34 Alsbrook v. Maumelle, 18 F.3d 995, (8th Cir. 1999)................................................... 25 Armstrong v. Davis, 275 F.3d 849 (10th Cir. 2002)..................................................... 32 Ashley v. United States, 266 F.3d 671 (7th Cir. 2001)................................................. 32 Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356(2001)................................................. 28, 29, 30, 31,32
Bragdon v. Abbott, 524 U.S. 624 (1988)........................................................................ 34 Brennan v. Stewart, 834 F.2d 1248 (5th Cir. 1988)....................................................... 34 Bronk v. Ineichen, 54 F.3d 425 (7th Cir.1995)............................................................... 20 Bryson v. Shumway, 177 F.Supp.2d 78 (D.N.H.2001).................................................... 17 Carten v. Kent State University, 282 F.3d 391 (6th Cir. 2002).................................31, 32 Cramer v. Chiles, 33 F.Supp.2d 1342 (S.D.Fl. 1999)...................................................... 15 Crawford v. Indiana Department of Corrections, 115 F. 3d 481 (7th Cir. 1997).............. 9 Dadian v. Village of Wilmette, 269 F.3d 831(7th Cir. 2001)............................................. 20 Daigle v. Louisiana Dept. of Social Services, 2002 WL 126647 (E.D. La.2002).............. 32 Devines v. Maier, 728 F.2d 876 (7th Cir. 1984)................................................................ 32 Doe v. Sylvester, 2001 WL 1064810 (D. Del. 2001)............................................... 32, 33, 35
iii

EEOC v. AIC Security Investigations, 55 F. 3d 1276 (7th Cir. 1995) ............................... 30 Ex Parte Young, 209 U.S. 123 (1908)................................................................... 4, 8, 24-35 Feto v. Sergi, 181 F. Supp. 2d 53 (D. Conn 2001).............................................................. 32 Forseth v. Village of Sussex, 199 F.3d 363 (7th Cir. 2000)................................................... 6 Frederick L. v. Department of Public Welfare, 217 F.Supp.2d 581 (E.D. Pa. 2001)............17 Frederick L. v. Department of Public Welfare, 157 F.Supp.2d 509 (E.D. Pa. 2001)........................................................................... 17, 32, 33 Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98 (2nd Cir. 2001)................................................................................................ 32 Gray v. Wilburn, 270 F.3d 607, 609 (8th Cir. 2001)........................................................... 25 Green v. Mansour, 474 U.S. 64 (1985)........................................................................... 27, 31 Gregory v. Administrative Office of the Courts of the State of New Jersey, 168 F. Supp. 2d 319(D. N.J. 2001)......................................................................... 31, 32, 33 Helen L. v. DiDario, 46 F.3d 325, (3rd Cir. 1995)............................................9, 14, 16, 19, 20 Kathleen S. v. Department of Public Welfare of Comm. of Pa., 10 F.Supp.2d 460 (E.D.Pa. 1998)......................................................................................... 14 Kentucky v. Graham, 473 U.S. 159(1985)........................................................................... 30 Kiman v. N.H. Dept. of Corrections, 301 F.3d 13 (1st Cir 2002)......................................... 31 Klingler v. Director, Dept. of Revenue, 281 F.3d 776 (8th Cir. 2002)................................ 32 Lewis v. New Mexico Dept. of Health, 94 F.Supp.2d 1217(D.N.M.2000).......................... 17 Makin ex rel. Russell v. Hawaii, 114 F.Supp.2d 1017(D.Haw.1999)...................................17 Nichol v. Stass, 192 Ill. 2d 233, 735 N.E.2d 582 (2000)........................................................ 33 Olmstead v. L.C., 527 U.S. 581 (1999)........................................................... 7, 10-24, 25, 30 Osteen v. Henley, 13 F. 3d 221 (7th Cir. 1993)................................................................... 27
iv

Parker v. Michigan Dept. of Corrections, 2001 WL 1736637 (W.D. Mich.2001).......... 37, 38 Pennsylvania Secretary of Public Welfare v. Idell S., 513 U.S. 813 (1995).....................14, 15 Reickenbacker v. Foster, 274 F.3d 974(5th Cir. 2001)......................................................... 32 Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999)............................................... 23 Rolland v. Cellucci, 52 F.Supp.2d 231 (D.Mass. 1999)......................................................... 15 Rothman v. Emory University, 123 F.3d 446 (7th Cir. 1997)................................................. 9 Rowe v. Maine Dept. of Human Services, 156 F. Supp. 2d 35.........................................32, 33 Senn Park Nursing Center v. Miller, 104 Ill 2d 169, 470 N.E. 2d 1029 (1984)..................... 33 Shepard v. Irving, 204 F. Supp. 2d 902 (E.D. Va. 2002)........................................................ 32 Southeastern Community College v. Davis, 442 U.S. 397 (1979).......................................... 21 Traynor v. Turnage, 485 U.S. 535 (1988)................................................................................ 21 United States v. Village of Palatine, Illinois, 37 F.3d 1230 (7th Cir.1994)............................. 20 Verizon Maryland. Inc. v. Public Service Commission of Maryland, ___ U.S. ___, 122 S.Ct. 1753 (2002).......................................................................... 26, 28, 30 Walker v. Snyder, 213 F.3d 344, (7th Cir. 2000), cert denied, 531 U.S. 1190 (2001)............................................................... 8, 10, 24-26, 29, 33 Walker v. Washington, 1998 U.S. LEXIS 9128 (N.D. Ill. 1998)............................................ 24 Washington v. Indiana High Sch. Athletic Assn., Inc., 181 F.3d 840 (7th Cir.1999)............. 20 Williams v. Wasserman, 164 F.Supp.2d 591 (D.Md.2001).................................................... 17 Williams v. Wasserman, 937 F.Supp 524 (D.Md. 1996)........................................................ 14
v

Federal Statutes and Constitutional Provisions U.S. Constitution, Article VI, Section 8................................................................................ 27 28 U.S.C. §1291 .................................................................................................................. 1 28 U.S.C. §1331 ................................................................................................................. 128 U.S.C. §1441(b) ........................................................................................................................ 1 29 U.S.C. §794 .......................................................................................1, 3, 6, 9, 11, 14, 34 42 U.S.C. §630(b) ............................................................................................................ 30 42 U.S.C. §12101(a).......................................................................................................... 11 42 U.S.C. §12111(2)......................................................................................................... 30 42 U.S.C. §12112(a).......................................................................................................... 29 42 U.S.C. §12131(1)(A).................................................................................................... 29 42 U.S.C. §12131-12165.................................................................................................... 9 42 U.S.C. §12132..........................................................................................1, 3, 6, 9, 24, 29 42 U.S.C. §12133..........................................................................................................39, 40 42 U.S.C. §12134(b)........................................................................................................... 11 42 U.S.C. §1396.................................................................................................................. 2 42 U.S.C. §1983.................................................................................................................. 2 42 U.S.C. §2000d................................................................................................................ 34 42 U.S.C. §200d-7(a)(1)...................................................................................................... 34 42 U.S.C. §2000e(b)............................................................................................................ 30 42 USC §1396n(c)................................................................................................................ 6 47 U.S.C. §252(e)(6)........................................................................................................... 28
vi

42 U.S.C. §12111(2) .......................................................................................................... 34 Federal Rules Federal Rules of Civil Procedure 12(c) ............................................................................. 12 Federal Regulations 28 CFR §35.130(b)(7)....................................................................................................... 14 28 CFR §35.130................................................................................................................ 13 28 CFR §41.51 ............................................................................................................ 11, 19 28 CFR §35.130................................................................................................................ 12 28 CFR §42.51(d).............................................................................................................. 11 LEGISLATIVE HISTORY H.R. Rep. No 485, Pt. 2, 101st Cong., 2d Sess. 98 (1990).............................................. 34 H.R. Rep. No. 485, Pt. 3, 101st Cong., 2d Sess. 52 (1990)............................................. 34 H.Rep. No. 101-485, Part III, 101st Cong. 2d Sess. (1990)......................................13, 16 S. Rep. No. 101-116, 101st Cong., 1st Sess (1989)........................................................ 13 Hearings before Senate Committee on Labor and Human Resources Sub-Committee on the Handicapped, 101Cong., 1st Sess., at 215 (1989)......................14 135 Cong. Rec. S4986 (daily ed., May 9, 1989)............................................................. 14 State Regulations 89 Ill.Admin.Code §140.645(c).................................................................................... .14
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APPELLANT’S JURISDICTIONAL STATEMENT A. Basis for the District Court’s Jurisdiction
Plaintiff Donna Radaszewksi originally brought this action against the then Director of Illinois Public Aid, Ann Patla, in state court, alleging five causes of action resting on Illinois law. Radaszewski v. Patla, No. 00 CH 1475, in the Circuit Court for the Eighteenth Judicial Circuit in DuPage County. Plaintiff filed a Supplemental Complaint adding two causes of action based on federal law: Count VI based on violation of Title II of the Americans with Disabilities Act, 42 U.S.C. §§12132 et seq., and Count VII based on violation of the Rehabilitation Act of 1973, 29 U.S.C. §794. On December 14, 2001, defendant removed the case to federal court. Upon plaintiff’s motion for remand, the district court entered an Order remanding Counts I-V of plaintiff’s Supplemental Complaint that were based exclusively on Illinois law, and retaining jurisdiction of the two counts based on federal law under 28 U.S.C. §1441(b), §1331. B. Basis for Appellate Jurisdiction
Appellate jurisdiction of the district court’s final order is proper under 28 U.S.C. §1291 and Rules 3 and 4 of the Federal Rules of Appellate Procedure. C. and D. Filing Dates/Assertion of Appellate Jurisdiction
On September 10, 2002, the district court entered judgment on the pleadings for defendant on both federal counts pending before it. This is a final order, resolving all claims pending before the district court. Plaintiff timely filed her notice of appeal on October 9, 2002.
ISSUES PRESENTED FOR REVIEW I. Is judgment on the pleadings for the state defendant proper where plaintiff has alleged facts that defendant has violated the Rehabilitation Act of 1973 by restricting provision of the nursing services her disabled son needs to an institutional setting only and by refusing to
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continue to provide those services in his home, even though the home-based services are more cost-effective?
II. May plaintiff pursue a claim seeking prospective injunctive relief for violation of Title II of the ADA against defendant Director of the Illinois Department of Public Aid in her official capacity pursuant to the doctrine of Ex Parte Young, 209 U.S. 123 (1908) where the claim against the Department itself is barred by the Eleventh Amendment?
STATEMENT OF THE CASE Plaintiff’s son, Eric Radaszewski, was diagnosed with brain cancer when he was 13 years old. Due to the effects of the cancer, the surgical, radiation, and chemotherapy treatment, and a subsequent mid-brain stroke, Eric is medically fragile with complex medical needs. The Illinois Medicaid program funded nursing services for Eric in his home until he turned 21 under a program for Medically Fragile, Technology Dependent Children. When Eric turned 21, the Department restricted the funding of the nursing services to such a degree that Eric would have no choice but to go to an institution to receive the level of care he requires. Eric’s mother, Donna Radaszewski, filed suit in the United States District Court for the Northern District of Illinois on September 1, 2000, alleging violation of provisions of the Medicaid statute, 42 U.S.C. §1396 et seq. and Constitutional due process and sought to continue nursing services to Eric in his home. On that date, the district court granted plaintiff’s motion for a temporary restraining order. However, on November 6, 2000, the district court denied Ms. Radaszewski’s Motion for a Preliminary Injunction finding that plaintiff had failed to establish that she had a private right of action under 42 U.S.C. §1983. Ms. Radaszewski appealed to this Court on November 6, 2000, in Civil Number 00-
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3929, Radaszewski v. Patla. Her motion for an injunction pending appeal to continue the nursing services was denied by the Court on November 16, 2000. She filed suit in the Circuit Court of the Eighteenth Judicial Circuit in DuPage County, Illinois, on December 1, 2000, seeking an injunction to maintain Eric’s medical services. The state court suit was based solely on claims made under Illinois law. The circuit court granted Ms. Radaszewski’s motion for a temporary restraining order on December 19, 2000, reestablishing Eric’s hours of nursing services at home to what they had been before he had turned 21. That temporary injunction is presently in effect.1
While appeal in the prior litigation was pending before this Court and while the state court proceeding was pending, defendant’s predecessor, on December 1, 2000, sought approval from the United States Department of Health and Human Services to eliminate private duty nursing from its Medicaid Plan for persons age 21 and over. Approval was obtained on February 2, 2001. Based upon the amendment to the State’s Medicaid Plan and upon defendant’s motion, this Court dismissed the pending appeal as moot on March 8, 2001. On October 15, 2001, Ms. Radaszewski, responding to defendant’s motion to dissolve the injunction and dismiss the state case, filed a Supplemental Complaint alleging new counts for violation of Title II of the ADA, 42 U.S.C. §12132 and section 504 of the Rehabilitation Act, 42 U.S.C. §794.
On December 14, 2001 defendant removed the state case to the court below. Plaintiff filed a motion to remand on January 14, 2001 and on April 30, 2002 the court below remanded the state claims but retained plaintiff’s claims based upon Title II of the ADA and section 504 of
1 The history of the proceedings of this dispute is set out in greater detail in plaintiff’s memorandum in support of her motion to remand filed in the court below. Pages one through four of that motion are included in the Appendix. (App. p. A-30).
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the Rehabilitation Act. Defendant filed a motion for judgment on the pleadings in the court below and on September 11, 2002, the court below granted defendant’s motion.
STATEMENT OF FACTS Eric Radaszewski is 23 years old and is disabled. (App. p. A-10). In early 1992, he was diagnosed with brain cancer and a year and one half later he suffered a stroke. (App. p. A-11). As a result, Eric has been and is highly, medically, fragile. (App. p. A-11). Since July of 1994, Eric has lived at home receiving 24 hours of nursing care each day. (App. p. A- 11). In August of 1995, when the family’s medical insurance benefits capped out, Eric began receiving registered nursing care at home under the Medicaid program. (App. p. A-11). Eric was found eligible for the state’s Medicaid waiver program for Medically Fragile, Technology Dependent Children.2 (App. p. A-41). In evaluating the amount of in-home services a child in this waiver program may receive, the Illinois Department of Public Aid (the Department) compares the cost of care the child would require in the institutional setting– a hospital or a pediatric skilled nursing facility–that would otherwise be necessary for the child. 89 Ill.Admin.Code §140.645(c)(3). Based on the estimated cost for the level of the care Eric would need in an institution, the Department’s agents approved a plan of care for Eric consisting of 16 hours per day of skilled nursing services, with an additional 336 hours per year of nursing services to allow Eric’s parents respite. (App. p. A-11). Eric’s parents provided Eric the balance of the 24 hours care Eric
2 Under 42 U.S.C. §1396n(c), states may request that HHS approve waivers of certain federal Medicaid requirements in order to develop community-based treatment alternatives. The three requirements that may be waived are state-wideness, comparability of services and community income and resource rules for the medically needy. For example, in a waiver program, states may seek federal approval to offer certain services only to persons who need them to avoid institutionalization rather than to all persons statewide who qualify for Medicaid. Services provided by a waiver supplement the State’s basic Medicaid Plan.
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requires. Id. The Department approved this care plan annually until Eric turned 21. (App. p. A-13).
On August 5, 2000, Eric turned 21. (App. pp. A-10, A-41). In setting the standards of the waiver under which Eric received assistance, the Department has limited services to persons under 21. (App. pp. A-13, A-41). Eric nevertheless remained eligible for nursing services at home under the then existing State’s basic Medicaid Plan. (App. p. A-12). Instead of evaluating Eric’s eligibility for nursing services at home included in the State’s basic Plan, the Department took the position that the only way that Eric could receive the nursing services that he requires was to leave his home and enter an institution. (App. pp. A-25, A-41- 43). Subsequent to the filing of this case in state court, the Department sought and obtained approval from the United States Department of Health and Human Services to eliminate nursing services at home under its basic Medicaid Plan. (App. p. A-19). Although he is eligible for another waiver program called the Home Services Program, the funding cap the Department has established for this waiver would reduce the amount of nursing services Eric would receive at home to five hours a day. (App. pp. A-13, A-40). This level of service is insufficient to permit Eric to continue to reside at home, and the only alternative offered by state officials for Eric to receive the nursing services he requires is to move into an institution. (App. pp. A-11, A-42).
Eric’s medical professionals are of the opinion that it is critical for Eric to continue to receive nursing services in his home. (App. pp. A-14, A-41, A-42). His treating physician believes that a skilled nursing facility could not meet Eric’s needs. (App. p. A-14). Defendant’s predecessor, in an administrative decision, agreed. (App. p. A-14). The alternative to in-home services for Eric is a hospital, a location where the Department agrees that
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it will pay for Eric’s necessary nursing services. (App. p. A-26). The Department has acknowledged that paying for Eric’s nursing services at home is cheaper than it would be if he had to receive them in a hospital. (App. A-41).
Because he has received needed services at home, Eric has been able to benefit from the loving care of his parents who interact with him on all aspects of daily activities including preparing the food he likes, helping him with his homework, talking with him, playing games, watching sporting events together and engaging in physical play. Eric has participated in several educational activities while living at home. (App. pp. A-34-A-36). He attends the College of DuPage with the assistance of a registered nurse.(App. pp. A-37 - A-38).3
SUMMARY OF ARGUMENT This case is before this Court because the court below granted defendant’s motion for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. Ms. Radaszewski has had no opportunity for discovery and no opportunity to present evidence on her claims. This Court in Forseth v. Village of Sussex, 199 F.3d 363, 368 (7th Cir. 2000), has explained that judgment on the pleadings is subject to de novo review, that all well pled allegations in the complaint are to be taken as true and that all reasonable inferences are to be made in favor of the plaintiff. The Court further explained in Forseth that judgment on the pleadings should be upheld only if appears beyond doubt that plaintiff cannot prove any facts that would support the claim for relief pled in the complaint. Id.
3 This Court has explained that in considering a judgment on the pleadings, it may take into account any possible facts that would support the alleged claim for relief including plaintiff’s supplement of the complaint with factual narration in an affidavit or a brief. See Forseth v. Village of Sussex, 199 F. 3d 363, 368 (7th Cir. 2000)
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The questions raised in this appeal are whether the allegations of the pleadings set forth valid claims under Title II of the Americans with Disabilities Act, 42 U.S.C. §12132 et seq., or section 504 of the Rehabilitation Act, 29 U.S.C. §794. The relevant facts upon which this Court should make that determination are as follows:
Eric Radaszewski is disabled and eligible for Medicaid services. For the six years prior to his 21st birthday, the Illinois Medicaid program paid for Eric to receive nursing services he needs in his home. The Department’s agents determined that it was appropriate to provide Eric this care in his home, and that it was cheaper than paying for Eric’s care in an institution. Nothing has changed since Eric turned 21. He still needs extensive nursing services, and it is still cheaper to provide him those services at home than in an institutional setting. The Department does not contest that it will provide Eric with the “necessary long term care services he needs.” (App. A-26). It asserts it will pay for the nursing care Eric needs in an institutional setting only. It refuses to continue to provide that care in the most integrated setting appropriate for Eric–his home.
The Department’s inflexible position is especially grievous in this case, since the State will not save money by forcing Eric into an institution, yet it will place Eric’s life at imminent risk and cut him off from the continuous nurturing support his family has given him since the onset of his disabilities. The Department’s refusal to modify its policies and continue to provide Eric the nursing services he needs at home, leaving Eric no choice except unjustified segregation and isolation in an institution, is unlawful discrimination under both Title II of the ADA and Section 504. In Olmstead v. L.C., 527 U.S. 581 (1999), the United States Supreme Court held that unjustified segregation of disabled persons into an institution as a prerequisite to receiving
7

services offered by the state is unlawful discrimination and the burden is on the state to demonstrate that its failure to provide such services in the community is a fundamental alteration to its programs such that it cannot reasonably accommodate such a result. Olmstead, 527 U.S. at 602. The facts before this Court indicate that the Department restricts the location of its services to Eric Radaszewski to an institution, even when that location is not necessary. Those facts also indicate that the cost of providing those services is less in the community than in an institution. There are no other facts in the record concerning whether providing such services in the community would result in a fundamental alteration of the Department’s programs. Judgment based upon these pleadings was inappropriate. Plaintiff has stated valid claims under both Title II of the ADA and section 504 of the Rehabilitation Act.
The court below did not reach the merits of the Title II claim because it found that this Court’s decision in Walker v. Snyder, 213 F.3d 344, (7th Cir. 2000), cert denied, 531 U.S. 1190 (2001) precluded an action under Title II of the ADA in federal court. Nevertheless, the court below recognized that the standards under which violations occur under Title II of the ADA and Section 504 are the same. (App. A-8). The district court’s order, based on an erroneously narrow interpretation of discrimination and facts not found in the Supplemental Complaint should be reversed.
The court below dismissed Ms. Radaszewski’s claim under Title II of the ADA based upon the Court’s decision in Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000), cert. denied, 531 U.S. 1190, 121 S. Ct. 1188 (2001), that only the entity and not an individual could be a defendant and that the doctrine of Ex Parte Young did not apply. Plaintiff submits that three recent decisions of the United States Supreme Court, two of them subsequent to this Court’s decision in
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Walker, and the legislative history of Title II of the ADA constitute bases for this Court to reconsider its decision in Walker and find that defendant is a proper party under Title II of the ADA.
ARGUMENT I. Plaintiff Has Stated a Valid Claim for Relief Under Section 504
of the Rehabilitation Act .
Plaintiff’s Supplemental Complaint states claims under Title II of the ADA, 42 U.S.C. §§12131-12165, and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794(a). Section 504 provides that no qualified person with disabilities shall “solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance....” 29 U.S.C. §794(a). Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, program or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C §12132. The district court concluded, and the parties below agreed, that Section 504 is materially identical to and the model for the ADA, except that Section 504 is limited to programs receiving federal financial assistance. (App. p. 8, citing, Rothman v. Emory University, 123 F.3d 446, 451 (7th Cir. 1997), and Crawford v. Indiana Department of Corrections, 115 F. 3d 481, 483 (7th Cir. 1997)). Courts apply the same standards for deciding claims based on Title II of the ADA and Section 504. Id. Title II of the ADA was enacted to extend the protections and rights afforded to persons with disabilities beyond programs receiving
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federal assistance and to clarify Congress’ intent to eliminate segregation of persons with disabilities from American society. Helen L. v. DiDario, 46 F.3d 325, 332-333.(3d Cir. 1995). The Illinois Medicaid program is federally funded, so Section 504 and Title II of the ADA both apply here.
A. The Supreme Court’s Decision in Olmstead v. L.C.: Unjustified Segregation is Discrimination.
In Olmstead v. L.C., the Supreme Court decided that unjustified segregation of persons in institutions severely limits their exposure to the outside community and is discrimination based on disability prohibited by Title II of the ADA. Olmstead, 527 U.S. at 597. States violate the ADA when they limit health care services to institutional settings for people with disabilities who want to be served and can be appropriately served in a home or community based setting, and the states cannot show adequate justification for the limitation. Id. The two plaintiffs had developmental disabilities and mental illness and lived confined in Georgia’s state-run psychiatric hospital. They waited for years for Medicaid funded community-based placement that their physicians recommended. Georgia argued its failure to provide the plaintiffs the services they needed in a community-based setting was not discrimination due to their disabilities. It argued that it was already using all available funds to provide home based services to other persons and that a court order directing the state to transfer the plaintiffs to the community would fundamentally alter its services. Olmstead, 527 U.S. at 598.
The Court rejected Georgia’s argument that discrimination encompasses only uneven treatment of persons with disabilities as compared to persons without disabilities. Instead, the Court found “we are satisfied that Congress had a more comprehensive view of the concept of
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discrimination advanced in the ADA.” Olmstead, 527 U.S. at 598. The Court stated directly that “unjustified isolation ... is properly regarded as discrimination based on disability.” Olmstead, 527 U.S. at 597. In reaching its conclusion that unjustified isolation of persons with disabilities in institutions is in itself a form of discrimination, the Court looked at the history of the ADA, its text, and the implementing regulations promulgated by the Attorney General. The Court placed particular emphasis on the Congressional findings set out in the beginning of the ADA, that “historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;” that “discrimination against individuals with disabilities persists in such critical areas as institutionalization...; ” and that “individuals with disabilities continually encounter various forms of discrimination, including .... failure to make modifications to existing facilities and practices... [and] segregation....42 U.S.C. §§12101(a)(2),(3),(5).” Olmstead, 527 U.S. at 588 (emphasis added).
The Court emphasized that in the text of the ADA, Congress directed the Attorney General to issue regulations to implement Title II of the ADA. Olmstead, 527 U.S. at 601. Congress specified that these regulations should be consistent with the Attorney General’s regulations applicable to recipients of federal funds under §504. 42 U.S.C. §12134(b). One of those §504 regulations, known as the “integration regulation,” requires that “recipients [of federal funds] shall administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R. §41.51(d). The Attorney General had followed Congress’ ADA directive and promulgated an integration regulation patterned on 28 CFR §42.51(d): “a public entity shall administer its services, programs, and activities in the
11

most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. §35.130(d).
In analyzing and affirming the Attorney General’s rationale for the integration regulation, the Court observed that institutional placement of persons who can live and benefit from community settings perpetuates unwarranted assumptions that persons isolated in institutions are incapable or unworthy of community life. Olmstead, 527 U.S. at 601. Confinement in an institution severely diminishes the everyday life activities of individuals with disabilities, impairing among other things, their family relations, social contacts and cultural enrichment. Id. Given Congress’ stated purposes for enacting the ADA, its confirmation of the Section 504 integration regulation within the text of the ADA, and the deleterious effects of isolation and segregation on the lives of persons with disabilities, the Court concluded that “unjustified isolation...is properly regarded as discrimination based on disability.” Olmstead, 527 U.S. at 597.
A plurality of the Court concluded that Georgia could defend against the integration mandate if it could prove that delivery of services in the community would result in a fundamental alteration of its programs and activities. Olmstead, 527 U.S. at 603. The plurality based this conclusion on the Attorney General’s regulation requiring public entities to make reasonable modifications in their practices when necessary to avoid discrimination on the basis of disability, unless the entity can show that the modification would fundamentally alter the nature of the service, program or activity. 28 C.F.R. §35.130(b)(7). The plurality specified that in evaluating a fundamental alteration defense, however, the court must review, in light of the resources available to the state, the cost of providing community-based services, the range of
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services the state provides to others, and the obligation to mete out services equitably. Olmstead,
527 U.S. at 597. In taking the integration and the reasonable modification regulations together
with the express purposes of the ADA, the plurality determined that:
states are required to provide community-based treatment for persons with mental disabilities when the States’ treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.
Olmstead, 527 U.S. at 607.
The congressional findings in the ADA’s text were a key aspect of the Court’s
determination that unjustified segregation is discrimination. The legislative history of the ADA
is replete with references demonstrating Congress’ core concern was ending segregation of
persons with disabilities The legislative history provides an important guide for evaluating not
only what conduct constitutes discrimination under the ADA, but also for evaluating what
alteration would be so fundamental that it would permit public entities to continue segregationist
policies. The House Report includes several such statements :
As in the finding 35 years ago by the Supreme Court in Brown v. Board of Education ... segregation for persons with disabilities may affect their hearts and minds in a way unlikely ever to be undone. .... The ADA is a comprehensive piece of civil rights legislation which promises a new future of inclusion and integration and the end of exclusion and segregation. .... The purpose of Title II is to continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life....
H.Rep. No. 101-485, Part III, 101st Cong., 2d Sess.(1990) at 26, 49. The Senate Report contains
similar statements confirming the concerns that “isolation and discrimination is still pervasive in
our society” and “one of the most debilitating forms of discrimination is segregation.”S. Rep. No.
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101-116, 101st Cong., 1st Sess. (1989) at 6.
During Senate hearings on the ADA, former Senator Lowell Weicker, key sponsor of the
ADA when it was first introduced in 1988, testified about the ongoing segregation in institutions
faced by persons with disabilities:
For years, this country has maintained a public policy of protectionism toward people with disabilities. We have created monoliths of isolated care in institutions and segregated education settings. It is that isolation and segregation that has become the basis of the discrimination faced by many disabled people today. Separate is not equal. It was not for blacks; it is not for the disabled.
Americans with Disabilities Act, Hearing before the Senate Committee on Labor and Human
Resource and the Sub-Committee on the Handicapped, 101st Cong., 1st Sess., at 215 (1989).
In his remarks introducing the bill, Senator Harkin stated that one of the ADA’s purposes is
“getting people ... out of institutions....” 135 Cong. Rec. S4986 (daily ed. May 9, 1989).
Congressman Miller, a co-sponsor in the House commented that “it has been our unwillingness
to see all people with disabilities that has been the greatest barrier to full and meaningful
equality. Society has made them invisible by shutting them away in segregated facilities. 136
Cong. Rec. H2447 (daily ed. May 17, 1990).4
4 These entries from the legislative history had been cited in to the Olmstead Court in the Brief for Respondents, Olmstead v. L.C. by Zimring, 1998 U.S. Briefs 536. These same concerns motivated Section 504. As set forth by the district court in Frederick L. v. Department of Public Welfare, 157 F.Supp.2d 509, 534:
in enacting Section 504, Congress intended to provide for the integration of handicapped persons into mainstream society. The legislative history of the provision contains expressions of this goal. See e.g., 118 Cong.Rec. S3320 (statement of Sen. Williams)(section 504 was intended to ‘achieve the tragically overdue goal of full integration of the handicapped into normal community living....). The purpose of Section 504 has been confirmed by Congress since its enactment...See, e.g., S.Rep. No. 95-890 at 39 (1978)(in adopting Section 504, ‘Congress has made a commitment to the handicapped that, to the maximum extent possible, they shall be fully integrated into the mainstream of life in America’); 135 Cong.Rec. 8507(statement of Sen. Harkin)(‘One of
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Olmstead followed some key cases in the lower courts that recognized Congress intended to eliminate unnecessary segregation and institutionalization of persons with disabilities through the ADA and Section 504. Helen L. v. DiDario, 46 F.3d 325, 329(3d Cir. 1995) cert. denied, Pennsylvania Secretary of Public Welfare v. Idell S. ,513 U.S. 813 (1995), Williams v. Wasserman, 937 F.Supp 524 (D.Md. 1996), Kathleen S. v. Department of Public Welfare of Comm. of Pa., 10 F.Supp.2d 460, 466-471 (E.D.Pa. 1998), Cramer v. Chiles, 33 F.Supp.2d 1342 (S.D.Fl. 1999), Rolland v. Cellucci, 52 F.Supp.2d 231, 236-237 (D.Mass. 1999). The Third Circuit’s 1995 decision in Helen L. was the groundbreaking case in finding that persons with disabilities are entitled to receive treatment in the most integrated setting appropriate to their needs. The plaintiff, a 43 year old mother left paralyzed after contracting meningitis, needed help with some of the essential activities of daily living, like bathing and shopping, but she could do others on her own. She did not need the skilled nursing services of a nursing home, but she was forced to remain in a nursing home apart from her family so that she could obtain the attendant care services for the daily activities she could not do without help. After four years in a nursing home, she was found eligible for a program that would provide her the attendant care services she needed in her own home, but she was placed on a waiting list because the homebased program lacked funding. After another year separated from her family in the nursing home, she brought suit under Title II of the ADA, claiming that the Department of Public Welfare had violated the integration mandate by forcing her to live in the segregated setting of a nursing home. Helen L., 46 F.3d 325, 329(3d Cir. 1995) cert. denied, Pennsylvania Secretary of
the precepts of Section 504 is that segregation of people with disabilities will not be tolerated.’).
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Public Welfare v. Idell S., 513 U.S. 813 (1995). The district court in Helen L. entered summary judgment for the state defendant,
concluding that the state had not discriminated against the plaintiff on the basis of her disability but had been unable to provide her home-based services due to insufficient funds. Helen L., 36 F.3d at 329. The Third Circuit reversed, holding that under Title II of the ADA, persons with disabilities are entitled to receive services in the most integrated setting appropriate to their needs. The court examined the legislative history of both Section 504 and of the ADA, as well as the history of the Attorney General’s integration regulations under both statutes, 28 C.F.R. §41.51(d). and 28 C.F.R. §35.130, and concluded that “integration is fundamental to the purposes of the Americans with Disabilities Act” and that the “ADA and its attendant regulation clearly define unnecessary segregation as a form of discrimination against the disabled.” Helen L., 36 F.3d at 330-333.
Pennsylvania argued in Helen L. that it could not provide the community based attendant care services plaintiff needed in order to leave the nursing home without fundamentally altering its health system. It claimed that funding for both nursing homes and the community-based attendant care program had already been set, and that under the state’s constitution, monies could not be transferred from one program to the other. The court was unpersuaded by the asserted lack of funding and entered judgment for the plaintiff as a matter of law. Helen L., 46 F.3d at 339. Quoting from the House Report on the ADA, the court cautioned that the interpretation of the meaning of a fundamental alteration must be weighed against the core purpose of the ADA and Rehabilitation Act to eradicate segregation:
As with Section 504 of the Rehabilitation Act, integrated services are essential to
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accomplishing the purposes of Title II [of the ADA]....the goal is to eradicate the ‘invisibility of the handicapped.’ ... Separate but equal services do not accomplish this central goal and should be rejected. The fact that it is more convenient, either administratively or fiscally, to provide services in a segregated manner, does not constitute a valid justification for separate or different services under Section 504 of the Rehabilitation Act or under Title II of the ADA. H.Rep. 485(III), 101st Cong.2d Sess. 50 reprinted in 1990 U.S.C.C.A.N. at 473. Helen L., 46 F.3d at 338 (emphasis in the original). Since Helen L. and the Supreme Court’s decision in Olmstead, a number of lower courts have concluded that unnecessary segregation of persons with disabilities in an institution is discrimination and states must prove an asserted defense of fundamental alteration. See, e.g., Bryson v. Shumway 177 F.Supp.2d 78, 99 -101 (D.N.H.,2001), Lewis v. New Mexico Dept. of Health, 94 F.Supp.2d 1217, 1237 -1239 (D.N.M.,2000), Makin ex rel. Russell v. Hawaii, 114 F.Supp.2d 1017, 1034 (D.Haw.1999) ("[I]f a state is found to have discriminated against disabled individuals through the administration of a program, it must modify the program to remedy the situation unless it can prove that any modification would fundamentally alter the program."). Courts that have ultimately concluded that the requested services would constitute a fundamental alteration for the state did so after close analysis of the state’s cost-based defense. Frederick L. v. Department of Public Welfare, 217 F.Supp.2d 581 (E.D. Pa. 2002), Williams v. Wasserman, 164 F. Supp.2d 591 (D. Md. 2001). B. Plaintiff Has Pled Sufficient Facts to Show Unlawful Discrimination Under Olmstead. Olmstead applies to Eric’s situation, but unlike the plaintiffs in Olmstead who sought to get into the community, the state has been providing Eric cost-effective skilled nursing services in his own home. Turning Olmstead on its head, the Department’s policies will push him out of that successful setting into an institution, for the remainder of his life. Eric needs nursing services.
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The Illinois Medicaid program pays for nursing services, both in institutions and through its waiver programs for home-based care. The most integrated and appropriate setting for those services is his home. The benefit of home-based nursing services to Eric cannot be overstated. In the opinion of his physician, they are the reason Eric is alive. Nonetheless, the Department refuses to continue to spend the same amount of money or less for skilled nursing services to sustain Eric in the community. Under Olmstead, these facts establish a prima facia case of discrimination. Although the district court agreed that all facts alleged in the complaint must be taken as true and all reasonable inferences drawn in favor of the plaintiff, it omitted a key factual allegation in its recitation of the facts: that it is less expensive to continue to provide Eric the nursing services he has received in his home than to pay for that care in an institution. (App. A21).
Although the Supreme Court in Olmstead recognized that the state may assert a defense by showing the modification the plaintiff seeks would work a fundamental alteration on the state’s program, it is a defense the state must prove. The trial court must weigh the factors of a fundamental alteration defense, set out in the plurality’s decision. This case has not progressed beyond the pleadings phase. Plaintiff has had no discovery on the actual burden the modification in policy Eric seeks would impose on the state. The record at this stage shows only that Eric needs and wants continued nursing services in his home, that his home is the most integrated setting for the needed services, and that this continued delivery of services is at least as costeffective as receipt of the services of an institution.
To the extent it is deemed appropriate to consider a defense of fundamental alteration at this stage, without factual examination of the cost and burden on the state, plaintiff contends that
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no such fundamental alteration is required and that through very small modifications in its existing Medicaid program, Defendant could continue to provide cost-effective nursing services at home for Eric. Like Georgia, Illinois has home and community based service plans in place. Eric started receiving nursing services under one of them -- the Department’s Medicaid waiver program for Medically Fragile, Technology Dependent Children -- in August 1995. Since then he has received 16 hours per day private duty nursing services in his home with an additional annual 336 private duty nursing respite hours to spell his parents. The Department’s agents approved and arranged this service plan year after year. It was based on the determinations that Eric needed the nursing services, that he could benefit from those services at home, and that it would be not more expensive to provide Eric those services at home than to pay for the institutionalization he would otherwise require.5 These determinations are also the key elements of the Olmstead analysis.
Eric also meets the qualifications for the Department’s Medicaid waiver program for disabled adults–the Home Services program. When Eric turned 21, the Department’s agents evaluated Eric for continued nursing services at home under this program, but used a formula that capped the funding he could receive to an amount that would pay for only five hours nursing services per day. That cap, however, is too low to allow Eric to remain in the community.
By altering its policies and procedures very little to expand its current home and community based services plans, the Department could continue to provide Eric services in his home at no extra cost. The Department could waive the age cap for participants in the waiver
5 The regulations for this waiver program provide that the client requires the level of care provided by a hospital or nursing facility, that the care can be appropriately provided outside of an institution, and that the estimated cost to the State for care outside an institution for the client is not greater than the cost to the State for care of the client in an institution. 89 Il.Admin.Code §§140.645(c)(2),(3).
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program for children who survive past age 21 and for whom cost of care in the community remains less than the cost of care in an institution. Alternatively, the Department could increase the funding cap under the Home Services Waiver Program to reflect the actual cost-effectiveness of home-based services, at least for cases in which cost-effectiveness has been established through years of experience in the children’s waiver program. In neither event would the modification alter the essential nature of the programs–to provide appropriate, cost-effective services, including nursing services, to enable persons with disabilities to remain at home, integrated in their communities.
Because the state can accommodate Eric’s need for services in the community at no extra cost, it is really a much easier case than Olmstead. The Court noted that Georgia needed to continue to operate state hospitals, with all the facility and personnel costs, for those persons with mental disabilities for whom community placement would not be appropriate or desired. The plurality felt this fact needed to be weighed in determining whether and the extent to which the additional expense increased or accelerated community based services would work a fundamental alteration on the State’s program. That tension is not present is this case. Illinois does not run the hospital or nursing facilities that would provide Eric institutional care. Irrespective of whether Eric receives services at home, in a hospital or in a skilled nursing facility, Illinois will be paying private contractors. The Department’s refusal to pay for the nursing services Eric needs to allow him to remain at home, when it will pay out those same dollars or more to pay for his institutional care, is exactly the unjustified segregation and isolation the Olmstead Court found to be unlawful discrimination.
This Court has recognized the assessment of what is a reasonable accommodation or a
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fundamental alteration essentially requires a balancing of the benefit to the person with disabilities and the burden on the state entity. It is “highly fact- specific and determined on a case-by-case basis.” Washington v. Indiana High Sch. Athletic Ass’n., Inc., 181 F.3d 840, 846-848 (7th Cir.1999). The court must weigh the cost to the defendant in making the accommodation against the benefit to the plaintiff. Dadian v. Village of Wilmette 269 F.3d 831, 838 -839 (7th Cir. 2001) (citing Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir.1995) and United States v. Village of Palatine, Illinois, 37 F.3d 1230, 1234 (7th Cir.1994)). At this stage of the proceedings, without evidence of costs to the state, judgment on the pleadings in inappropriate.
C. The District Court’s Decision Ignored Olmstead Although plaintiff’s claim is founded on Olmstead, the district court’s opinion does not mention the case. Its rationale is based on its conclusion that Section 504 and the ADA do not require the state to create new programs, and that these statutes only require even-handed treatment of persons with disabilities relative to persons without disabilities. (App. A-9). It also asserts that Illinois provides no in-home nursing services to anyone over age 21, ergo Illinois treats “handicapped” and “nonhandicapped” persons alike and plaintiff’s discrimination claims must fail. Id. The court’s conclusions, however, are not consistent with Olmstead or the record before it.
The district court relied on Southeastern Community College v. Davis, 442 U.S. 397 (1979), Alexander v. Choate, 469 U.S. 287(1985) and Traynor v. Turnage, 485 U.S. 535 (1988), for its conclusion that Section 504 requires only evenhanded treatment of qualified handicapped persons relative to persons who do not have disabilities. (App. p.9). These cases, however, predate the Supreme Court’s decision in Olmstead. In fact, the district court’s definition of unlawful
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discrimination was the definition put forward by the dissent in Olmstead, and the dissent cited these same three cases. Olmstead, 527 U.S. at 619-622. As described above, the Court rejected this definition of discrimination as too narrow. Olmstead, 527 U.S. at 598. Similarly, the majority rejected the dissent’s opinion, also advanced by the district court in this case, that the case was really about a standard of care, finding instead that the plaintiffs were seeking the care Georgia provided and which they needed in the community rather than isolated in an institution. Olmstead, 527 U.S. at 603, n.14.
Based on its narrow definition of discrimination, the district court concluded that Section 504 and the ADA do not require the State to create and fund a program for the disabled that does not already exist. (App. p. 8). But this conclusion misses the point of the integration mandate. Public entities must provide services they in fact provide (here, nursing services) in the most integrated setting appropriate to the person with disabilities, unless to do so would work a fundamental alteration on the state’s program. Integration into the community is a right under the ADA and Section 504, and a state must have a compelling reason for refusing to adjust its policies to achieve integration. Whether a state has an existing program that meets the needs of a person with disabilities consigned to an institution may be a factor in the factual examination of the burden on the state to provide more integrated services, but it cannot be a fundamental alteration as a matter of law. Otherwise, states could sidestep the integration mandate just by limiting all services to the institutional setting, regardless of the cost or burden on the state to provide alternative care in the community.
Moreover, the Department’s existing home-based care program for adults also covers inhome skilled nursing services. The district court’s statement that no one over 21 get in-home
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nursing services is contradicted in its own recitation of the facts, where the court recounts how the
Department approved funding the equivalent of five hours per day in home nursing for Eric once
he turned age 21. (Compare App. p. A-6, A-9). Plaintiff alleges that the Department refuses to
adjust its policies or procedures to continue the nursing services Eric needs to avoid
institutionalization, even though continuing to provide the service would be cost-effective. Those
allegations, if proven, establish unjustified segregation in violation of the integration mandate,
sufficient to withstand a motion for judgment on the pleadings. 6
The district court also relied on Rodriguez v. City of New York, 197 F.3d 611 (2d Cir.
1999). In Rodriguez, decided four months after Olmstead, the Second Circuit held that the ADA
and Section 504 do not require New York to provide a certain service in the community described
as “safety monitoring” that would assist persons with disabilities to remain in their homes. New
York provided a range of other home-based personal care services. In rejecting the plaintiffs’
claims for the service, the Second Circuit incompletely characterized the scope of discrimination
prohibited under the ADA, stating that “the ADA requires only that a particular service provided
to some not be denied to disabled persons.” Rodriguez, 197 F.3d at 618. As described in detail
above, that narrow definition of discrimination was rejected by the Court in Olmstead. The case
6 Rather than make small alterations in its policies and practices to make possible continued delivery of the services Eric needs in his home, the Department has done exactly the opposite and restricted its services. Prior to January, 2001, the Illinois Medicaid plan included coverage for private duty nursing services for Medicaid recipients generally. When the Department refused to provide the services in the State Medicaid plan to Eric, plaintiff sued to enforce the plan. While the case was pending on appeal before this Court, the State amended its plan to delete private duty nursing services outside of its waiver programs. The legality of the Department’s procedure to make the change is the subject of the litigation the district court remanded to the state circuit court. Nonetheless, the Department took deliberate action contrary to the integration precepts set out in Olmstead by altering its plan to make community-based services less accessible.
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is also distinguishable on its facts from the present case, since the safety monitoring services the plaintiff sought were not provided in an institution or in the community.
Consistent with Olmstead, the state must make reasonable modifications in its policies and procedures. The state has already decided that the home-based nursing services Eric has received for the past six years is not greater than the cost of Medicaid covered services he would need in the institutional setting appropriate for him. At no additional expense to its Medicaid program the Department can continue to provide Eric the services he needs, the services that are life-saving for Eric, in his home. Instead, inexplicably, the Department will force now 23 year old Eric into an institution, which, its own hearing office has acknowledged, will endanger Eric’s life. Under Olmstead, defendant’s actions constitute unlawful discrimination.
II Plaintiff may properly bring her claim under Title II of the ADA against defendant pursuant to Ex Parte Young.
Relying on this Court’s decision in Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000), cert. denied, 531 U.S. 1190, 121 S. Ct. 1188 (2001), the court below dismissed Eric’s claim under Title II of the ADA. In Walker, a sight-impaired inmate of the Illinois Department of Corrections alleged a violation of Title II of the ADA for failure by the Department to accommodate his disabilities by furnishing books on tape, a brightly lit cell by himself, and transfer to a less restrictive prison. Walker v. Snyder, 213 F. 3d at 345.7 In its decision, this Court reached three conclusions. First it determined that the proper defendant in suits brought under Title II of the
7 The United States District Court had dismissed Walker’s Title II ADA claim for failure to state a claim for which relief can be granted after determining that Walker had received the reading aids he was requesting and that his remaining claims were too vague to support relief. Walker v. Washington, 1998 U.S. Dist. LEXIS 9128 (N.D. Ill. June 11, 1998). Walker appeared pro se before the district court and the Seventh Circuit.
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ADA is either the public entity or an official who stands in for that entity. 8 Walker v. Snyder, 213
F. 3d at 346. Second, the Court recognized the distinction between suing a state official
personally and suing that official in his or her official capacity concluding, as the Eighth Circuit
had found in Alsbrook v. Maumelle, 18 F.3d 995, 1005 n.8 (8th Cir. 1999)(en banc), “that as a rule
there is no personal liability under Title II . . . .” 213 F.3d at 346. Finally, the Court stated that
because Title II is drafted in terms of a public entity, a suit against a public official based upon the
doctrine of Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441 (1908), is not possible because such a
suit is an action against state officers as individuals and not against the state itself and the only
proper defendant under Title II of the ADA is the public body as an entity. Walker v. Snyder, 213
F. 3d at 347. Thus, this Court, relying on the “entity” language contained in section 12132, found
that the ADA barred utilization of Ex Parte Young as a means for an aggrieved person to obtain
prospective injunctive relief against a public entity and that the recognized distinction between
suing a state official in his or her official capacity as contrasted from his or her personal capacity
did not change the result.9
8 Title II of the ADA at 42 U.S.C. §12132 provides:
Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity. 9 The Court of Appeals for the Eighth Circuit subsequently explained that its decision in Alsbrook did not constitute a rejection of a suit for prospective injunctive relief against a state official for violation of Title II of the ADA under the doctrine of Ex Parte Young and that there was a distinction between proceeding against a state official in his or her individual capacity (Alsbrook) and a suit against a state official in his or her official capacity. Gray v. Wilburn, 270 F.3d 607, 609 (8th Cir. 2001)
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Plaintiff submits that the decision in Walker should be reconsidered and changed by this Court for three reasons. Two of those reasons emanate from three recent decisions of the United States Supreme Court, one of which was handed down a year before Walker and, the other two subsequent to the decision in Walker. Those reasons are as follows: First, the decision in Walker to restrict the application of Ex Parte Young and to not recognize the distinction between suits against state officials in their official as contrasted to personal capacities, conflicts with the established balance between the sovereign immunity of the States and the supremacy of laws arising under the Constitution and the laws of the United States as recognized by the United Supreme Court in Alden v. Maine, 527 U.S. 706, 119 S. Ct. 2240 (1999). Second, the Supreme Court’s decisions in Verizon Maryland. Inc. v. Public Service Commission of Maryland, ___ U.S. ___, 122 S.Ct. 1753 (2002) and Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S.Ct. 955 (2001), both issued subsequent to this Court’s decision, have upheld the efficacy of Ex Parte Young in cases where the underlying federal statute upon which suit was brought, like 42 U.S.C. §12132, was drafted in terms of an entity. In contrast to Walker, in Garrett, the Supreme Court relied upon the distinction between suits brought against state officials in their official versus personal capacities to state its belief that Ex Parte Young suits were available under Title I of the ADA. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. at 374, n. 9. Third, the effect of this Court’s decision is to call into serious question the ability of any private individual to obtain redress from a state entity in any court. Such an effect is directly inapposite to the intent of Congress in enacting Title II of the ADA.
A. The Balance Between Sovereign Immunity and the Supremacy Clause In Alden v. Maine, 527 U.S. 706, 119 S. Ct. 2240 (1999), the United Supreme Court
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confronted the issue whether federal statutes could mandate that a state court consider a federal
claim which would otherwise be precluded by the state’s own interpretation of its sovereign
immunity. In deciding that the state’s declared sovereign immunity precluded suit against the
state in state court and the Eleventh Amendment prevented suit in federal court, the Court
specifically recognized the tension that existed between a state’s immunity from suit and the need
to enforce federal law under the Supremacy Clause stated in Article VI, Section 8 of the United
States Constitution:
This Constitution and the Laws of the United States which shall be made in Pursuance thereof . . ., shall be the supreme Law of the Land and the Judges in every State shall be found thereby, any Thing in the Constitution or Laws of any State to the Contrary, notwithstanding.
In explaining the resolution of that tension, the Supreme Court explained that although
sovereign immunity precluded suits brought under federal statutes against the state entity in both
federal courts under the Eleventh Amendment and state courts under sovereign immunity, suits
for declaratory or injunctive relief brought against state officials in their official capacity under Ex
Parte Young were necessary if the Constitution is to remain the supreme law of the land. Alden v.
Maine, 527 U.S. at 747. In Green v. Mansour, 474 U.S. 64, 68, 106 S. Ct. 423 (1985) the Court
explained:
Both prospective and retrospective relief implicate Eleventh Amendment concerns, but the availability of prospective relief of the sort awarded in Ex parte Young gives life to the Supremacy Clause. Remedies designed to end a continuing violation of federal law are necessary to vindicate the federal interest in assuring the supremacy of that law. In other words suits against individual state officials in their official capacities was the means
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available for a an aggrieved person to obtain relief from a violation of a federal statute. As this Court recognized in Osteen v. Henley, 13 F. 3d 221, 223 (7th Cir. 1993), “[t]he immunity that the Eleventh Amendment grants does not go so far as to allow state officials to ignore federal law with impunity.”
B. Application of Ex Parte Young to Suits Brought Under Statutes that are Drafted in Terms of Entities
In two decisions issued subsequent to this Court’s decision in Walker, the United States Supreme Court has approved suits brought against state officials under Ex Parte Young when the suit upon which the lawsuit was brought was drafted in terms of entities. Verizon Maryland, Inc. v. Public Service Commission of Maryland, ___ U.S. ___, 122 S. Ct. 1753, (2002) was a case brought by a telecommunications provider under the Telecommunications Act of 1966, 47 U.S.C. §252(e). Verizon challenged a decision of the Public Service Commission of Maryland that had ordered it to make payments to another telecommunications provider. It brought suit in federal court against the Commission and its individual members pursuant to 47 U.S.C. §252(e)(6). That subsection provides:
In a case in which a State fails to act as described in paragraph (5), the proceeding by the Commission under such paragraph and any judicial review of the Commission’s action shall be the exclusive remedies for a State commission’s failure to act. In any case in which a State commission makes a determination under this section, any party aggrieved by such determination may bring an action in an appropriate Federal district court to determine whether the agreement or statement meets the requirement of section 251 of this title and section. Maryland asserted immunity from suit in federal court based upon the Eleventh Amendment.
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The Court responded that it need not reach the Eleventh Amendment issue since Verizon could bring suit against the individual commissioners in their official capacities, pursuant to the doctrine of Ex Parte Young. Verizon Maryland, Inc. v. Public Service Commission of Maryland, 122 S.Ct. at 1760. In so ruling, the Court explained that the process that a court must undertake in determining the applicability of Ex Parte Young is a “straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.” Verizon Maryland. Inc. v. Public Service Commission of Maryland, 122 S.Ct. at 1760.
Similarly, Board of Trustees of the University of Alabama v. Garrett was a suit brought under Title I of the ADA, 42 U.S.C. §12132 et seq., by disabled state employees alleging that the State of Alabama had discriminated in its employment practices. The complaint sought only damages. 531 U.S. at 360. The Court ultimately decided that Alabama was protected by Eleventh Amendment Immunity because Title I of the ADA was not legislation enacted under Section 5 of the Fourteenth Amendment. 531 U.S. at 374. However, the Court, after deciding that the Eleventh Amendment applied, expressly explained that the standards of Title I of the ADA could still be enforced by private individuals in actions for injunctive relief under Ex Parte Young.
Our holding that Congress did not validly abrogate the State’s sovereign immunity from suit by private individuals for money damages under Title I does not mean that persons with disabilities have no federal recourse against discrimination. Title I of the ADA still prescribes standards applicable to the States. Those standards can be enforced by the United States in actions for money damages, as well as by private individuals in actions for injunctive relief under Ex Parte Young, 209 U.S. 123, 52 L. Ed. 714, 28 S. Ct. 441 (1908). [531 U.S. at 374, n. 9.] The significance of this explanation by the United States Supreme Court to this Court’s decision in Walker is that just as Title II of the ADA, 42 U.S.C. §12132, is drafted in terms of
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“public entities,”10 the applicable provision of Title I of the ADA is similarly drafted. Section
12112(a) of Title 42 provides that:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
The statute defines a “Covered entity” as “an employer, employment agency, labor organization,
or joint labor-management committee. “ 42 U.S.C. §12111(2). This Court had previously noted
that suits generally under the ADA, Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§2000e(b), and the Age Discrimination in Employment Act, 42 U.S.C. §630(b), had to be brought
against the employer as an entity, rather than against an individual. See, EEOC v. AIC Security
Investigations, 55 F. 3d 1276, 1280-1281 (7th Cir. 1995), and cases cited therein. Nevertheless
in Garrett, when dealing with actions by a department of the State, the Supreme Court found that
private individuals could sue to enforce the provisions of Title I under the Ex Parte Young
doctrine. Since both Title I and Title II of the ADA apply to an “entity,” the Court’s determination
that a private person can maintain a suit under the doctrine of Ex Parte Young under Title I also
applies to suits brought under Title II.11
10 42 U.S.C. §12131(1)(A) includes in the definition of a Public entity, any State or local government.
11 The Court’s decisions in Garrett and Verizon are consistent with its previous decisions regarding the liability of public entities by suits against officials brought against them in their official capacities. Kentucky, DBA Bureau of State Police v. Graham, 473 U.S. 159, 105 S. Ct. 3099 (1985) involved a claim against a state enforcement agency for attorney’s fees. The Court explained that in a suit against state officials in an official capacity action, “the entity’s policy or custom must play a part in the violation of federal law. 473 U.S. at 166. In this case, Ms. Radaszewski has alleged that “[u]nder the Department’s policy, Eric may receive Medicaid payment for necessary long term care services in institutions, meaning skilled nursing facilities
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The Garrett and Verizon decisions that individual state officials may be sued is consistent
with the rationale of Ex Parte Young and the concept that it acts as a necessary fiction to prevent
ongoing violations of federal law by government officials. In Ex Parte Young, 209 U.S. 123, 28
S. Ct. 441, 454 (1908), the Court explained that when the:
act to be enforced is alleged to be unconstitutional, and if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of complaints is a proceeding without the authority of and one which does not affect the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional.12
In Gregory v. Administrative Office of the Courts of the State of New Jersey, 168 F. Supp. 2d
319 (D. N.J. 2001), involving allegations of violation of Title II of the ADA, the court explained
that the Ex Parte Young doctrine has been called an “obvious fiction” because when a state
official is sued to enjoin the enforcement of an official state policy, the real party in interest is the
state and the suit proceeds as if the state had been the named party. 168 F. Supp. 2d at 327-29.
Thus, a suit against a state official under such circumstances is a suit against an entity, the state,
and is permissible under Ex Parte Young. In Carten v. Kent State University, 282 F.3d 391 (6th
Cir. 2002), a suit brought by a university student against university officials alleging a failure to
accommodate his disability in violation of Title II of the ADA, the court rejected the argument
that Title II of the ADA imposes its requirement only on public entities. Instead, the court found
and hospitals, but not at home.” (Supplemental Complaint for Injunctive Relief, Count VI, Paragraph 40). Moreover, the seminal case regarding the obligation of the state to provide services in the community rather than in institutions for appropriate disabled individuals, Olmstead v. L.C., 527 U.S. 581(1999), proceeded as a case against state officials for prospective injunctive relief no doubt under the authority of the doctrine in Ex Parte Young.
12 The Supreme Court has extended the Ex Parte Young doctrine to violations of federal statutes as well as the United States Constitution. See Green v. Mansour, 474 U.S. 64(1985).
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that under the doctrine of Ex Parte Young the state officials when acting in their official capacities are the entity. 282 F. 3d at 396.
In addition, the federal courts in this country, especially since the Supreme Court’s decision in Board of Trustees of the University of Alabama v. Garrett, have consistently determined that actions brought under Title II of the ADA may proceed under the doctrine of Ex Parte Young. Garrett was decided on February 21, 2001. Since that time, the Courts of Appeals for the First Circuit, Kiman v. New Hampshire Dept. of Corrections, 301 F.3d 13, 17, n.2 (dicta), the Second Circuit, Garcia v. S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 115 (2nd Cir. 2001) (dicta), the Fifth Circuit, Reickenbacker v. Foster, 274 F.3d 974, 977 n. 9 (5th Cir. 2001) (dicta), the Sixth Circuit, Carten v. Kent State University, 282 F.3d 391, 396 (6th Cir. 2002) (suit by university student regarding accommodation of a disability), the Eighth Circuit, Klingler v. Director, Dept. of Revenue, 281 F.3d 776 (8th Cir. 2002) (suit alleging that fee charged for placards allowing use of accessible parking spaces to the disabled), and the Ninth Circuit, Armstrong v. Davis, 275 F.3d 849, 880 (10th Cir. 2002) (suit alleging failure to accommodate disabled prisoners) have so determined. No court of appeals since Garrett has found to the contrary.
Similarly, since the Garrett decision at least nine United States district courts have applied the Ex Parte Young doctrine to proceedings brought pursuant to Title II of the ADA.13 Most of
13 Shepard v. Irving, 204 F. Supp. 2d 902, 919 (E.D. Va. 2002) (disabled college student seeking accommodation of her learning disability), A.A. v. Board of Educcation, Central Islip Union Free School District, 196 F. Supp. 2d 259 (E.D. N.Y. 2002) (suit challenging supervision of special education by State), Daigle v. Louisiana Dept. of Social Services, 2002 WL 126647 (E.D. La.2002) (suit by college student to obtain reasonable accommodation of her disability), Fetto v. Sergi, 181 F. Supp. 2d 53, 75 (D. Conn 2001) (student challenging individual education plan), Parker v. Michigan Dept. of Corrections, 2001 WL 1736637 (W.D. Mich.2001) (failure of
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these decisions have expressly followed footnote 9 of the decision in Garrett14 and some have
specifically rejected the argument that only an entity can be sued under Title II.15 This Court has
recognized the propriety of reconsidering a prior decision when intervening Supreme Court
decisions affect that decision and especially if reconsideration will resolve a conflict among the
circuit court of appeals. See, Ashley v. nited States, 266 F.3d 671, 674 (7th Cir. 2001), Devines v.
Maier, 728 F.2d 876, 880 (7th Cir. 1984).
C. Contrary to Legislative Intent
The decision in Walker has closed the door in federal court for an aggrieved person to
redress violations of Title II of the ADA by a state. A suit against the entity, under the decision,
contravenes the Eleventh Amendment and suit cannot be brought against a state official in his or
her official capacity. The decision concludes, “Walker must pursue all of his ADA theories in
state court.” But a suit in state court under Title II of the ADA becomes problematic because of
prison to accommodate prisoner’s disability), Gregory v. Administrative Office of the Courts of the State of New Jersey, 168 F. Supp. 2d 319, 330 (D. N.J. 2001) (hearing impaired man seeking accommodations in order to record court proceedings), Doe v. Sylvester, 2001 WL 1064810 (D. Del. 2001) (mentally impaired woman challenging restrictiveness of care), Rowe v. Maine Dept. of Human Services, 156 F. Supp. 2d 35, 60 (D. Me. 2001) (challenge to Maine’s disenfranchisement of persons under guardianship by reason of mental disability), Frederick L. v. Dept. of Public Welfare, 157 F. Supp. 2d 509, 531 (E.D. Pa. 2001) (institutionalized adults challenge segregation at state facilities).
14 A.A. v. Board of Education, 196 F. Supp. 2d 259 (E.D.N.Y., April 18, 2002) (page cites not indicated in decision), Daigle v. Louisiana Dept. of Social Services, 2002 WL 126647 (E. D. La. 2002), Fetto v. Sergi, 181 F. Supp. 2d at 57, Parker v. Mich. Dept. of Corrections, 2001 WL 1736637 (W.D. Mich. 2001), Gregory v. Administrative Office of the Courts of New Jersey, 168 F. Supp. 2d at 327, Doe v. Sylvester, 2001 WL 1064810 (D. Del.2001), Frederick L. v. Dept of Public Welfare, 157 F. Supp. 2d at 531.
15 A.A. v. Board of Education, 196 F. Supp 259, Gregory v. Administrative Office, 168 F. Supp. 2d at 328 - 329, Doe v. Sylvester, 2001 WL 1736637, Rowe v. Maine Dept. of Human Services, 156 F. Supp. 2d 35.
33

the decision in Walker. For instance, in Illinois the Illinois Supreme Court has interpreted the State’s sovereign immunity requirements as permitting an approach similar to Ex Parte Young authorizing suits against State officials when that official acted illegally in contravention of the Constitution or a duty imposed by law. Nichol v. Stass, 192 Ill. 2d 233, 238, 735 N.E.2d 582 (2000), Senn Park Nursing Center v. Miller, 104 Ill 2d 169, 188-89, 470 N.E. 2d 1029 (1984). The Court’s decision in Walker establishes an obstacle in proceeding in state court under Title II. Indeed, the defendant has already asserted Walker as a bar for plaintiff to bring her ADA claims in state court in this case. (App. p. A-25).
To preclude the ability of a person adversely affected from obtaining relief under Title II of the ADA would permit states to disregard with impunity the provisions of that statutory provision and would contravene the legislative intent of the ADA. That intent was to provide disabled persons with a “full panoply of remedies” See H.R. Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 98 (1990); H.R. Rep. No 485, Pt. 3, 101st Cong., 2d Sess. 52 (1990). In 42 U.S.C. §12133 Congress expressly incorporated the remedies, procedures and rights set forth in the Rehabilitation Act, 29 U.S.C. §794(a)(2). The Rehabilitation Act had adopted the remedies of Title VI of the Civil Rights Act of 1964. 42 U.S.C. 2000d et seq. While the language of Title VI does not specifically provide for suit by a private individual against a recipient of federal funds, 42 U.S.C. §200d-7(a)(1) certainly implies one by providing that states shall not be immune from suit under the Eleventh Amendment of the Constitution of the United States for violations of Title VI and Section 504 of the Rehabilitation Act. The United States Supreme Court confirmed the right of private individuals to bring suit under the Civil Rights of 1964 in Alexander v. Sandoval, 532 U.S. 275, 280, 121 S.Ct. 1511 (2001). Similarly, courts have confirmed the right of private
34

individuals to bring suit against state officials in their officials under Ex Parte Young for violations of section 504 of the Rehabilitation Act. See, e.g., Brennan v. Stewart, 834 F.2d 1248, 1255 (5th Cir. 1988). Thus, it is properly presumed that Congress was aware of this state of the law when it drafted 42 U.S.C. §12133. See, Bragdon v. Abbott, 524 U.S. 624, 645 (1988). As the United States District Court for the District Court of Delaware has noted in response to whether Ex Parte Young applies to Title II actions for injunctive relief against state officials, Congress’ explicit adoption of the remedies and rights set forth in Section 504, indicates its intention that suits under Title II under Ex Parte Young are appropriate. Doe v. Sylvester, 2001 WL 1064810 (D. Del. 2001). Accordingly for all of these reasons, plaintiff respectfully submits that this Court should reconsider its prior decision and determine that a suit against the Director of the Illinois Department of Public Aid under 42 U.S.C. §12132 is proper.
CONCLUSION For all of the foregoing reasons, Donna Radaszewski, plaintiff-appellant in this case, respectfully requests this Court to reverse the decision of the court below entering judgment on the pleadings against her.
Respectfully submitted,
______________________________ One of plaintiff-appellant’s attorneys
35

ATTORNEY’S CERTIFICATION UNDER RULES 32(a)(7)(B) I certify as counsel for the plaintiff that this brief submitted in support of her appeal satisfies the type-volume limitation set forth in Federal Rule of Civil Procedure 32(a)(7)(B). Specifically, the brief contains 11,704 Words, exclusive of the Disclosure Statement, Table of Contents and the Table of Authorities.
__________________________ Sarah Megan
Prairie State Legal Services, Inc. Eliot Abarbanel Sarah Megan Bernard H. Shapiro
36

350 South Schmale Road, Suite 150 Carol Stream, IL 60188 (630) 690-2130
37

Circuit Rule 31(e)(1) Statement
The undersigned certifies that all of the materials required by Circuit Rule 31(e)(1) to be in the digital version of the Appellant's Brief and Appendix are included, with the exception of the following portions of the Appendix which are unavailable to the Appellant electronically:
-- No. 1: Docket Entries at A-2 -- No. 2: Memorandum Opinion and Order at A-5 -- No. 4: Excerpt from Defendant's Answer to Plaitiff's Supplemental Complaint for
Injunctive Relief at A-25 -- No. 7: Hearing Decision from the Illinois Department of Public Aid, August 16, 2000,
at A-40
_________________________________ Eliot Abarbanel One of Plaintiff's Attorneys
PRAIRIE STATE LEGAL SERVICES, INC. Eliot Abarbanel Bernard Shapiro Sarah Megan 350 S. Schmale Road Suite 150 Carol Stream, IL 60188 630-690-2130
38

APPENDIX
34

APPENDIX TABLE OF CONTENTS
1. Docket Entries .................................................................. A-2 2. Memorandum Opinion and Order .................................... A-5 3. Supplemental Complaint for Injunctive Relief................... A-10 4. Excerpt from Defendant’s Answer to
Plaintiff’s Supplemental Complaint for Injunctive Relief............................................................. A-25 5. Excerpt from Plaintiff’s Memorandum In Support of Plaintiff’s Motion for Remand filed January 30, 2002........................................................... A-30 6. Selected Exhibits from Plaintiff’s Memorandum in Support of Extension of the Temporary Restraining Order, submitted to the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, prior to removal of this action................. A-34 (A) Affidavit of Donna Radaszewski................................ A-34 (B) Affidavit of Paul Wibbenmeyer, R.N........................... A-37 7. Hearing Decision from the Illinois Department of Public Aid, August 16, 2000 .......................................... A-40 8. Circuit Rule 30(d) Statement ............................................. A-44
1

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT DUPAGE COUNTY, ILLINOIS

DONNA RADASZEWSKI, Guardian for Eric Radaszewski, on his behalf,
Plaintiff,
vs.
JACKIE GARNER, Director, Illinois Department of Public Aid,
Defendant.

) ) ) ) ) ) No. 00 CH 1475 ) ) ) ) )

SUPPLEMENTAL COMPLAINT FOR INJUNCTIVE RELIEF Plaintiff Donna Radaszewski, on behalf of her son and ward, Eric Radaszewki, states her Complaint against defendant Ann Patla, Director of the Illinois Department of Public Aid, as follows: COUNT I: VIOLATION OF THE ILLINOIS ADMINISTRATIVE PROCEDURE ACT
5 ILCS 100/1 et seq. (As Original) 1 Plaintiff Donna Radaszewski is the guardian for her disabled adult son, Eric Radaszewski. She brings this action in her capacity as Eric’s guardian on his behalf. 2. Plaintiff and Eric reside in DuPage County, Illinois. 3. Defendant Ann Patla is the Director of the Illinois Department of Public Aid (IDPA). 4. IDPA is the state agency charged with the administration of the Medicaid program in Illinois 5. Eric, born August 5, 1973, is 21 years old. 6. Eric is disabled and receives disability benefits under the federal Supplemental
10

Security Income program. He is eligible for Medicaid. 7. On February 11, 1992, Eric was diagnosed with medulloblastoma, a brain cancer. 8. On December 24, 1993, Eric suffered a mid-brain stroke after he had undergone
surgery, radiation and chemotherapy as treatment for the cancer. 9. The disease, stroke and the subsequent treatment have left Eric with a very low level of
body and mental functioning. He is highly medically fragile. 10. It is the opinion of Eric’s physician that Eric requires private duty nursing services of
a registered nurse, one-on-one, 24 hours per day in order to survive. 11. For the past five years, Eric received private duty nursing care at home by registered
nurses 16 hours per day, with 336 additional hours per year of services from registered nurses to provide Eric’s parents respite. The balance of his 24 hour per day care came from his parents, who were specially trained to provide the necessary services to avoid medical crisis for Eric.
12 This care was paid for by Medicaid. 13. The Medicaid program is a joint federal and state funded program enacted to provide necessary medical assistance to needy disabled persons and families with dependant children, whose income and resources are insufficient to meet the cost of care. 42 U.S.C. §1396, 305 ILCS 5/5-1. 14. Each State participating in the Medicaid program must submit a Medicaid plan to the Secretary of Health and Human Services (HHS) for approval. 42 U.S.C. §1396. 15. The plan must specify the amount, duration, and scope of each service that the state provides in its Medicaid program. 42 U.S.C. §§1396a(10), U.S.C. §1396d(a), 42 CFR §440.230(a).
11

16. Private duty nursing is a service that states may chose to include in their Medicaid

plans. 42 U.S.C. §1396d(a)(8), 42 U.S.C. §1396a(a)(10)(C), 42 CFR §§440.225, 440.80.

17. Federal regulations define “private duty nursing” as nursing services provided to

persons who require more individual and continuous care than is available from a visiting nurse or

than is routinely provided by the nursing staff of a hospital or nursing facility. 42 CFR §440.80.

Under the regulation, the state has the option to provide private duty nursing services in the

recipient’s home, at a hospital or at a skilled nursing facility. 42 CFR §440.80(c).

18. In addition to providing the Medicaid coverage described in their Medicaid plans,

States have the option of requesting approval from HHS to provide home and community based

care services for persons who would otherwise require institutional care that would be paid for by

Medicaid. These services are provided under a range of Medicaid waiver programs that are

authorized under 42 U.S.C. §§1396a(a)(10)(A)(ii)(VI), 1396n(b)-(e). Under this waiver authority,

the Secretary of HHS may grant waivers of certain otherwise applicable Medicaid requirements,

including for example financial eligibility requirements and service limitations. Id.

19.

Illinois has submitted to HHS and obtained federal approval of its Medicaid plan.

20. The Illinois Medicaid plan includes broad coverage for private duty nursing, with the

sole conditions that the private duty nursing is recommended by a physician, that prior approval

from the State agency is sought, and that the nursing care not be provided by a relative. The plan

includes no limitations as to cost or as to where these services must be provided. The sections of

the Illinois Medicaid Plan relating to private duty nursing services, Exhibit A, are attached to and

made a part of this Complaint.

21. Illinois also has expanded its Medicaid program by including several home and

12

community based care Medicaid waiver programs approved by the Secretary of HHS. 22. Under the Home Services waiver program (“HSP”), Illinois provides services that are
not otherwise covered under the Medicaid program, including personal care and homemaker services, to enable disabled adults to remain in their home. The cost of services which may be provided to recipients under this waiver program is limited, however, to the average Medicaid cost of care for persons in skilled nursing facilities.
24. Despite the language of the Illinois Medicaid plan covering private duty nursing with only the limitations described in paragraph 20, above, it is Defendant’s unwritten policy to impose additional restrictions that eliminate private duty nursing for persons aged 21 or older and instead provide such services only through the HSP, its limited home and community based Medicaid waiver program.
25. As Eric’s 21st birthday approached, state officials advised Eric’s mother to contact the Office of Rehabilitation Services (“ORS”) to apply for the HSP as the sole avenue to obtain continued private duty nursing services for Eric.
26. On February 18, 2000, ORS issued a decision limiting Eric’s eligibility for HSP services to a “service cost maximum” of $4,593 per month.
27. This service cost maximum amount reduced funding for Eric’s private duty nursing services to the equivalent of five hours per day.
28. Plaintiff filed an administrative appeal on the ORS decision limiting Eric’s services under the HSP to $4,593 per month, and an administrative hearing was held on July 25, 2000.
29. At this hearing, Eric’s treating physician, Janina Badowska, M..D. testified that it in
13

her medical opinion, Eric requires 24 hour one-on-one skilled nursing care from registered nurses and that the level of care offered by the ORS service cost maximum would leave Eric at great medical risk. She further testified that Eric’s needs could not be met by staffing levels at a skilled nursing facility.
30. On August 18, 2000, Defendant Ann Patla, as Director of IDPA, issued an administrative decision, affirming the ORS decision limiting funding of Eric’s services under the Home Services Program to $4,593 per month, despite a finding of fact in the decision that placing Eric in a nursing facility would place Eric at risk of danger.
31. Under the Illinois Administrative Procedure Act, 5 ILCS 100/1-70, each agency statement of general applicability that implements, applies, interprets, or prescribes law or policy is a “rule” within the meaning of the Act.
32. Defendant’s unwritten policy limiting Medicaid coverage for private duty nursing services for adults to the services provided under the HSP waiver program is a rule of general applicability within the meaning of 5 ILCS 100/1-70.
33. Under 5 ILCS 100/5-40, state agencies must adopt rules pursuant to the notice and comment rulemaking procedure specified in the provision.
34. Because Defendant has not followed the notice and comment rule-making procedure set out in 5 ILCS 100/5-40 for the unwritten policy limiting Medicaid coverage for private duty nursing services for adults to the services provided under the HSP waiver program, the policy is invalid under the Illinois Administrative Procedure Act.
35. Eric will suffer irreparable injury if Defendant is not enjoined from applying this invalid rule to deny Eric the full amount and scope of private duty nursing services described in
14

the Illinois Medicaid plan. 36. Eric has no adequate remedy at law. 37. Eric is indigent and unable to post bond. WHEREFORE, plaintiff respectfully prays for the following relief: A. That this Court enter, without a requirement of a bond, a temporary restraining order, preliminary injunction and permanent injunction enjoining Defendant from applying the invalid limitation on the amount and scope of private duty nursing services available under the Illinois Medicaid plan. B. Such other and further relief as the Court deems equitable and just. COUNT II: VIOLATION OF THE MEDICAID PLAN (As Original) 1. - 30. Plaintiff re-alleges paragraphs one through thirty of Count I as paragraphs one
through thirty of Count II. 31. The Illinois Public Aid Code directs IDPA to establish standards and rules to
determine the amount and nature of medical services to be included in the Medicaid program, including private duty nursing services. 305 ILCS 5/5-4, 5-5.
32. The Illinois Medicaid plan sets out such standards and rules. 33. Defendant has violated the Illinois Medicaid plan by failing to provide Eric the full, amount, duration and scope of private duty nursing services set out in the Illinois Medicaid plan. 34. Eric will suffer irreparable injury if Defendant is not enjoined from failing to afford Eric the full amount and scope of private duty nursing services described in the Illinois Medicaid plan. 35. Eric has no adequate remedy at law.
15

36. Eric is indigent and unable to post bond. WHEREFORE, plaintiff respectfully prays for the following relief: A. That this Court enter, without a requirement of a bond, a temporary restraining
order, preliminary injunction and permanent injunction enjoining Defendant from failing to afford Eric the full amount, duration and scope of private duty nursing services covered in the Illinois Medicaid plan. B. Such other and further relief as this Court deems equitable and just. COUNT III: VIOLATION OF 89 ILL.ADM CODE §140.435 (As Original) 1. - 30. Plaintiff re-alleges paragraphs one through thirty of Count I as paragraphs one through thirty of Count III. 31. The Illinois Public Aid Code directs IDPA to establish standards and rules to determine the amount and nature of medical services to be included in the Medicaid program, including private duty nursing services. 305 ILCS 5/5-4, 5-5. 32. The Department’s rule at 89 Ill.Adm.Code §140.435(b)(2),provides that Medicaid payment “shall be made” for private duty nursing services. 33. Defendant’s refusal to cover medically necessary private duty nursing services for Eric violates 89 Ill.Adm.Code §140.435(b)(2). 34. Eric has no adequate remedy at law. 35. Eric is indigent and unable to post bond. WHEREFORE, plaintiff respectfully prays for the following relief: A. That this Court enter, without a requirement of a bond, a temporary restraining order, preliminary injunction and permanent injunction enjoining Defendant from
16

failing to provide payment for Eric’s medically necessary private duty nursing services. B. Such other and further relief as this Court deems equitable and just.
COUNT IV: BREACH OF CONTRACT (As Original) 1. - 30. Plaintiff re-alleges paragraphs one through thirty of Count I as paragraphs one through thirty of Count IV. 31. The Illinois Medicaid plan is a contract between the Illinois Department of Public Aid and the federal government. 32. Medicaid recipients, including Eric, are the clearly intended and direct beneficiaries of this contract. 33. By failing to afford Eric the full amount, duration, and scope of private duty nursing included in the Illinois Medicaid Plan, defendant is in breach of contract. 34. Defendant’s decision to restrict Eric’s nursing services to the cost maximum of the Home Services Program thereby denying him the benefit of the private duty nursing services described in the Illinois Medicaid plan has injured Eric. 35. Eric has no adequate remedy at law and requires specific performance of the terms of the Medicaid plan in order to obtain relief.
WHEREFORE, plaintiff respectfully prays for the following relief: A. That this Court enter, without the requirement of a bond, a temporary restraining
order and preliminary injunction enjoining Defendant from failing to afford Eric the full amount, duration and scope of private duty nursing services covered in the Illinois Medicaid plan.
17

B. That this Court award plaintiff specific performance of the Illinois Medicaid plan provisions and afford Eric the full amount, duration of scope of private duty nursing services covered in the Plan.
C. Such other and further relief as this Court deems equitable and just. COUNT V: VIOLATION OF THE ILLINOIS ADMINISTRATIVE PROCEDURE ACT
1. - 24. Plaintiff realleges paragraphs one and two, four, six through eighteen, twenty-one and twenty-two, and twenty five through thirty of Count I as paragraphs one through twenty-four of Count V.
25. In March 2001 Jackie Garner replaced defendant Ann Patla as Director of the Illinois Department of Public Aid and endorses all of the actions taken by Ms. Patla relevant to this lawsuit.
26. Eric Radaszewski was born on August 5, 1979. 27. In August, 2000, when Eric turned 21 years old, Illinois’ Medicaid plan, as submitted to HHS, included coverage for private duty nursing, with the sole conditions that private duty nursing services be recommended by a physician, that prior approval from the State agency be sought, and that the nursing care not be provided by a relative. A copy of that provision as it existed at that time is attached to this Complaint as Exhibit A. 28. Despite the language of the Illinois State plan covering private duty nursing with the sole limitations described in paragraph 28, above, it was the unwritten policy of the State to impose additional restrictions that eliminate private duty nursing for persons aged 21 or older and instead provide such services only through the HSP, its limited home and community based Medicaid waiver program.
18

29. On September 1, 2000, plaintiff brought an action in the United States District Court for the Northern District of Illinois against Defendant Patla, seeking to enjoin defendant’s reduction of Eric’s nursing services. Plaintiff claimed that defendant’s actions, deviating from its Medicaid plan, violated the federal Medicaid statute, its implementing regulations and the requirements of due process.
30. The District Court denied plaintiff’s motion for a preliminary injunction, and plaintiff appealed that interlocutory order.
31. On December 1, 2000, plaintiff filed the present case, bringing claims founded on state law that could not be included in the federal law suit. Plaintiffs claims, set out as Counts IIV, included that defendant’s unwritten policy to deny Eric private duty nursing violated the notice and comment requirements of the Illinois Administrative Procedure Act, 5 ILCS 100/1 et seq., the requirements set out in its Medicaid plan, and 89 Ill.Adm.Code 140.435(b), and deprived Eric of his rights as a third party beneficiary of the contract between the Department and the federal government.
32. On December 19, 2001, this Court entered an Order denying Defendant’s Motion to Dismiss and issued a Temporary Restraining Order enjoining Defendant from reducing Eric’s nursing services pending further order.
33. On January 3, 2000, without prior notice to either this Court or to the Seventh Circuit Court of Appeals, the plaintiff or the public, the Department submitted to HHS an amendment to the Illinois Medicaid plan, deleting coverage for private duty nursing services for adults. On February 2, 2001, HHS approved the amendment.
34. On March 16, 2001, IDPA published in the Illinois Register a proposed rule to
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amend 89 Ill.Adm.Code §140.435 and §140.436 to delete Medicaid coverage for private duty nursing services. The “Complete Description of the Subjects and Issues Involved” section of the notice of rulemaking stated that the changes “are being made as clarifications....”
35. On May 23, 2001, pursuant to public request, the Department conducted a hearing on the proposed rules.
36. On July 23, 2001, the Department submitted to the Joint Committee on Administrative Rules (“JCAR”) its Second Notice of Proposed Rulemaking for the proposed amendment.
37. In the section of the Second Notice describing the public comments objecting to the deletion of Medicaid coverage for private duty nursing services for adults, the Department claimed that “the comments received were not related to the rules, or their intended purpose or potential effect” and that the “proposed amendments do not change the Department’s policy on coverage for home health services for adults.” Exhibit B, Second Notice of Proposed Rulemaking, page 8.
38. On August 7, 2001, JCAR reviewed the rules without objection. 39. On September 1, 2001, the Department filed a certified copy of the amended rules with the office of the Secretary of State. 40. Under the Illinois Administrative Procedure Act, 5 ILCS 100/1-70 each agency statement of general applicability that implements, applies, interprets, or prescribes law or policy is a rule within the meaning of the Act. 41. Under 5 ILCS 100/5-40, state agencies must adopt rules pursuant to the notice and comment rule making procedure specified in the provision. Among these requirements, an
20

agency must include in the first notice of rule making a “complete description of the subjects and issues involved.” 5 ILCS 100/5-40(b)(3). During the notice period, the agency must accept from interested persons data, views, arguments or comments and it must “consider all submissions received.” 5 ILCS 100/5-40(b).
42. In promulgating the amendments to 89 Ill.Adm.Code §140.435 and §140.436, defendant has not followed the letter or the spirit of the requirements set out in 5 ILCS 100/540(b). The Department refused to consider the comments of the public on the decision to delete Medicaid coverage for private duty nursing services, having deemed the comments not pertinent to the purpose of the rule making. The Department’s Notice of Proposed Rule Making did not include a complete description of the subjects and issues involved, failing to disclose that it was implementing a policy to delete Medicaid coverage for private duty nursing services for adults or the reasons for not covering those services.
43. Eric will suffer irreparable injury if Defendant is not enjoined from applying its invalid rules to deny Eric the full amount and scope of private duty nursing services he has been receiving under the former Illinois Medicaid plan.
44. Eric has no adequate remedy at law. 45. Eric is indigent and unable to post bond. WHEREFORE, plaintiff respectfully prays for the following relief: A. That this Court enter, without a requirement of a bond, a temporary restraining
order, preliminary injunction and permanent injunction enjoining Defendant from reducing Eric’s nursing services pursuant to the invalid amendment to 89 Ill.Adm.Code §140.435 or §140.436.
21

B. Such other and further relief as the Court deems equitable and just. COUNT VI: VIOLATION OF THE AMERICANS WITH
DISABILITIES ACT: 42 USC §12132 and 28 CFR §35.130. 1. - 39. Plaintiff re-alleges paragraphs one through thirty-nine of Count V as paragraphs one through thirty-nine of Count VI. 40. Under the Department’s policy, Eric may receive Medicaid payment for necessary long term care services in institutions, meaning skilled nursing facilities and hospitals, but not at home. 41. In-home nursing care is the most integrated setting for services for Eric, and is at least as cost-effective as treatment he would receive in an institution. 42. Under Title II of the Americans with Disabilities Act, 42 USC §12132 and its implementing regulations at 28 CFR §35.130, public entities must provide services to persons with disabilities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. 43. Eric is a qualified individual with a disability within the meaning of Title II of the ADA. 44. The Illinois Department of Public Aid of which defendant Patla is Director is a public entity” within the meaning of Title II of the ADA. 45. The Department’s failure to provide Eric Medicaid services for Eric in his home, the most integrated setting for receipt of those services, violates the community integration requirements of Title II of the American with Disabilities Act, 42 USC §12132 and its implementing regulation 28 CFR §35.130.
22

46. Eric will suffer irreparable injury if Defendant is not enjoined from reducing his Medicaid covered nursing services at home forcing him into an institution where his health will be in imminent danger and he will be segregated from his family and the larger community.
47. Eric has no adequate remedy at law. 48. Eric is indigent and unable to post bond. WHEREFORE, plaintiff respectfully prays for the following relief: A. That this Court enter, without a requirement of a bond, a temporary restraining
order, preliminary injunction and permanent injunction enjoining Defendant from failing to afford Eric continued nursing services at home rather than in an institution. B. Such other and further relief as this Court deems equitable and just.
COUNT VII: VIOLATION OF SECTION 504 OF REHABILITATION ACT OF 1973: 29 USC §794 and 28 CFR 41.51(d) 1. - 41. Plaintiff re-alleges paragraphs one through forty-one of Count VI as paragraphs one through forty-one of Count VII. 42. Section 504 of the Rehabilitation Act of 1973 (“Section 504") prohibits discrimination against people with disabilities on the basis of their disabilities in programs and services that receive federal financial assistance. 29 USC §794. 43. Section 504 requires that services must be provided in the most integrated setting appropriate to the needs of individuals with disabilities. 28 CFR §41.51(d). 44. The Department’s failure to provide Medicaid services for Eric in his home, the most integrated setting for receipt of those services, even though it will provide Medicaid services in institutions for Eric, violates Section 504.
23

45. Eric will suffer irreparable injury if Defendant is not enjoined from reducing his Medicaid covered nursing services he currently receives at home, forcing him into an institution where his health will be in imminent danger, and he will be segregated from his family and the larger community.
46. Eric has no adequate remedy at law. 47. Eric is indigent and unable to post bond. WHEREFORE, plaintiff respectfully prays for the following relief: A. That this Court enter, without a requirement of a bond, a temporary restraining
order, preliminary injunction and permanent injunction enjoining Defendant from failing to afford Eric continued nursing services at home rather than in an institution. B. Such other and further relief as this Court deems equitable and just.
Respectfully submitted,
Eliot Abarbanel One of the Attorneys for Plaintiff
PRAIRIE STATE LEGAL SERVICES, INC. Eliot Abarbanel Sarah Megan Bernard Shapiro Attorney No. 67545 350 S. Schmale Road Suite 150 Carol Stream, IL 60188 630-690-2130
24

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DONNA RADASZEWSKI,

)

Guardian, on behalf of Eric Radaszewski, )

)

Plaintiff,

)

)

vs.

)

)

JACKIE GARNER,

)

Director, Illinois Department of

)

Public Aid,

)

)

Defendant.

)

No. 01 C 9551 Judge John W. Darrah

MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR REMAND

Statement of Facts

This is the second time this case has reached federal court. On September 1, 2000 Donna

Radaszewski, the mother of Eric Radaszewski, filed suit in the United States District Court for the

Northern District of Illinois seeking declaratory and injunctive relief on his behalf. Eric is

presently 22 years of age and is extremely medically fragile suffering from a number of medical

conditions that resulted from his enduring brain cancer in 1992 and suffering a mid-brain stroke in

1993. Since those medical events, Eric has required constant, round-the-clock, private duty

nursing services without which he will likely die.

Until he reached the age of 21 on August 5, 2000, the defendant’s16 agency, the Illinois

Department of Public Aid, (“IDPA”) provided funding for 16 hours a day of private duty nursing

16 The term “defendant” refers to Jackie Garner, the present Director of the Illinois Department of Public Aid. At the time this suit was filed the Director was Ann Patla. Pursuant to Rule 25(d)(1), Ms. Garner was automatically substituted for Ms. Patla and the term includes the actions of each.
30

in Eric’s home under the federal Medicaid program. As defendant has acknowledged, Eric would be in danger if he were placed in a nursing home because a nursing home’s staffing could not provide the level of care that he requires. Through a combination of Medicaid assistance and their own efforts, Eric’s parents were able to provide him with the necessary medical services. In August 2000 when Eric reached the age of 21, IDPA reduced its reimbursement to the equivalent of five hours a day of private duty nursing. This created a medical crisis for Eric and his family.
On September 1, 2000, suit was brought claiming that defendant’s act of reducing Eric’s private duty nursing violated specific provisions of the federal Medicaid statute, 42 U.S.C. §1396 et seq., and the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Ms. Radaszewski sought a temporary restraining order which was granted on September 1, 2000. From the outset, defendant’s defense to this lawsuit was that this case did not belong in federal court. Defendant argued that Ms. Radaszewski possessed no private right of action under 42 U.S.C §1983 to challenge alleged violations of provisions of the Medicaid statute or the United States Constitution.
When the district court denied Ms. Radaszewski’s motion for a preliminary injunction on November 16, 2000, based upon defendant’s section 1983 argument and the Court of Appeals for the Seventh Circuit denied her motion for an injunction pending appeal, Ms. Radaszewski brought the present suit in the Circuit Court of the Eighteenth Judicial Circuit in DuPage County, Illinois, seeking an injunction to maintain the level of private duty nursing at 16 hours a day. The DuPage suit was based solely on claims made under Illinois law: that defendant had violated provisions of the Illinois Administrative Procedures Act, 5 ILCS 100/1 et seq., its State Medicaid Plan, Illinois Regulation 89 Ill.Adm.Code §140.35 regarding private duty nursing, and that Eric
31

was the intended beneficiary of the Illinois Medicaid Plan, a contract which was breached when IDPA reduced Eric’s hours of medical assistance from 16 to five hours a day. The circuit court granted Ms. Radaszewski’s motion for a temporary restraining order on December 19, 2000, reestablishing Eric’s hours of private duty nursing to a level of 16 hours a day. That injunction is presently in effect.
On September 7, 2001, defendant filed in state court a motion to vacate the temporary restraining order and dismiss the case as moot. Defendant argued that her act of promulgating a new rule abolishing private duty nursing for all persons over 21 mooted each of plaintiff’s claims made under state law. In response to defendant’s motion, Ms. Radaszewski filed on October 15, 2001, a Motion to Extend the Temporary Restraining Order, a Memorandum in Support of Motion to Extend Temporary Restraining Order and in Opposition to Defendant’s Motion to Vacate and Dismiss, and a Supplemental Complaint for Injunctive Relief attached hereto as Attachment A. The Supplemental Complaint repeated the four counts of the original complaint filed in December 2000 and added three new counts: a count alleging an additional violation of the Illinois Administrative Procedure Act; a count alleging violation of 42 U.S.C. §12132, Title II of The Americans with Disabilities Act and its implementing regulation, 28 CFR §35.130 (ADA); and a count alleging a violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794 and its implementing regulation, 28 CFR §41.51(d) (Rehabilitation Act).
On November 8, 2001, defendant filed a reply memorandum in support of its pending motion to vacate and dismiss (attached hereto as Attachment B). In that memorandum defendant argued that with respect to Ms. Radaszewski’s new count pertaining to the Illinois Administrative Procedure Act that the court had not yet granted plaintiff leave to file its
32

Supplemental Complaint and that on the merits plaintiff’s arguments regarding the state statute were not supportable. (Attachment B at pp. 2 - 7) As to the Supplemental Complaint’s counts regarding the ADA and the Rehabilitation Act, defendant in its reply argued only that leave to file the Supplemental Complaint had not been granted and made no arguments regarding the merits. However, on November 14, 2001, defendant filed an additional memorandum entitled, “Defendant’s Objections to Plaintiff’s Motion for Leave to File Supplemental Complaint and to Extend Temporary Restraining Order.” (Attached as Attachment C). In that memorandum defendant argued that if leave to file the Supplemental Complaint was granted, then it objected to extending the injunction and proceeded to argue on the merits the inapplicability of the ADA and the Rehabilitation Act and the application of the Eleventh Amendment as a bar to these claims. (Attachment C, at pages 3 - 6).
On November 15, 2001, the DuPage County Circuit Court granted plaintiff leave to file its supplemental complaint, extended the temporary restraining order, and found that plaintiff had a probability of success on the merits of her claims. (See Attachment D). On December 10, 2001, defendant filed her answer to plaintiff’s Supplemental Complaint. (See Attachment E.) In that answer defendant alleged several affirmative defenses, including that plaintiff’s count regarding the ADA was barred by the Eleventh Amendment and could not be brought against defendant Director of IDPA. On December 14, 2001, defendant filed a Notice of Removal of the state court case to this Court. Ms. Radaszewski has moved on January 14, 2002, pursuant to 42 U.S.C. §1447(c) that this case be remanded to the state court.
33

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT DUPAGE COUNTY, ILLINOIS

DONNA RADASZEWSKI, Guardian for Eric Radaszewski, on his behalf,
Plaintiff,
vs.
JACKIE GARNER, Director, Illinois Department of Public Aid,
Defendant.

) ) ) ) ) ) No. 00 CH 1475 ) ) ) ) )

AFFIDAVIT I, Donna Radaszewski, having been duly sworn under oath, state as follows: 1. I am the mother and plenary guardian of Eric Radaszewski. 2. I have been actively involved in the care and treatment of Eric since he first developed severe medical problems in 1992. 3. I and my husband, Lester Radaszewski, provide a loving and caring home environment for Eric. He has known no other home during his entire life. 4. We provide a clean and healthy environment for Eric, changing his clothes and bed sheets daily. 5. We make special foods that we know Eric likes and can tolerate, such as waffles, pancakes, and hamburgers. 6. I cut his hair, finger nails, and toe nails at least once a week.
34

7. Eric is very dependent on my husband and me for emotional and psychological support.

8. My husband and I talk with Eric, watch television with him, and play various games

with him. Eric enjoys watching sporting events with my husband and also enjoys doing puzzles

with both of us.

9. We assist in his education by doing homework with him. Since he can’t read, we often

read his homework materials to him and he is able to answer the questions.

I work with

him on his reading and math.

10. My husband often rough houses with Eric, which promotes an emotional attachment

with him.

11. Many of our conversations serve to alleviate Eric’s anxieties about his medical and

physical condition. We talk about how he got the way he is and what he can expect in the future.

12. Eric gets depressed when he is away from us for any period of time. For example, I

was recently hospitalized for several days. Eric became very depressed during that period.

13. When we’re gone from the house, even for brief periods, Eric constantly asks when

we will return.

14. Eric has episodes of dementia; we provide positive reinforcement of where and who

he is.

15. We also attempt to foster his self-sufficiency by requiring him to perform as many

tasks as we think he is capable of.

35

The foregoing is true and accurate to the best of my knowledge and belief, and I would so testify if called upon to do so in a court of law.

_______________________________ Donna Radaszewski

SUBSCRIBED AND SWORN to

before me this day

of

, 2001.

_____________________

NOTARY PUBLIC

36

IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT DUPAGE COUNTY, ILLINOIS

DONNA RADASZEWSKI, Guardian for Eric Radaszewski, on his behalf,
Plaintiff,
vs.
JACKIE GARNER, Director, Illinois Department of Public Aid,
Defendant.

) ) ) ) ) ) No. 00 CH 1475 ) ) ) ) )

AFFIDAVIT I, Paul Wibbenmeyer, having been duly sworn under oath, state as follows: 1. I am a registered nurse. 2. I have been involved in Eric Radaszewski’s care since May 1992. 3. I am the lead nurse and coordinate the care and treatment of Eric by the various nurses working for the Radaszewskis. I have been Eric’s lead nurse since May 1992. 4. I have had extensive training and experience in treating severely disabled patients such as Eric. 5. Since Dr. Badowska’s report in her affidavit of August 31, 2000, Eric’s condition remains the same. Eric continues to experience all the medical conditions which are described in Dr. Badowska’s affidavit. In addition, he continues to require all the nursing services described in Dr. Badowska’s affidavit of August 31, 2000. 6. Fortunately, due to the excellent nursing care received by Eric during the past year, his
37

condition has not deteriorated. 7. Given the technological complexity, skill, and judgment required to administer these
multiple skilled nursing tasks, it is inconceivable that his care could be handled by anyone other than a fully licensed registered nurse on a one-to-one basis.
8. He is at risk of exacerbation of his chronic health problems and they could escalate to acute life threatening problems.
9. All these multiple health problems require the continuous monitoring by someone with the training and education of a registered nurse.
10. It is important to Eric’s care and progress that he remain in his home, where he is comfortable and oriented. He receives consistent care in the home from the same nurses, with very little turnover of staff.
11. His parents are his anchors. Their constant presence contributes greatly to his quality of life. He is very dependent on them. Without their presence, he would be more confused, scared, and frightened. He has not been away from his parents in his entire life.
12. In my opinion, Eric’s condition would markedly deteriorate if he were placed in an institution away from his parents and without the constancy of care that he receives at home.
13. Also, by remaining at home, Eric is able to participate in several educational activities. He attends the College of DuPage with the assistance of a registered nurse for independent learning activities. These activities would not be possible without the constant presence of a registered nurse.
38

The foregoing is true and accurate to the best of my knowledge and belief, and I would so testify if called upon to do so in a court of law.

SUBSCRIBED AND SWORN to

before me this day

of

, 2001.

_____________________ NOTARY PUBLIC

_______________________________ Paul Wibbenmeyer, R.N.

39

Circuit Rule 30(d) Statement The undersigned hereby certifies that all of the materials required by Circuit Rules 30(a) & 30(b) are included in this Appendix.
_________________________________ Eliot Abarbanel One of Plaintiff’s Attorneys
PRAIRIE STATE LEGAL SERVICES, INC. Eliot Abarbanel Bernard Shapiro Sarah Megan 350 S. Schmale Road Suite 150 Carol Stream, IL 60188 630-690-2130
44

 </s> No. 02-3657
______________________________________
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
______________________________________
DONNA RADASZEWSKI, guardian for ERIC RADASZEWSKI,
Plaintiff-Appellant,
v. JACKIE GARNER, Director, Illinois Department of Public Aid,
Defendant-Appellee. ______________________________________
Appeal From The United States District Court For The Northern District of Illinois, Eastern Division
Case No. 01 CV 9551 The Honorable Judge John W. Darrah __________________________________
REPLY BRIEF OF
PLAINTIFF-APPELLANT, DONNA RADASZEWSKI ____________________________
PRAIRIE STATE LEGAL SERVICES, INC. Attorneys for the Plaintiff-Appellant, Donna Radaszewski
Bernard Shapiro Sarah Megan Eliot Abarbanel 350 South Schmale Road, #150 Carol Stream, IL 60188 630-690-2130

TABLE OF CONTENTS Table of Contents....................................................................................................... i Table of Authorities.................................................................................................... ii I. Eric Is Not Receiving New Services...................................................................... 1 II Illinois Statutory Provisions and Administrative Rules
Authorize the State to Pay for the Services Eric Needs in His Home............ 8 III IDPA Changed its Rules During the Course of this Litigation....................... 14 IV Whether It Is a Fundamental Alteration for the State to Provide
Nursing Services to Eric in His Home Is a Factual Question that Is Inappropriate for Disposition by Judgment on the Pleadings............. 16 V. The Court Below Relied Upon this Court’s Decision in Walker v. Snyder and did not Adequately consider the Supreme Court’s Decision in Olmstead in Rendering Judgment Regarding Plaintiff’s Claim of a Violation of Title II of the ADA..................................................................... 19 Conclusion................................................................................................................... 19 Certification Under Federal Rule of Appellate Procedure 32(a)(7)............................ 21 Addendum
i

Table of Authorities Cases Alexander v. Choate, 469 U.S. 287 (1985) .............................................................. 4, 8 Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir 2003)........................................... 1, 19 Dadian v. Village of Wilmette, 269 F. 3d 831 (7th Cir. 2001).................................... 18 Lewis v. New Mexico Dept. of Health, 94 F. Supp 2d 1217 (D. N.M. 2000)............ 18 Makin v. Hawaii, 114 F. Supp. 2d 1017 (D. Hawaii 1999)........................................ 18 Martin v. Taft, 222 F. Supp. 2d 940 (S.D. Ohio 2002)............................................... 18 Oconomowoc Residential Programs, Inc. v. city of Milwaukee, 300 F. 3d 775 (7th Cir. 2002)........................................................................................ 17 Olmstead v. L.C. , 527 U.S. 581 (1999)...................................................................... passim. Pennsylvania Protection and Advocacy v. Dept. Pub. Welfare Of Penn,
243 F. Supp. 2d 184 (M.D. Pa. 2003)......................................................... 7, 18 Senn Park Nursing Center v. Miller, 104 Ill. 2d 169, 470 N.E. 1029 (1984)............... 14 Townsend v. Quasim, __ F.3d __, 2003 WL 1989623 (9th Cir., May 1, 2003)............. 5 Walker v. Snyder, 213 F. 3d 344 (7th Cir. 2000)........................................................... 18, 19 Wong v. Regents of University of California, 192 F. 3d 807 (7th Cir. 1999)................ 18 Statutes 42 U.S.C. §1396d(r) ....................................................................................................... 14 5 ILCS 100/5-5 et seq. .................................................................................................... 15 20 ILCS 2405/3 ............................................................................................................... 10, 11 305 ILCS 5/5-5a .............................................................................................................. 10
ii

305 ILCS 5/5-5.8 ........................................................................................................... 11

Regulations

89 Ill. Admin. Code §140.435 (2001)............................................................................. 15

89 Ill. Admin. Code §140.436 (2001)............................................................................ 15

89 Ill. Admin. Code §140.645 ........................................................................................ 1

89 Ill Admin. Code §140.569 ........................................................................................ 12

89 Ill. Admin. Code §676.10 ....................................................................................... 9

89 Ill. Admin Code §676.30 ......................................................................................... 11

89 Ill. Admin Code §679.20 ........................................................................................ 11

89 Ill. Admin. Code §679.30 .......................................................................................

9

89 Ill. Admin. Code §679.50 ....................................................................................... 11

89 Ill. Admin. Code §682.100 .....................................................................................

9

89 Ill. Admin Code §682.520 ......................................................................................

13

89 Ill. Admin. Code §684.70 ......................................................................................

13

24 Ill. Reg. 7724 (May 26, 2000) ................................................................................

13

Legislative History

H.R. Rep. 100-711, 100th Cong., 2nd Sess.,

reprinted in 1988 U.S.C.C.A.N. 2173, 2186 ..............................................................

8

H.R. Rep. 101-485(II), 101st. Cong. 2d Sess. 84,

reprinted in 1990 U.S.C.C.A.N. 343 ........................................................................

8

iii

I. Eric Is Not Receiving New Services For years Eric has been successfully treated at home through nursing services paid
for by Illinois in the Medicaid waiver program for medically fragile children. The purpose of the program, clearly articulated in DPA’s regulation, is to prevent unnecessary institutionalization of the disabled participants, provided that home based care is cost effective. 89 Ill.Admin.Code §140.645.
Eric is living proof that treatment in a segregated setting, away from his family, consigned to an institution, is unnecessary for him. The cost considerations built into the children’s waiver program continue to apply to these children as they turn 21. He continues to have the same needs. Illinois will still pay for their long-term care at the institution they require--whether hospital or nursing facility. Illinois’ unexplained policy, however, is to impose a cap on the cost of their home-based services at a level that makes it impossible for the neediest of these children, like Eric, to remain at home as they turn 21, even though the cost remains less than institutional care.
This court has recently confirmed that the Rehabilitation Act and the ADA entitle persons with disabilities to care in the least restrictive environment. Bruggeman v. Blagojevich, 324 F.3d 906 (7th Cir. 2003). Defendant does not dispute that Eric is eligible for Medicaid long term care services in an institutional setting, whether in a hospital or nursing facility.
1

Defendant does not dispute that Eric needs the 16 hours a day nursing care he receives at home, and that if he doesn’t continue to receive those services at home, he will have to go to an institution -- a hospital-- to get the nursing care he needs in order to survive. Defendant does not dispute that the services are a cost effective alternative to institutional care. Defendant argues, however, that Illinois’ policy of discontinuing payment for the cost effective nursing care Eric has received at home and requiring Eric to go to an institution is not the unjustified isolation of a person with disabilities prohibited under Olmstead, because Illinois does not have an existing community-based program that permits such extensive home-based nursing services for adults. Defendant’s argument is not consistent with Olmstead and not supported by the state’s own regulations for the HSP program.
Defendant tries to marginalize Eric’s case, mis-characterizing it as an attempt to require Illinois to provide any and all services needed to allow the disabled to live at home. (Def .Brief., p. 15.) Plaintiff seeks continuation of the nursing services Eric has received in his home with Medicaid payment since 1995.1 He was eligible to receive those services because of the state’s own determinations that: (1) this care was appropriate for him, and (2) that it was cheaper to provide the care to Eric in his home than it would be to pay for the alternate, institutional level of care he otherwise requires.
Defendant’s main argument, however, is that in order to state a claim of
1 Defendant refers to the nursing services Eric needs as “shifts.” Plaintiff is unclear as to the source or authority for referring to the services in terms of shifts. Plaintiff seeks the specific services DPA approved for Eric in the children’s waiver program-- 16 hours/day nursing services with 336 hours each year of respite services to relieve his parents.
2

discrimination under Olmstead, the state must have an existing home care program that meets all of Eric’s needs without any modification or adjustment in the program. Defendant argues that Illinois has no such program because once Eric turned 21, he was no longer eligible for the waiver program for children. Defendant argues that Eric cannot meet the eligibility requirements for the Home Services Program (HSP) for adults, because the cost of the nursing services Eric needs exceeds the cap the state has established for that program. Ergo, defendant argues, Eric cannot meet the eligibility requirements of any community-based program, and must go to an institution if he must rely on Medicaid payment for his care. According to defendant, the state can set any criteria it wishes for its home based programs and not run afoul of Olmstead. Eric is not entitled to care in the least restrictive environment, irrespective of how cost effective home-based care is for him.
Olmstead, however, does not support defendant’s argument that the state must have an existing community-based program that meets every need of the person with disabilities, with no modification or accommodation in any state policy or practice. States do not have free rein to establish criteria for community-based programs that have the effect of unnecessarily segregating persons with disabilities in institutions, and then turn around and claim they are beyond the reach of the ADA because the institutionalized, disabled person cannot meet the eligibility requirements of the community-based program. If that were true, no case would ever progress to evaluation of fundamental alteration described in Olmstead. Indeed, the Olmstead plaintiffs could not have made out a claim, since Georgia argued that one of the criteria for community placement was funding for the placement and that the
3

plaintiffs weren’t eligible for placements unless and until funding for those specific placements became available. Olmstead v. L.C. , 527 U.S. 581, 594 (1999). There were no “existing” community-based services that would encompass the Olmstead plaintiffs at the time they filed their lawsuit. The ramification of defendant’s existing community-based service argument is that there could never be any Olmstead claims, because logically, existing home-based programs would either meet the needs of persons with disabilities who are institutionalized (or at risk of it), or the persons with disabilities would not meet the eligibility criteria for the home-based programs.
Defendant describes footnote 14 of the majority’s opinion in Olmstead as the “key factor” set out in the case, in support of his claim that there must be an existing home-based program that meets Eric’s needs without any modification in order for plaintiff to state a claim under Olmstead. (Def. Brief, p. 160.) In footnote 14, however, the Court is not referring to the existing community-based services the state in fact provides. The Court is referring to the existing, segregated services the State provides. The Court was responding to the dissent’s suggestion that the decision imposed on states the duty to provide a certain level of benefits to persons with disabilities. Justice Ginsburg responded in footnote 14 that the ADA does not “require states to provide a certain level of benefits to individuals with disabilities” but explained that with respect to services they do provide, they must adhere to non-discrimination principles outlined in her opinion. In other words, if a state limited Medicaid payment for hospital care to 14 days per year, as in Alexander v. Choate, 469 U.S. 287 (1985), a person with disabilities would not have a claim to 365 days of home based-
4

care as an alternative to hospital care, since the ADA does not guarantee a level of care. But where, as here, the state does provide long-term institutional care 365 days per year, but refuses to pay for cost effective home-based services as an alternative to that care, the question becomes not whether, but where the state provides services, and the antisegregation principles absent fundamental alteration set out in Olmstead apply.
The Ninth Circuit Court of Appeals recently decided this very issue in Townsend v. Quasim, ___ F.3d ___, 2003 WL 1989623 (9th Cir., 2003). Levi Townsend, in his eighties, a bi-lateral amputee with diabetic peripheral vascular disease, was in a community-based care program Washington State made available to persons with disabilities as an alternative to the long term institutional care they would otherwise require. Washington gave the community-based care choice only to persons who were categorically eligible for Medicaid. For those whose incomes exceeded the categorically needy level, but who met the qualifications for Medicaid as medically needy, Washington offered long term care in an institutional setting only. When Mr. Townsend’s income increased slightly above the categorically needy level, the state sent him a notice that within 30 days he would have to leave the successful community care setting in which he had been receiving care and enter a nursing home or lose Medicaid payment for his care.
In defending against Mr. Townsend’s Olmstead claim, Washington argued that it had no existing community-based program for the medically needy, and that Olmstead applied only where the state had such an existing program. The Townsend court examined the ADA, the integration regulation, and the Court’s rationale in Olmstead, and concluded that the
5

state’s policy of providing long term care services in a segregated setting only is a form of
discrimination based on disability. It held that the ADA required reasonable modification of
policies having this segregating effect unless the state could show such modification would
fundamentally alter the nature of the services offered by the state. The appropriate focus is
on whether the state provides the needed services in a segregated setting, but not in an
integrated one, and why this segregation is necessary:
The precise issue is not whether the state must provide the long term care services sought by Mr. Townsend and the class members–but in what location these services will be provided. Mr. Townsend simply requests that the services he is already eligible to receive under an existing state program ... be provided in the community-based home where he lives, rather than the nursing home setting the state requires. See Helen L. v. DiDario, 46 F.3d 325, 337-39 (state violated the ADA’s integration mandate by not providing state-funded attendant care services for which plaintiff was eligible in her own home, rather than a nursing home).
The court rejected Washington’s “no existing community care” defense, concluding that:
Characterizing community-based provision of services as a new program of services not currently provided by the state fails to account for the fact that the state is already providing those very same services. If services were determined to constitute distinct programs based solely on the location in which they were provided, Olmstead and the integration regulation would be effectively gutted. States could avoid compliance with the ADA simply by characterizing services offered in one isolated location as a program distinct from the provision of the same services in an integrated location.
2003 WL 1989623 at *5.
That is just what defendant is attempting to do here, by characterizing the in-home
nursing services as a distinct service, when what Eric needs, at home or in an institution, is
skilled nursing services. Eric does not need any of the residential services of an institution.
He only needs nursing care. To get the Medicaid payment he needs for that care, Illinois
now requires him to go to an institution. Under Olmstead, that practice violates the ADA,
6

unless the state can show a fundamental alteration is required. Defendant argues that plaintiff has failed to state a prima facie claim under Olmstead,
because its officials have not found Eric eligible for home-based services in excess of the cap. (Def. Brief, p. 24.) This however, is just another way of stating defendant’s argument that Illinois must have an existing community care program that meets Eric’s needs. Its officials find that Eric isn’t eligible for services in excess of the cap, because they impose the cap, not because he doesn’t require continuation of the same level of nursing services the state had approved for him for years as a cost effective alternative to institutional care. The Court in Olmstead stated that placement in a community setting is in order when the state’s “treatment professionals have determined that community placement is appropriate.” 527 U.S. 581, 587. Its further explanation of this criterion makes clear that it was concerned with the medical opinions of the state’s public health officials as to whether community-based treatment would help the person with disabilities, not state officials’ opinions as to eligibility criteria related only to affirming a policy of segregation. The Court elaborated that courts could normally defer to the “reasonable medical judgments of public health officials” as to whether the persons with disabilities consigned to an institution could benefit from and handle community based care. Olmstead v. L.C., 527 U.S. 581, 602. See also, Pennsylvania Protection and Advocacy v. Department of Public Welfare of Pennsylvania, 243 F.Supp.2d 184, 190-192 (M.D. Pa. 2003), following the same interpretation. As described above and in plaintiff’s opening brief, Illinois has confirmed its approval of home-based services as appropriate and beneficial for Eric for years. It is this fact which makes it so difficult to understand the
7

state’s action to end those services when he turned 21.2
II. Illinois Statutory Provisions and Administrative Rules Authorize the state to Pay for the Services Eric Needs in His Home
Illinois has an existing program that can cover the in-home nursing care Eric needs.
As defendant acknowledges at pages six and 22 of his brief, IDPA is willing to provide
nursing services to Eric in his home through the HSP. In her administrative decision
regarding the services Eric could receive when he turned 21 issued in 2000, defendant’s
2 In the first section of his argument, defendant discusses Section 504 and the ADA without regard to the Supreme Court’s Olmstead decision. Def . Br. 12-14. Defendant notes that in enacting the ADA, Congress explicitly expressed its intent that the ADA be interpreted consistently with Alexander v. Choate, H.R. Rep. 101-485(II), 101 Cong., 2d Sess. 84 (1990). Defendant appears to be suggesting that Congress was endorsing that part of the Court’s decision in Alexander regarding even-handed treatment of the disabled, an argument rejected by the Court in Olmstead. Rather, that Congressional Report made reference to the decision in Alexander in the context of defining what services constituted discrimination under Title II of the ADA, including the notion that discrimination could be shown by disparate impact, not just intentional conduct:
Subparagraph 102(b)(3) incorporates a disparate impact standard to ensure that the legislative mandate to end discrimination does not ring hollow. This standard is consistent with the interpretation of section 504 by the U.S. Supreme Court in Alexander v. Choate, 469 U.S. 287 (1985). The Court in Choate explained that members of Congress made numerous statements during passage of section 504 regarding eliminating architectural barriers, providing access to transportation, and eliminating discriminatory effects of job qualification procedures. The Court then noted: "These statements would ring hollow if the resulting legislation could not rectify the harms resulting from action that discrimination by effect as well as by design." 469 U.S., at 297.
H.R. REP. 101-485(II)(reprinted in 1990 U.S.C.C.A.N. 343), see also H.R. REP. 100-711, 1988 U.S.C.C.A.N. 2173, 2186, with respect to the Fair Housing Amendments, “discrimination against handicapped persons is not limited to blatant, intentional acts of discrimination. Acts that have the effect of causing discrimination can be just as devastating as intentional discrimination. In Alexander v. Choate, the Supreme Court observed that discrimination on the basis of handicap is "most often the product, not of invidious animus, but rather of thoughtlessness and indifference–of benign neglect."
8

predecessor stated: “All parties are in agreement that the grievant is eligible for Home Service program services.” (A. P - 41). Defendant argues that state rules establish a cap for the HSP, called a service cost maximum (SCM), equal to an amount that would not exceed the cost of care in a nursing facility. In support of the assertion of the existence of such a limitation, defendant cites four Illinois administrative rules: 89 Ill. Admin. Code §§676.10, 676.30(j), 682.100(g) and 682.100(h). First, none of the rules cited uses the cost of care in a nursing facility as a limitation. Second, a review of the underlying statute and Illinois rules pertaining to the HSP indicates that in fact no such limitation exists but rather that IDPA has discretion to negotiate an appropriate rate of reimbursement, so long as the amount does not ultimately exceed the amount that would be charged by a hospital - the same approach to reimbursement that IDPA offered to Eric before he turned 21.
A. The Cited Rules None of the four rules cited mentions a cost limitation pegged to what IDPA would pay at a nursing home, as defendant asserts. Administrative rule §676.10 describes the purpose and types of home services programs stating in subsection (a) that the HSP waiver is designed to prevent unnecessary institutionalization of individuals who “may instead be satisfactorily maintained at home at a lesser cost to the state.” Rule §676.30(j) is one of the definitions contained in the Definition rule for HSP’s and defines the “Home Services Program (HSP)” as “a state and federally funded program designed to allow Illinois residents, who are at risk of unnecessary or premature institutionalization, to receive necessary care and services in their homes, as opposed to being placed in an institution.” Rule §682.100(g)
9

appears in the HSP eligibility section entitled “General Eligibility Criteria,” and states that a customer must “obtain certification from a physician . . . that the individual is in need of long-term care and this care can safely and adequately be provided in the individual’s home. . . .” Subsection (h) provides that the customer “not require in-home services that are expected to cost more than the cost the state would pay for institutional care for an individual with a similar DON score.” As will be discussed directly below, state administrative rules would establish that SCM as the cost of a hospital.
B. The Statute and Administrative Rules Do Not Limit Reimbursement for HSP Nursing Services to the Cost at a Nursing Home The Illinois Public Aid Code authorizes IDPA to obtain a waiver from The United States Department of Health and Human Services “to allow payment for home and community-based services . . . .” 305 ILCS 5/5-5a. Under Illinois law, another agency, the Illinois Department of Human Services (DHS), administers the program. 20 ILCS 2405/3(f). The statute directs DHS to establish a program of services to prevent unnecessary institutionalization of . . . persons in need of long term care who are established as . . . disabled as defined by the Social Security Act, thereby enabling them to remain in their own homes or other living arrangements.” 20 ILCS 2405/3(f). Among the services that DHS is authorized to reimburse are home nursing services. 20 ILCS 2405/3(f)(2). The statute provides a cost limitation for these services:
The services shall be provided to eligible persons to prevent unnecessary or premature institutionalization, to the extent that the cost of the services, together with the other personal maintenance expenses of the persons, are reasonably related to the standards established for care in a group facility appropriate
10

to their condition. 20 ILCS 2405/3(f). Thus, the statute establishes two requirements that are relevant here: the cost of services is subject to limitation standards [set by DHS] and those limitations are pegged to the group facility appropriate to the recipient’s medical condition, not limited to the cost of services at a nursing home. IDPA determined that the group facility appropriate to Eric’s condition is a hospital when it approved him for nursing services before he was age 21.
DHS has promulgated rules that establish relevant standards. They indicate that in the presence of exceptional circumstances, the rate is set to meet the medical needs of the recipient, subject to the statutory limitation just described. DHS rules establish service cost maximums using a system of determination of need (DON). 89 Ill. Admin. Code. §§679.20 establishes the process for determining a recipient’s need; 89 Ill. Admin. Code. §§679.30 establishes a scoring system based upon that process; and 89 Ill. Admin. Code. §§679.50 sets service cost maximums based upon the DON score. The maximum amount for an individual served under the HSP is presently $2,329.00 each month. 89 Ill. Admin. Code §679.50(b). That amount is far less than what a person such as Eric needs to remain in the community. However, both the statute and the administrative rules recognize that there are individuals with substantial medical needs. Accordingly, the legislature has provided in the context of nursing homes the concept of “exceptional care” providing that the rate of payment to the nursing home “shall be negotiated with the facilities offering to provide the exceptional medical care.” 305 ILCS 5/5-5.8a(a). The statutory subsection concludes by
11

stating that “[p]ayment for exceptional medical care shall not exceed the rate that the Illinois Department [IDPA] would be required to pay under the Medical Assistance Program for the same care in a hospital.” (Emphasis added). Subsection (b) of the statutory provision directs IDPA to adopt rules in order to implement the statutory mandate.
Still in the context of nursing homes, IDPA has established by rule the “Exceptional Care Program.” 89 Ill. Admin. Code §140.569. The rule defines “exceptional medical care” as “the level of care with extraordinary costs related to services which may include nurse, ancillary specialists services, and medical equipment and/or supplies that have been determined to be a medical necessity.” 89 Ill. Admin. Code §140.569 (a)(2). That subsection goes on to explain that this category may include “persons who are in need of exceptional care services and who would otherwise be in an alternative setting at a higher cost to the Department [IDPA].” IDPA had previously determined Eric eligible for the Children’s Medically Fragile, Technology Dependent, Disabled Persons Under 21 waiver, a requirement of which is that the cost of providing medical services to Eric in his home would be less than the cost to the state if those services were provided in a hospital, the level of care that the Department had determined that Eric needed. Thus, under the statute and regulation, IDPA is authorized to pay a nursing home up to the amount that it would reimburse a hospital for Eric’s exceptional medical services.
The exceptional care procedures for nursing homes are also utilized in making payments for medical services in a person’s home under the HSP. While the SCM for inhome services is generally limited by the DON score as discussed above at a maximum of
12

$2329.00 a month, DHS, by administrative rule, has provided for an exceptional care rate in the following terms: “Cases involving ventilator dependent customers and other customers with exceptional care needs whose need for care cannot be met by the SCM may have a rate established by Department of Public Aid (DPA) per 89 Ill. Admin. Code §684.70(c). 89 Ill. Admin. Code §682.520(c). The language “and other customers with exceptional needs” was added by an amendment to this rule adopted on and made effective as of May 26, 2000. 24 Ill. Reg. 7724. Eric is a customer with exceptional care needs as defined in 89 Ill. Admin. Code §140.569(a). Section 684.70(c) permits the SCM to be exceeded utilizing a higher rate established by IDPA. The exceptional care rate that the statute authorizes, as discussed directly above, can be as much as what it would cost the state to provide services to Eric in a hospital. As defendant explains in his brief at page 6, IDPA utilizes exceptional care procedures in determining services that will be offered under the HSP at home.
In February 2000, ORS determined that Eric’s complex medical diagnosis made him eligible for “exceptional care” in a nursing facility and thus he was eligible for an SCM of $4,593 per month for in-home services instead of the standard SCM of $1,857 allowed for a DON score of 70. Def. Brief, p. 6. Defendant’s description of the procedure is correct. The limitation he states, as the above argument indicates, is wrong. Illinois law does provide for a person such as Eric to receive services at home under the HSP as needed so long as the state would save money. The record on appeal in this judgment on the pleadings indicates that it would.
13

III. IDPA Changed its Rules During the Course of this Litigation. Defendant’s argument that Eric is seeking a new service not offered in this state,
overlooks the fact that when Eric’s mother brought this lawsuit after Eric turned 21, state law provided for nursing services at home for all persons, both under and over age 21. Both in its State Medicaid Plan and in the Illinois Administrative Code, IDPA authorized, without any limitation based upon age, nursing services in a person’s home. The Illinois Supreme Court has found that Illinois’ State Medicaid Plan is an administrative rule. Senn Park Nursing Center v. Miller, 104 Ill. 2d 169, 470 N.E.2d 1029, 1034 (1984).
Under procedures established by the United States Department of Health and Human Services (HHS), a state, utilizing a pre-printed template provided by HHS, checks which Medicaid services it will provide. For each service chosen, the state can attach a page indicating any limitations it is establishing for the service. The Illinois Plan in effect when Eric turned 21 checked private duty nursing services as a medical service that the state would provide. IDPA then set forth the limitations that would apply to this service in the authorized attachment, none of which are based upon age:
8. PRIVATE DUTY NURSING SERVICES Provided only when recommended by the physician. Requires prior approval. Services cannot be covered if provided by a relative. The Attachment (Add. - 8-9) included in a second paragraph the following additional language which the Department had added to its description of limitations on services, because under the Medicaid Statute, 42 U.S.C. §1396d(r)(5), any such limitations could not
14

apply to medically necessary services for children under age 21: Limits on services or treatments are not applicable to EPSDT (Healthy Kids ) clients. All services or treatments which are medically necessary to correct or lessen health problems detected or suspected by the screening process must be provided to individuals under age 21.
This same language disclaiming any limitations for children under age 21 was added, for example, to the limitations on Home Health Services, described in the same attachment to the plan. (See Add.9).
Similarly, IDPA’s published rules also provided for in-home nursing services and private duty nursing services. 89 Ill. Admin. Code §§140.435 and 140.436. Neither of those regulations, (Add.-10-13) contained any limitations based upon age. After Ms. Radaszewski filed suit in state court in this matter alleging that IDPA followed an unwritten policy to impose additional restrictions that eliminated nursing services at home for persons aged 21 or older (App. p. A-13), and alleged a violation of the Illinois Administrative Procedure Act, 5 ILCS 100/5-5 et seq. (APA), defendant sought and obtained approval from HHS to change its State Medicaid Plan and eliminate private duty nursing as a covered Medicaid service. Defendant’s predecessor then unsuccessfully argued in state court that Ms. Radaszewski’s case was moot. Instead the state trial court enjoined the modification of Eric’s nursing services, finding that defendant had not complied with the requirements of the APA. Thereafter, IDPA began the administrative process which amended administrative rules 89 Ill. Admin. Code §§140.435 and 140.436 to eliminate the provision of nursing services at a person’s home.
15

Thus, the facts here are more extreme than in Olmstead. There Georgia provided services in an institutional setting but failed to allow disabled persons who needed those services to receive them in the community. Here state law provided for the necessary services in the community but IDPA has sought to eliminate the community as a place where a disabled person such as Eric can receive the services. More so than in Olmstead, IDPA’s affirmative actions seeking to remove the community as a place where such services can be obtained is a violation of Title II of the ADA and section 504 of the Rehabilitation Act. IV. Whether It Is a Fundamental Alteration for the State to Provide Nursing Services to Eric in His Home Is a Factual Question that Is Inappropriate for Disposition by Judgment on the Pleadings.
Defendant argues, at p. 25 of his brief, that the plaintiff’s case was subject to dismissal even if she alleged a set of facts constituting a prima facie case, unless she could plead facts which show that the modifications she seeks are reasonable. Defendant then goes on to characterize the modifications sought by the plaintiff as “facially unreasonable”, and further states that they would “completely change the HSP’s modest focus and purpose”. (Def. Brief, p. 25) Defendant offers no authority whatever for his statement that the nursing services plaintiff seeks would completely change the focus and purpose of the HSP and children’s waiver programs. He then states that the focus and purpose of the HSP program is “to cover a modest mix of homemaking and personal care services for disabled individuals who would otherwise have to be in a nursing facility, regardless of their financial eligibility for Medicaid.” (Def. Brief, p. 25) As described above, the purpose of the home-based programs, as articulated in Illinois’ authorizing legislation and in the administrative
16

regulations, is to prevent unnecessary institutionalization where to do so is cost-effective. The regulatory framework of the HSP authorizes the services Eric needs at home to avoid institutionalization.
Defendant’s characterization of a modification as bringing about a complete change in focus of a program, without any evidentiary basis to support that statement, is entirely without merit. If anything, the record on defendant’s motion for judgment on the pleadings shows that continuing Eric’s home-based nursing services would be a cost savings for the state. As described in plaintiff’s opening brief at page 20, Illinois does not own and operate the long-term care institutions Eric would need to go to, so it does not finance both the operation of long-term care institutions as well as that of a home-based program, as was the case in Olmstead. Here the state will either pay the institutional provider for Eric or pay less for nursing to provide him with in-home care. Illinois need only increase the unnecessary cap it has imposed as the slight modification required here, and it has the authority to do so under its existing program. Plaintiff has met the requirements for pleading a prima facie case that only reasonable accommodation need be made to accommodate Eric’s needs for continued home-based care.
At the very least, this is a disputed, factual issue that cannot be decided in a motion for judgment on the pleadings. This Court has determined that a reasonable modification or accommodation inquiry is a highly fact-specific inquiry and requires balancing the needs of the parties. An accommodation is unreasonable if it imposes undue financial or administrative burdens on the defendant. A court may look at financial and administrative
17

costs and burdens in deciding this issue. Oconomowoc Residential Programs, Inc. v. City of Milwaukee, 300 F.3d 775, 784 (7th Cir. 2002); Dadian v. Village of Wilmette, 269 F.3d 831 (7th Cir. 2001).
Other courts have declined to rule on a summary basis absent a factual inquiry concerning whether the sought for service was a reasonable modification, or a fundamental alteration of, the state’s program. See Wong v. Regents of University of California, 192 F.3d 807 (9th Cir. 1999); Martin v. Taft, 222 F.Supp.2d 940 (S.D. Ohio 2002); Lewis v. New Mexico Dept. of Health, 94 F.Supp.2d 1217, 1238-39 (D.N.M. 2000); and Makin v. Hawaii, 114 F. Supp.2d 1017, 1033-36 (D. Hawaii 1999). In all these cases the courts declined to rule on a motion to dismiss or motion for summary judgment on the grounds that the determination of reasonable accommodation or fundamental alteration are factual inquiries which render them inappropriate for summary disposition.3
The district court below was wrong to have dismissed this case on a motion for judgment on the pleadings, without having taken any evidence on the question of the reasonableness of the proposed modifications. The district court’s failure to take evidence on this issue contravenes Olmstead, and should, therefore, be reversed and remanded.
V. The Court Below Relied Upon this Court’s Decision in Walker v. Snyder and did not
3 Defendant cites Pennsylvania Protection and Advocacy, Inc. v. Dept. of Public Welfare, 243 F.Supp.2d 184 (M.D. Penn. 2003), on p. 18 of his brief, indicating that court found in favor of the defendant on summary judgment based on a defense that the state lacked the resources for the community based program which plaintiff sought. However, there was a detailed statement of undisputed facts which formed the basis of the summary judgment motion in that case.
18

Adequately consider the Supreme Court’s Decision in Olmstead in Rendering Judgment Regarding Plaintiff’s Claim of a Violation of Title II of the ADA
The district court dismissed the plaintiff’s ADA claim based on this Court’s decision in Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000). Subsequently, the central holding of Walker v. Snyder -- that a state cannot be sued in federal court for prospective relief under Title II of the ADA -- was overturned by this Court’s decision in Bruggeman v. Blagojevich , 324 F.3d 906 (7th Cir. 2003). It is the plaintiff’s position that because the district court dismissed her Title II ADA claim based on a decision which was subsequently reversed by this Court, this case should be remanded to the district court for reconsideration of plaintiff’s ADA claim in light of Bruggeman v. Blagojevich. The district court never reached the merits of plaintiff’s Title II ADA claim. When this Court reversed the district court’s decision in Bruggeman, it commended to the parties and the district court the U.S. Supreme Court decision of Olmstead v. L.C., 527 U.S. 581 (1999), in which the Supreme Court indicated the purpose of the ADA and the integration regulation associated with it was prevention of isolation or segregation of disabled individuals. Considering that the district court, in dismissing plaintiff’s claims, did not so much as mention Olmstead, it would seem appropriate to remand this case with directions to reconsider in light of Bruggeman and Olmstead.
CONCLUSION For all of the foregoing reasons, Donna Radaszewski, plaintiff-appellant in this case, respectfully requests this Court to reverse the decision of the court below entering judgment on the pleadings against her.
19

Prairie State Legal Services, Inc. Bernard H. Shapiro Sarah Megan Eliot Abarbanel 350 S. Schmale Road, #150 Carol Stream, IL 60188 630-690-2130

Respectfully submitted,
_____________________________ One of plaintiff-appellant’s attorneys

20

ATTORNEY’S CERTIFICATION UNDER RULES 32(a)(7)(B) I certify as counsel for plaintiff that this brief submitted in support of plaintiff’s appeal satisfies the type-volume limitation set forth in Federal Rule of Civil Procedure 32(a)(7)(B). Specifically, the brief contains 5628 words, exclusive of the Table of Contents and the Table of Authorities.
_______________________________ Eliot Abarbanel
Prairie State Legal Services, Inc. Eliot Abarbanel Bernard H. Shapiro Sarah Megan 350 S. Schmale Road, #150 Carol Stream, IL 60188 630-690-2130
21

ADDENDUM

Addendum 1: Text of Cited Statutory and Regulatory Provisions. . . . . . . . . . . . . . . . . . . . . . . Add.- 2 2: Illinois State Medicaid Plan, August 2000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Add.- 8 3: Text of Ill. Admin. Code §§140.435 and 140.436 as reprinted from IDPA’s
Proposed Rule Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Add.- 10 4: Defendant’s Answer to Plaintiff’s Supplemental Complaint for
Injunctive Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Add.- 14
Add. - 1

Addendum of Cited Statutory and Regulatory Provisions
305 ILCS 5/5-5a
§§ 5-5a. Waiver for home and community-based services. The Department shall apply for a waiver from the United States Health Care Financing Administration to allow payment for home and community-based services under this Article. The Department, in cooperation with the Department on Aging, the Department of Human Services and any other relevant State, local or federal government agency, may establish a nursing home pre-screening program to determine whether the applicant, eligible for medical assistance under this Article, may use home and community-based services as a reasonable, lower-cost alternative form of care. For the purpose of this Section, "home and community-based services" may include, but are not limited to, those services provided under subsection (f) of Section 3 of the Disabled Persons Rehabilitation Act
305 ILCS 5/5-5.8a(a)
(a) For the provision of exceptional medical care, the Illinois Department of Public Aid may make payments only to skilled nursing facilities that substantially meet the licensure and certification requirements prescribed by the Department of Public Health. Only the Department of Public Health shall be responsible for determining whether licensure and certification requirements for skilled nursing care facilities have been substantially met. The rate of payment shall be negotiated with the facilities offering to provide the exceptional medical care. A facility's costs of providing exceptional care shall not be considered in determining the rate of payment to skilled nursing facilities under Sections 5-5.3 through 5-5.5. Payment for exceptional medical care shall not exceed the rate that the Illinois Department would be required to pay under the Medical Assistance Program for the same care in a hospital.
20 ILCS 2405/3(f)
§§ 3. Powers and duties. The Department shall have the powers and duties enumerated herein:
(f) To establish a program of services to prevent unnecessary institutionalization of persons with Alzheimer's disease and related disorders or persons in need of long term care who are established as blind or disabled as defined by the Social Security Act, thereby enabling them to remain in their own homes or other living arrangements. Such preventive services may include, but are not limited to, any or all of the following: (1) home health services; (2) home nursing services; (3) homemaker services; (4) chore and housekeeping services; (5) day care services; (6) home-delivered meals;
Add. - 2

(7) education in self-care; (8) personal care services; (9) adult day health services; (10) habilitation services; (11) respite care; or (12) other nonmedical social services that may enable the person to become self-supporting. The Department shall establish eligibility standards for such services taking into consideration the unique economic and social needs of the population for whom they are to be provided. Such eligibility standards may be based on the recipient's ability to pay for services; provided, however, that any portion of a person's income that is equal to or less than the "protected income" level shall not be considered by the Department in determining eligibility. The "protected income" level shall be determined by the Department, shall never be less than the federal poverty standard, and shall be adjusted each year to reflect changes in the Consumer Price Index For All Urban Consumers as determined by the United States Department of Labor. Additionally, in determining the amount and nature of services for which a person may qualify, consideration shall not be given to the value of cash, property or other assets held in the name of the person's spouse pursuant to a written agreement dividing marital property into equal but separate shares or pursuant to a transfer of the person's interest in a home to his spouse, provided that the spouse's share of the marital property is not made available to the person seeking such services. The services shall be provided to eligible persons to prevent unnecessary or premature institutionalization, to the extent that the cost of the services, together with the other personal maintenance expenses of the persons, are reasonably related to the standards established for care in a group facility appropriate to their condition. These non-institutional services, pilot projects or experimental facilities may be provided as part of or in addition to those authorized by federal law or those funded and administered by the Illinois Department on Aging. Personal care attendants shall be paid: (i) A $5 per hour minimum rate beginning July 1, 1995. (ii) A $5.30 per hour minimum rate beginning July 1, 1997. (iii) A $5.40 per hour minimum rate beginning July 1, 1998. The Department shall execute, relative to the nursing home prescreening project, as authorized by Section 4.03 of the Illinois Act on the Aging, written inter-agency agreements with the Department on Aging and the Department of Public Aid, to effect the following: (i) intake procedures and common eligibility criteria for those persons who are receiving non- institutional services; and (ii) the establishment and development of non- institutional services in areas of the State where they are not currently available or are undeveloped. On and after July 1, 1996, all nursing home prescreenings for individuals 18 through 59 years of age shall be conducted by the Department. The Department is authorized to establish a system of recipient cost-sharing for services provided under this Section. The cost-sharing shall be based upon the recipient's ability to pay for services, but in no case shall the recipient's share exceed the actual cost of the services provided. Protected income shall not be considered by the Department in its determination of the recipient's ability to pay a share of the cost of services. The level of cost- sharing shall be adjusted each year to reflect changes in the "protected income" level. The Department shall deduct from the recipient's share of the cost of services any money expended by the recipient for disability-related expenses.
Add. - 3

The Department, or the Department's authorized representative, shall recover the amount of moneys expended for services provided to or in behalf of a person under this Section by a claim against the person's estate or against the estate of the person's surviving spouse, but no recovery may be had until after the death of the surviving spouse, if any, and then only at such time when there is no surviving child who is under age 21, blind, or permanently and totally disabled. This paragraph, however, shall not bar recovery, at the death of the person, of moneys for services provided to the person or in behalf of the person under this Section to which the person was not entitled; provided that such recovery shall not be enforced against any real estate while it is occupied as a homestead by the surviving spouse or other dependent, if no claims by other creditors have been filed against the estate, or, if such claims have been filed, they remain dormant for failure of prosecution or failure of the claimant to compel administration of the estate for the purpose of payment. This paragraph shall not bar recovery from the estate of a spouse, under Sections 1915 and 1924 of the Social Security Act and Section 5-4 of the Illinois Public Aid Code, who precedes a person receiving services under this Section in death. All moneys for services paid to or in behalf of the person under this Section shall be claimed for recovery from the deceased spouse's estate. " Homestead", as used in this paragraph, means the dwelling house and contiguous real estate occupied by a surviving spouse or relative, as defined by the rules and regulations of the Illinois Department of Public Aid, regardless of the value of the property. The Department and the Department on Aging shall cooperate in the development and submission of an annual report on programs and services provided under this Section. Such joint report shall be filed with the Governor and the General Assembly on or before March 30 each year. The requirement for reporting to the General Assembly shall be satisfied by filing copies of the report with the Speaker, the Minority Leader and the Clerk of the House of Representatives and the President, the Minority Leader and the Secretary of the Senate and the Legislative Research Unit, as required by Section 3.1 of the General Assembly Organization Act, and filing additional copies with the State Government Report Distribution Center for the General Assembly as required under paragraph (t) of Section 7 of the State Library Act.
89 Ill. Admin code 140.569(a)
a) Exceptional Care Program 1) Pursuant to Section 5-5.8a of the Illinois Public Aid Code [305 ILCS 5/5-5.8a], the Department may make payments for exceptional care services to nursing facilities ("providers") that meet licensure and certification requirements as may be prescribed by the Department of Public Health and are enrolled in and meet participation requirements of the Medical Assistance Program pursuant to Sections 140.11 and 140.12. 2) Exceptional medical care is defined as the level of care with extraordinary costs related to services which may include physician, nurse, ancillary specialist services, and medical equipment and/or supplies that have been determined to be a medical necessity. This shall apply to Medicaid patients who are being discharged from the hospital or other setting where Medicaid reimbursement is at a rate higher than the exceptional care rate for related services or to persons who are in need of exceptional care services who would otherwise be in an alternative setting at a higher cost to the Department and Medicaid eligible residents transitioning from Medicare to
Add. - 4

Medicaid while in the nursing facility. This includes but is not limited to head-injured persons, ventilator dependent persons or persons with HIV/AIDS. 3) The Department shall negotiate rates with facilities requesting payment for exceptional care services (see Section 5-5.8a of the Public Aid Code [305 ILCS 5/5-5.8a]). In determining the rates of payment, the Department shall consider data collected from exceptional care providers during fiscal year 1994, any intervening rate adjustments (including any updates for inflation) and the average cost of each service category for the geographic area in which the facility is located. After approval of negotiated rates, the Department shall annually update a facility's rates for inflation.
89 Ill. Admin. Code §676.10
a) The Department of Human Services (DHS) Home Services Program (HSP) is a Medicaid Waiver Program (42 CFR 440.180) designed to prevent the unnecessary institutionalization of individuals who may instead be satisfactorily maintained at home at a lesser cost to the State. b) The Medicaid Waiver for the State of Illinois is administered by the Illinois Department of Public Aid (DPA), as the State's approved Medicaid agency. The operational responsibility for HSP, with the exception of hearings on customer appeals (see 89 Ill. Adm. Code 510), rests with DHS. c) Although DHS shall be responsible for ensuring that the funds available under the HSP are administered in accordance with all applicable laws, DHS shall not have control or input in the employment relationship between the customer and the personal assistants.
89 Ill. Admin Code §676.30(j)
For the purposes of this Subchapter, unless otherwise stated, the following terms shall have the following meanings.
j) Home Services Program (HSP) - a State and federally funded program designed to allow Illinois residents, who are at risk of unnecessary or premature institutionalization, to receive necessary care and services in their homes, as opposed to being placed in an institution.
89 Ill. Admin Code §§682.100(g) & (h).
In order to receive services through HSP a customer must:
g) obtain certification from a physician or from a neuropsychologist for a person with a brain injury, with DHS assistance, that the individual is in need of long-term care and this care can safely and adequately be provided in the individual's home as provided in the HSP Service Plan developed for the individual; and h) not require in-home services that are expected to cost more than the cost the State would pay for institutional care for an individual with a similar DON score.
Add. - 5

89 Ill. Admin Code §679.20
The DON is comprised of three sections which are: a) the Mini-Mental Status Examination section, as developed by the University of Illinois Chicago, School of Public Health, which is used to determine the individual's cognitive functioning, and therefore the ability of the individual to adequately respond to the DON questions about his or her functioning capacity in the completion of the DON. Home Service Program staff may choose to not administer the MMSE if interaction with the customer, during the interview to gather demographic information, reveals no cognitive problems. The Mini-Mental Status Examination section shall not be administered to individuals who: 1) are 12 years of age or younger; 2) manifest, or have been diagnosed with, mental retardation or a related condition that results in impairment of a person's general intellectual functioning; or 3) manifest adaptive behavior and require services similar to an individual with mental retardation. b) Part A which measures the individual's need for care in the completion of ADLs; and c) Part B which measures the individual's unmet need for care in the completion of ADLs.
89 Ill. Admin. Code §679.30
a) An individual receiving a 14 or more on the Mini-Mental Status Examination shall receive "zero" points towards his/her column A score. An individual receiving less than 14 points shall receive an additional "10" points added to his/her column A score for the determination of eligibility and a SCM. b) The remaining two sections of the DON measure the individual's ability to complete the ADLs. The ADLs are specifically: eating, bathing, grooming, dressing, transferring, incontinence care, preparing meals, being alone, telephoning, managing money, routine health care tasks (or those health care tasks not requiring specialized training), specialized health care tasks (or those requiring assistance from trained medical practitioners), necessary travel outside the home, laundry, and housework. 1) Part A of the DON measures the individual's need for assistance in the completion of each of the ADLs on the following rating scale. A) "0" - the individual can perform all essential components of the ADL with or without an existing assistive device; B) "1" - the individual can perform most of the ADL, with or without an existing assistive device, but requires some supervision and/or assistance to ensure the task is fully completed; C) "2" - the individual requires a great deal of supervision and/or assistance, with or without existing assistive devices, in the completion of the essential components of the task; and D) "3" - the individual cannot perform any of the essential components of the task, with or without existing assistive devices and requires constant supervision and/or assistance. 2) Part B of the DON measures the individual's unmet need for care in the completion of the ADLs on the following scale.
Add. - 6

A) "0" - the individual has no unmet need for care in that the individual needs no assistance in completion of the essential components of the task, or family and/or other resources already provide for this task; B) "1" - the individual's need for assistance in the completion of the task is met at least 50% of the time, and, without periodic assistance, there is a risk to the individual's health and safety; C) "2" - the individual's need for assistance in the completion of the task is met less than 50% of the time and, without assistance, there is moderate risk to the individual's health and safety; and D) "3" - the individual's need for assistance in the completion of the task is seldom (less than 10% of the time) or never met and, without assistance, there is extreme risk to the individual's health and safety. c) In administering the DON for children, the assessor should ensure the ratings given reflect limitations due to the individual's disability and not the individual's age and/or the additional burden placed on the caregiver. 1) On Part A, determine if a child of the individual's age should be able to complete all or part of the task. If the inability to perform the task relates only to the individual's age, a score of "zero" should be given. Otherwise, score "1", "2", or "3" according to the individual's impairment level. 2) On Part A, determine the additional burden placed on a caregiver providing the service. If, because of the individual's age, there is no increased burden, a score of "0" should be given. If there is an increased burden on the the caregiver due to the individual's disability, score "1" "2", or "3" according to the increased level of burden in providing the task.
89 Ill. Admin Code 679.50(b)
a) For each individual meeting the minimum required DON scores for eligibility (see 89 Ill. Adm. Code 682), there is a corresponding Service Cost Maximum (SCM) for his/her DON score which is the maximum amount that may be expended for services through HSP for an individual who chooses HSP services over institutionalization. This amount directly corresponds to the amount the State would expect to pay for the nursing care component of institutionalization if the individual chose institutionalization. b) The SCMs for individuals served under the HSP Medicaid Waiver are:
Total DON Score SCM 29 through 32 $1114 33 through 40 $1280 41 through 49 $1424 50 through 59 $1705 60 through 69 $2004 70 through 79 $2167 80 through 100 $2329
89 Ill. Admin Code §682.50(c)
c) Cases involving ventilator dependent customers and other customers with exceptional care
Add. - 7

needs whose need for care cannot be met by the SCM may have a rate established by Department of Public Aid (DPA) per 89 Ill. Adm. Code 684.70(c). 89 Ill. Admin Code §684.70(c) c) The SCM may be exceeded for ventilator assisted individuals (VAIs) who are receiving HSP services but have had established, through DPA, a higher rate less the cost of supplies and equipment established by DPA for institutional placement. In such cases, the amount that may be expended for HSP services shall not exceed the special care rate established for that customer by DPA.
Add. - 8

 </s> In the
United States Court of Appeals
For the Seventh Circuit
____________

No. 02-3657 DONNA RADASZEWSKI, Guardian, on behalf of ERIC RADASZEWSKI,
v.

Plaintiff-Appellant,

BARRY S. MARAM,* Director, Illinois Department of Public Aid,
Defendant-Appellee. ____________
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.
No. 01 C 9551—John W. Darrah, Judge.
____________
ARGUED SEPTEMBER 8, 2003—DECIDED SEPTEMBER 8, 2004
____________

Before KANNE, ROVNER, and D IANE P. W OOD, Circuit Judges.
ROVNER, Circuit Judge. As a consequence of brain cancer and a stroke that he suffered at the age of 13, Eric

* Barry S. Maram, the current director of the Illinois Department of Public Aid, is substituted as th e defendant in li eu of the named defendant, Jackie Garner. Fed. R. App. P. 43(c)(2).

2

No. 02-3657

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 along-term care facility in order to receivethe intensive medical care that he needs. Eric’s mother, Donna Radaszewski, filed this suit against the Director of the ID PA (the “Director”) on Eric’s behalf, contending that the IDPA’s failure to fully fund athome, private-duty nursing fo r Eric amounts to disability discrimination in violation of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (th e “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 mostcommunity-integrated setting appropriate for his needs, whic h is his home. The district court entered judgment on the pleadings in favor of the Director, reasoning that the ADA claim aga inst the Director was barred by the Eleventh Amendment and that the Rehabilitation Act claim failed as a matter of law because in-h ome 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 ofthe pleadings, we accept the facts alleged in Radaszewski’s supplem ental

No. 02-3657

3

complaint as true. E.g., Midwest Gas Servs., Inc. v. Indiana Gas Co., 317 F.3d 703, 709 (7th Cir.), cert. denied, 124 S. Ct. 82 (2003). We also ta ke 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 care by a registerednurse 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 be nefits, 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 as sistance both to disabled individuals and to families with dependent children whose income and resources are otherwise insufficie nt 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

4

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nursing facility, 42 C.F.R. § 440.80, is one of the services that a State may elect to inclu de 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 th e care was provided by someone other than the recipien t’s relative; the plan imposed no limitation on the cost of such care, nor did it limit where private-duty nursing could be provi ded to the Medicaid recipient. See Radaszewski ex rel. Radaszewski v. Garner, 805 N.E.2d 620, 623-24 (Ill. App. Ct. 2003), supplemented on denial of reh’g (March 25, 2004). In the course o f this litigation, however, Illinois drafted an amendme nt to its Medicaid plan to delete all references to private-duty nursing and submitted th e amendment to HHS for clearance; the Secretary approved that amendment on February 2, 2001. Id. at 622-23; Radaszewski Reply Br. Addendum 12-13. The State then initiated rulemaking under the Illinois Administrative Pro cedure Act to implement the change; that process was completed as of September 1, 2001. See Radaszewski, 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 S ecretary may approve these services in the exercise of his “waiver” authority, so labeled because it empowers the Secre tary to waive certain Medicaid requirements that would otherwise constrain a State’s ability to offer these services—e.g., service limitations and financial eligibility c riteria. 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

No. 02-3657

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programs. As relevant he re, it facilitates state programs designed to provide home- and community-based services ot 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 servicesonly 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 waive r program offering home and community care, however, the State must certify that it is costneutral in the sense that the average per-person cost of the care offered through the waiv er program does not exce ed the average cost of providing that care in an i nstitutional setting. See § 1396n(c)(2)(D); 42 C.F.R. § 441.302(e).
Pursuant to this waiver authority, H HS 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 carein 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 ho spital. 89 Ill. Admin. Code § 140.645(c)(3).1

1 The Director points out that Congress has required each State to provide comprehensive medical scre ening, diagnostic, and treatment to persons under the age of 21, even if such care involves services not otherwise covered under the State’s basic Medicaid plan. See 42 U.S.C. §§ 1396d(a)(4)(B), 1396d(r); see also 305 Ill. Comp. Stat. Ann. 5/5-19(a) (ou tlining Illinois’s Healthy
(continued...)

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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 H ome Services Program (“H SP”)— 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 cost of institutional care. See 89 Ill. Admin. Code §§ 676.10(a), 676.30(j), 682.100. However, the service s provided pursuant to the H SP are limited by a Service Cost Maximum (“SCM”) established by the IDPA. 89 Ill. Adm in. Code § 679.50(a). The S CM is determined with reference to what it would cost to provide nursing care to the recipient in an institutional setting, e.g., a hospital or a nursing facility. See id.; see also 42 C.F.R. § 441.302(c). Based on his degree of impairmentand his need for medical care, an individual who seeks to participate in

1 (...continued) Kids Program). By virtue of thatmandate, States may in practice offer more Medicaid services to persons under the age of 21 than they do to adults.

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the HSP is assigned a Determination of Need (“DON”) score reflecting his risk of institutionalization. See 89 Ill. Admin. Code §§ 676.30(d), 679.10-679.50. Eric received a DON score of 70, and at that time, the standard SCM for an individual with that DON score was $1,857.00 per month. See 89 Ill. Admin. Code § 679.50 (b) (setting forth curre nt SCMs for participants in HSP). A higher “exceptional care rate” may be approved for an individual with a “com plex medical diagnosis.” See 305 Ill. Comp. Stat. Ann. 5/5-5.8a; 89 Ill. Admin. Code § 140.569(a); In re A ppeal of Eric Radaszewski, Appeal No. 00-019688-HSP, Findings of Fact of the Hearing Officer ¶ F (IDPA Aug. 18, 2000) (hereinafter, “IDPA Hearing Officer Findings”). 2 A counselor with the IDPA’s Office of Rehabilitat ion Service (“ORS”), after reviewing Eric’s situation, requestedand obtained approval of an exceptional care rate for Eric in the amount of $4,593 per month. However, in the assessment of Eric’s physician, that amount would only be sufficient to cover four to five hours per day of at-home nursing services for Eric. The estimated cost of maintaining Eric’s at-home care 24 hours per day3 is between $15,000 and $20,000 per m onth.

2 The exceptional care rate corresponds to what the IDPA would pay a skilled nursing facility to provide “exceptional medical care” to the individual. See 305 Ill. Comp. Stat. Ann. 5/5-5.8a; 89 Ill. Admin. Code § 140.569(a)(1). “Exceptional medical care” is de fined as “the level of medical care required by persons who are medically stablefor discharge from a hospital but who require acute intensity hospital level care for physician, nurse, and ancillary specialist services . . . .” 305 Ill. Comp. Stat. Ann. 5/5-1.1(i); see also 89 Ill. Admin. Code § 140.569(a)(2). Persons eligible for s uch care, and for reimbursement at the exceptional care rate, include (but are not limited to) individuals with head in juries, ventilator-dependent persons, and persons with HIV/AIDS. Id.
3 Although Eric’s parents historically have provided eight hours of care to Eric eac h day, the record indicates that they are now seeking to have the State fund 24-hour-per-day care to Erica, s the
(continued...)

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However, the ORS contended that it was not authorized to pay for at-home medical care inexcess of what it would cost to provide exceptional care for Eric at a skilled nursing facility. The IDPA took the position that if funding at the exceptional care rate was insufficient to provide for Eric’s care at home, then he would to have to move to an institutional setting in order to rec eive care. It determined that Eric could be a dequately cared for in a nursing home facility.
Eric filed an administrative grievance with the IDPA, contending that the Department should be required to pay more than the exceptional care rate so that he could continue receiving the care he requires at home rather than in a nursing home. At the conclusion of an evidentiary hearing conducted in July 2000, a hearing officer made a number of factual determinations, including the following findings as to the level of care that Eric requires:
H. The uncontradicted evidence submitted by Grievant [Eric] is that the Grievant would be at risk of danger if he should be placed in a nursing home. Grievant’s doctor testified that Grievant needs substantial one on one nursing care to survive. He is medically fragile, prone to infections, immobilized, catheterized and relies on oxygen. A registered nurse is required to look for problems before they become “fu ll blown and he crashes,” according to Grievant’s do ctor. His immunological responses were severely compromised due to earlier radiation and che motherapy, so skilled nursing care is a

3 (...continued) state of their own health has diminished their ability to care for Eric themselves. Eric’s father has suffered a stroke and can no longer drive or help move Eric. Eric’s mother wasdiagnosed with a brain tumor, and as a result of the tumor and the treatment for it, she cannot tolerate heat and suffers from dizzy spells. IDPA Hearing Officer Findings ¶ G.

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“question of survival, not a question of doing well.” The physician strongly urged that Gri evant be given the funds to support 24 hours per day of skilled nursing care. Placing Grievant in a nursing home facility of the type suggested by the State, according to the physician, would result in Grievant being seriously medically compromised, which would lead to many hospitalizations.

I. Grievant’s physician’s opinion wassupported by the

registered nurse in charge of Grievant’s care.

He

described Grievant’s medical needs in detail. Grievant

has no sense of thirst, so his hydration must be care-

fully monitored in order to avoid s erious medical com-

plications. Although Grievanthas difficulty swallowing,

he can be given soft food, but only under careful condi-

tions. His nutrition must be carefully monito red.

Grievant cannot protect his airway by turning his head;

any aspiration of food, liquid or medicine can become a

medical emergency. Chronic sinus infections lead to

sepsis, which can be rapid and acute. Grievant also has

osteoporosis and is in danger of break ing bones. H is

risk of injury is high because he sometimes forgets he

cannot walk. His short-term memory is not good and he

is often confused. He also has difficulty with urination

and elimination, which if left untreated, can r esult in

medical emergencies. Grievant has to be under constant

surveillance.

J. According to the expert wi tness offered by Grievant,

Grievant could not get the level of required nursing care

in a nursing home facility, including the facility sug-

gested by the State (Alden Lincoln Park

Nursing

Facility). In her assessment for this hearing, the expert

contacted several nursing homes (including Alden) and

asked about the level of care provided. According to this

witness, none would provide the level of care need by

Grievant: 24 hour[s] per day by skilled clinical nurses.

She based her assessment on the Grievant’s medical

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file, her observation of Grievant, and her 20 years of experience as a skilled nursing professional.
IDPA Hearing Officer Findings ¶¶ H-J. Presented with the hearing officer’s factual findings and Eric’s grievance, IDPA Director Ann Patla concluded that the sole issue that she had the authority to resolve was whether the IDPA’s own rules permit the HSP to pay for an individual’s medical care at a l evel greater than the exceptional care rate. She concluded that they do not. In a decision issu ed in August 18, 2000, she stated: “I find that the Rules set forth do not allow the HSP program to pay greater than the SCM at the exceptional care rate in any case.” In re Appeal of Eric Radaszewski, Appeal No. 00-019688-HSP, Final Administrative Decision (IDPA Aug. 18, 2000).
On September 1, 2000, Radaszewski filed a complaint for declaratory and injunctive relief against the IDPA director in federal court, asserting that a reduction in the level of private-duty nursing provided to her son at home would constitute a violation of the federalMedicaid statute as well as a deprivatio n of due process in violation of the Fourteenth Amendment. She sought and obtained a temporary restraining order obligating the IDPA to continue funding Eric’s at-home care. However, the district court s ubsequently denied Radaszewski’s request for a preliminary injunction, concluding that Ra daszewski’s complaint alleged no viable federal claim and tha t the court consequently lacked authority to award herpreliminary injunctive relief. Radaszewski v. Patla, No. 00 C 5931, Order (N.D. Ill. Nov. 7, 2000). Radaszewski appealed the preliminary injunction ruling to this court. While that appeal was pending, HHS on February 2, 2001, approved the amendment to Illinois’ basic Medicaid plan eliminating private-duty nursing asa service provided under that plan. Both parties a greed that the amendment rendered Radaszewski’s lawsuit m oot. On that basis, we dismissed her appeal i n an unpublished order.

No. 02-3657

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Radaszewski v. Patla, No. 00-3929, 2 Fed. Appx. 565, 2001 WL 242169 (7th Cir. March 8, 2001) (unpublish ed) (text available in Westlaw).
Meanwhile, in December 2000, after the dis trict court had denied her motion for a preliminary injunction, Radaszewski filed suit against the IDPA Director in Illinois court— seeking injunctive relief compelling the IDPA to fully fund the cost of the private-duty nursing care that Eric required in order to remain at home. Each of the theories that Radaszewski asserted in support of this reliefwas premised on state law. The state court entered a temporary injunction requiring the IDPA to r estore funding to the Radaszewski family sufficient to payfor 16 hours of privateduty nursing per day. That injunction, we are told, remains in effect today. Nearly one year later, the state court granted Radaszewski leave to file a supplemental complaint which added, inter alia, claims under Title IIof the ADA, 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. Radaszewski contended that the IDPA’s refusal to pay for full-time private-duty nursing for Eric at his home was inconsistent with the State’s duty, pursuant to regulations promulgated under both the ADA andRehabilitation Act, to provide care for a disabled person in the most community-integrated setting appropriate for that person. Based on the newly alleged violations of federal law, the Director removed the action to federal court. Radaszewski asked the district court to re mand the case to state court. The district court remanded the state-law claims alone, reasoning that it lack ed supplemental jurisdiction over those claims unde r Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 104 S . Ct. 900 (1984). Radaszewski v. Garner, No. 01 C 9551, 2002 WL 31430325, at *6 (N.D. Ill. Oct. 21, 2002). The sta te circuit court subsequently granted judgment on the pleadings in favor of the Director. However, the Illinois Appellate Court reversed that judgment and remanded for further proceedings,

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No. 02-3657

concluding there were questions concerning thepropriety of the rulemaking vis-à-vis the elimination of private-duty nursing services from the State’s Medicaid plan that could not be resolved on the pleadings. Radaszewski ex rel. Radaszewski v. Garner, supra, 805 N.E.2d at 627.
The district court dismissed Radaszewski’s ADA claim and entered judgment on th e pleadings in favor of the Director on the Rehabilitation Act claim. Radaszewski v. Garner, No. 01 C 9551, 2002 WL 31045384, 24 Nat’l Disability L. Rep. ¶ 187 (N.D. Ill. Sept. 11, 2002). Relying on this court’s opinion in Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000), the court determined that Radaszewski could not sue the Director in her official capacity in federal court for relief under Title II of the ADA. Walker held that the doctrine of Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441 (1908), which permits private suits against state officials in federal court for injunctive relief, is unavailable in Title II cases; in Walker’s view, the proper defendant in such a case was the state agency itself, wh ich, in light of the Eleventh Amendment, could only be sued in state court. 213 F.3d at 347. Although the district court agreed that c ase law postdating Walker (including the Su preme Court’s decision in Board of Trustees of Univ. of Alabama v. Garrett , 531 U.S. 356, 374 n.9, 121 S. Ct. 955, 968 n.9 (2001)) had called into question the validity of Walker’s holding, the court fe lt constrained to follow Walker until such time as either this court or the Supreme Court overruled it. The co urt therefore dismissed the ADA claim. 2002 WL 31045384, at *2.
As for the Rehabilitation Act claim, the court reasoned that neither the Rehabilitation Act northe ADA “require[s] that the State create and fund a program that does not a lready exist” in order to enable a disabled person to be cared for in the most integrated community setting possible; rather, what the statutes require is even-handed treatment as between able and disabled individuals. Id., at *3. In the court’s view, it was clear that the IDPA had not discrim-

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inated against disabled individuals: although the State makes at-home, private-duty nursing services available to disabled individuals under the age of 21, no one over the age of 21—disabled or not—receives such services through the Illinois Medicaid program. Id.4 In essence, Radaszewski was seeking to compel the State to provide services to her son at home that it did not otherwise provide, and this exceeded the scope of the State’s duty under the Rehabilitation Act and the ADA. “[T]he IDPA is not required to provide the handicapped more coverage than the non-handicapped individual to assure ‘adeq uate health care.’ ” Id. For that reason the court concluded thatthe Director was entitled to judgment on the pleadings on the Rehabilitation Act claim. Id.

II.
We review de novo th e district court’s decision to enter judgment on the pleadings pursuantto Federal Rule of Civil Procedure 12(c). R.J. Corman Derailme nt Servs., LLC v. Int’l Union of Operating Engineers, Local 150, AFL-CIO , 335 F.3d 643, 647 (7th Cir. 2003). In the course of that review, we accept the truth of the allegations in Radaszewski’s

4 In fact, as the IDPA concedes, the HSP makes it possible for a disabled person over the age of 21 to receive at least some privateduty nursing services at home . Although private-duty nursing services have been removed from Illinois’s basic Medicaid plan, a disabled individual can still access such services through theHSP waiver program. However, the SCM or exceptional care rate approved for the individual HSP participant operates to limit the amount of nursing care that he or she may rec eive. As we have noted, the exceptional car e rate approved for Eric would enable him to receive only four or five hours of nursing per day, far less than the 16 hours of daily care he received under the MFTDC program and the 24 hours per day that he and his par ents currently seek.

14

No. 02-3657

complaint. Id. Only if Radaszewsk i could prove no set of facts consistent with those all egations that might support her claim for relief may we sustain the judgment entered in the Director’s favor. Id.

A.
The district court concluded on thestrength of this court’s holding in Walker, 213 F.3d 344, that Radaszewski could not sue the Director for injunctive relief under the A DA. However, Bruggeman ex rel. Bruggeman v. Blagojevic h, 324 F.3d 906, 912-13 (7th Cir. 2003), issued after the d istrict court’s decision, recognized that Walker did not survive t he Supreme Court’s decision in Garrett. Garrett explicitly recognized the right of a private plaintiff to assert an ADA claim for injunctive relief against a state official in federal court. 531 U.S. at 374 n.9, 121 S. Ct. a t 968 n.9. The State concedes, in view of Bruggeman, that Radaszewski may seek injunctive relief from the Director consistent with the doctrine of Ex Parte Young. Bruggeman, 324 F.3d at 912-13. We therefore proceed to the merits of Radaszewski’s ADA claim as well as her Rehabilitation Act claim.

B.
Title II of the ADA prohibits discrimination against disabled persons by any public entity:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132. The statute defines a “qualified individual with a disability” as one who, “with or without reasonable modifications to rules, policies, or practices . . . meets the essential eligibility requirements for the receipt of ser-

No. 02-3657

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vices or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2). The term “public entity” is defined to include “any State or local government,” as well as “any department, agency, special purpose district or other instrumentality of a State . . . or local government.” § 12131(1)(a)(A), (B).

Pursuant to Title II, the Attorney General has promulgated a regulation providing that “[a] public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The “most integrated setting appropriate” is in turn defined as “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. pt. 35, App. A, p. 450. This integration mandate does not impose an unqualified obligation on a public agency, however. Although an agency must make such modifications as are “reasonable” in order to avoid unduly segregating the disabled, it is relieved of that o bligation if it can show “that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7).

The Rehabilitation Act, which applies toprograms receiv-

ing federal financial assistance, contains

a similar

antidiscrimination provision, 29 U.S.C. § 794(a), and a

corresponding regulation requiring that an agency adminis-

ter its programs and activiti es “in the most integrated

setting appropriate to the needs of qualified handicapped

persons,” 28 C.F.R. § 41.51(d). The ADA’s integration

regulation is modeled after that regulation.See Olmstead v.

L.C. ex rel. Zimring , 527 U.S . 581, 592, 119 S. Ct. 2176,

2183 (1999). And consistent with the ADA’s regulatory

scheme, that integration mandate is limited by regulatory

provisions indicating that a recipient of federal funding

need not accommodate a disabled personwhen the proposed

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No. 02-3657

accommodation would impose an “undu e hardship” on the recipient. 28 C.F.R. §§ 41.53, 42.511(c); 45 C.F.R.§ 84.12(c).
In view of the similarities between the relevant provisions of the ADA and the Rehabilitation Act andtheir implementing regulations, courts co nstrue and apply them in a consistent manner. Frederick L. v. Dep’t ofPublic Welfare of Pennsylvania, 364 F. 3d 487, 491 (3d Cir. 2004); Fisher v. Oklahoma Health Care Auth., 335 F.3d 1175, 1179 n .3 (10th Cir. 2003); see also Bruggeman, supra, 324 F.3d at 912 (noting that the statutory and regulatory provisions concerning integrated care are “materially identical”). Although our analysis shall focus on the ADA, that analysis applies with equal force to Radaszewski’s Rehabilitation Act claim.
In Olmstead, the Supreme Court, look ing to the terms and legislative history of the ADA’s Title II, along with the integration mandate reflected in its imple menting regulations, held that the “unjustified institutional isolation” of a disabled individual receiving medi cal care from a State amounts to an actionable form of discriminationunder Title II. 527 U.S. at 597-603, 119 S. Ct. at 2185-88. That is so, the Court concluded, even in the abse nce of traditional proof that the disabled person is being treated differently from a nondisabled person who is otherwise similarly situated. Id. at 598, 119 S. Ct. at 2186.
Recognition that unjustified institutional isolation of persons with disabilities is a form o f discrimination reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. Second,confinement in an institution severe ly diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independe nce,

No. 02-3657

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educational advancement, and cultural enrichment. Dissimilar treatment correspondingly exists in this key respect: In order to received needed medical services, persons with . . . disabilities must, because of those disabilities, relinquish participation in community life they could enjoy give n reasonable accommodations, while persons without [such] disabilities can receive the medical services they need without similar sacrifice.
Id. at 600-01, 119 S. Ct. at 2187 (citations om itted). The plaintiffs in Olmstead were individuals with mental disabilities who had been institut ionalized in state facilities. Although their treatment providers had concluded that their needs could be met in community-based programs, their placement into such programs had been delayed, and the plaintiffs filed suit under Title II, seeking to compel the State to transfer them into a community setting. In view of the integration mandate, the Court agreed with the pl aintiffs that a State is obliged to provide c ommunity-based treatment for individuals with disabilities, so long as t he State’s treatment professionals find that such treatment is appropriate, the affected individuals do not oppose community-based treatment, and placement in the community can be reasonably accommodated, taking into account the State’s resources and the needs of others with similar disabilities. Id. at 607, 119 S. Ct. at 2190. In a footnote, the Court disavowed any intent to hold that the ADA imposes on the States either a particular standard of care or a requirement that they provide a part icular level of benefits to disabled persons. Id. at 603 n.14, 119 S. Ct. at 2188 n.14. “We do hold, however, thatStates must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” Ibid.
Radaszewski contends that Illinois’s unwillingness to continue funding private-duty nursingcare for Eric at home portends precisely the type of “unjustified institutional isolation” for him that Olmstead described a s form of

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No. 02-3657

discrimination prohibited by the ADA. Sheasserts that Eric satisfies each of the three conditions that the Court in Olmstead cited as prerequisites to the State’s obligation to provide community-based treatment. Indeed, it appears that two of these conditions—the propriety of c ommunitybased care for Eric, and the consent of Eric and his affected family members—are undisputed. There is little doubt that Eric can be cared for appropriately at home; he has been receiving care at home since 1994, and according to the complaint, he benefits from the support of and inter action with his parents in that environment. And obviously, neither he nor his family oppose the prospect of him remai ning at home; that is the point of Radaszewski’s complaint. As for the third condition—the State’s ability to reasonably accommodate community-based care for the disabled individual— Radaszewski asserts that the cost of at-home, private-duty nursing for Eric is actually less than what the State would spend if Eric were transferred to an institution. Thus, Radaszewski believes that the State reasonablycan accommodate continued at-home care for Eric without jeopardizing its resources or interferingwith the State’s obligation to care for other disabled individuals. One of the ways that it might do this, Radasze wski suggests, is by increasing the cap on the amount that the HSP will pay for the services that disabled individuals need in order to remain at home.
The Director, on the other hand, construes Radaszewski’s complaint to require a substanti ve change in the services IDPA currently provides. Picking up on footnote 14 of the Olmstead opinion, the State emphasizes that the ADA does not guarantee that each recipient of state medical benefits will get care precisely tailored to his nee ds; instead, the statute requires the State not to discriminate vis-à-vis services that it has chosen to provide. 527 U.S. at 603 n.14, 119 S. Ct. at 2188 n.14. Thus, po st-Olmstead, courts have recognized that a State may violate Title II when it refuses to provide an existing ben efit to a disabled person that

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would enable that individual to live in a more communityintegrated setting. E.g., Fisher v. Oklahoma Health Care Auth., supra, 335 F.3d at 1182-84 (State may violate Title II when it caps the number ofdrug prescriptions it will fund through Medicaid for participantsin community-based care programs, but not for persons who live in nursing homes); Townsend v. Quasim, 328 F.3d 511, 516-20 (9th Cir. 2003) (community-based long-term ca re offered to categorically needy must be offered to me dically needy as well, unless doing so would fundamentally alter the State’s Medic aid programs). On the other hand, courts have also held that a State is not obligated to create new services in orde r to enable an instituti onalized individual to live in a more integrated setting. E.g., Rodriguez v. City of New York, 197 F.3d 611, 615-16 (2d Cir. 1999) (neither ADA nor Rehabilitation Act compelled State to offer safety monitoring to persons with mental disabilities so that such individuals could remain at home, where safety monitoring was not an existing personal care service that city offered through its Medicaid program).
Here, IDPA argues, the State’s basic Medicaid plan (by virtue of the amendment approved in 2001) does not include private-duty nursing services. Of course, nursing generally is a service provided, but the particular service that Eric requires is one-on-one, private-duty nursing. The only individuals to whom that type of nursing is offered at the level that Eric requires are persons under the age of 12, who may receive such services under the MFTDC waiver program. See n.1, supra. Funding for private-duty nursing is available through the HSP program, but at a level no higher than the exceptional care rate—which in this case would permit no more than five hours of nursing per day.Thus, in order for Radaszewski to obtain the relief she seek s for Eric, the IDPA either would have to raise the age limit for participation in the MFTDC program or raise the level of care covered by the HSP by substantially increasing the

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No. 02-3657

exceptional care rate for individual s with disabilities akin to Eric’s. In the State’s view, neither modification is a reasonable one, and either one would compel the I DPA to alter the substance of the services it provides to Medicaid recipients and thus to offer a new service tha t does not currently exist.
A key premise of the State’s argument is that privateduty nursing would not be prov ided to Eric in the institutional setting that the IDPA believes is appropriate to his level of need—i .e., in a nursing home facility. However, from the face of the complaint, the documents in the public record relating to Eric’sIDPA grievance, and the briefingin this appeal, there appear to be at least two important factual questions relating to this premise that cannot be resolved on the pleadings.
The first of these questions is whether a nursing home facility actually could meet Eric’s me dical needs, as the Director supposes. As we noted earlier, the IDPA calculated the level of benefits for which Eric was eligible under the HSP with reference to the cost of care at a nursing home facility; and the IDPA took th e position that Eric would have to seek care in that type of facility if HSP funding at the exceptional care rate was insufficient to pay for his care at home. However, the Radaszewskis have co nsistently challenged the notion that Eric could receive adequate care at a nursing home facility. When Eric filed a grievance with the IDPA challenging the exce ptional care rate that the Department had established fo r Eric, his parents put on evidence that Eric could not properly be cared for in a nursing home facility as the State contended, because such a facility could not provide the constant, one-on-one care that he needs in order to survive. Based on that evidence, which apparently was unco ntradicted, the hearing officer whose findings we quoted above specificallyfound that Eric “would be at risk of danger if he should be placed in a nursing home.” IDPA Hearing Officer findings ¶ H. In view

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of that finding, we must assume that Radaszewski will be able to prove in this litigation that Eric, if institutionalized, would require a mo re care-intensive setting than a nursing home—a hospital, for example—in order to survive. That possibility in turn suggests that the type and cost of medical care that Eric would receive at a nursing home facility are not the appropriate reference points for assessing whether the private-duty nursing that Eric se eks to receive at home is a service that would be provided to Eric in an institutional setting.
The second question concerns the level of care that Eric would require in an institutional setting—whether it be a nursing home facility, a hospital, or another type of care facility. The State posits that Eric would not receiveprivate nursing care in any institutional setting, even a hospita l, so that there is no institutional precedent that would support his demand under Title IIfor private-duty nursing at home. Cf. Fisher, 335 F.3d at 1183 (“Plaintiffs are simply requesting that a service for which they would be eligible under an existing state program, unlimited medically necessary prescriptions, be provided in a community-based setting rather than a nursing home. They are not demanding a separate service or one not already offered by the state .”); Townsend, 328 F.3d at 517 (“Mr. Townsend simply requests that the services he is already eligible to receive under an existing state program . . . be provided in the communitybased adult home where he lives, rather than the nursing home setting the state requires.”). Here again,however, the evidence presented to the IDPA hearing officer, and that officer’s findings, suggest that Eric might well require continuous one-on-one nursing care if he were cared for in an institutional setting. The hearing officer’s summary of the testimony provided by Eric’s caretakers, most if not all of which was undisputed, makes it plausible to suppose that Eric cannot be left unattended—or attended only by a person lacking significant medical skills— for any amount

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of time. It appears from that summary th at he requires skilled assistance in order to safely accomplish many of the bodily functions necessary to remain alive—drinking, eating, eliminating waste, moving about, even breathing. Radaszewski may thus be able to show that if institutionalized, Eric would require the equivalent of the private-duty nursing care that, until now, he has received at home.
The Director concedes that if Eric were placed in an institution, the IDPA would obliged toprovide him with the level of care that he needs in order to survive. So if, as t he evidence presented to the IDPA hearing officer strongly suggests, Eric requires constant monitoring and continuous skilled assistance in accomplishi ng basic bodily functions, then the State will have to provide those services to Eric in an institutional setting. It may well be, as the Director represents, that an institutional facility wo uld not assign private-duty nurses, as such, to provide the care that Eric requires. In lieu of one nurse assigned only to Eric, for example, a hospital might be able to rely on a variety o f monitors to keep Eric’s life signs under surveillance, while a pool of immediately available skilled professionals tending to multiple patients in a care-intensive unit might be able to provide the frequent, immediate assistance Eric requires in order to eat, drink , and so on and to head off any of the medical crises (e.g., choking or infections) to which he is vulnerable. But if what that level of care adds up to is the equivalent of around-the-clock, private-duty nursing care, then Radaszewski may yet have a viable claim that Eric is entitled to receive private-duty nursing care at home.
Nothing in the regulations promulgated under the ADA or the Rehabilitation Act or in the Court’s decision in Olmstead conditions the viability of a Title II or section 504 claim on proof that the services a plaintiff wishes to receive in a community-integrated setting already exist in e xactly the same form in the institutional setting. Although a State is not obliged to create entirely new services or to otherwise

No. 02-3657

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alter the substance of the care th at it provides to Medicaid recipients in order to accommodate an individual’s desire to be cared for at home, the integration mandate ma y well require the State t o make reasonable modifications to the form of existing services in order to adapt them to c ommunity-integrated settings. Some forms of medical treatment—for example, prescription medications—might be virtually the same whether provided to the recipient in an institution or at home. See Fisher, 335 F.3d at 1183. But particularly when the treatment involves services provided by medical professionals, the care might vary in f ormat depending on whether it is provided to the individual in an institution or a community-based setting. If variations in the way services are delivered in different settings were enough to defeat a demand for more community-integrated care, then the integration mandate of the ADA and the Rehabilitation Act would mean very little. Of course, the State always has the opportunity to show that adapting existing institution-based se rvices to a commun ity-based setting would impose unreasonable burdens or fundamentally alter the nature of its programs and services, an d for that reason it should not be required to accommodate the plaintiff. 28 C.F.R. § 35.130(b)(7); see Olmstead, 527 U.S. at 603-06, 119 S. Ct. at 2188-90. But so long as it is possible for the plaintiff to show that the services he seeks to receive at home are, in substance, already provided in the institutional setting, then the State is not entitled to judgment on the pleadings based on the argument that the services would take on a different form or method if provided in a community setting.
Also relevant to the question of whether continuous private-duty nursing is a service that Illinois does not presently offer in any setting is the fact that IDPA can and does make available a limited amo unt of funding for private-duty nursing to adults participating in the HSP. Recall that the purpose of a waiver program like HSP is to enable medically needy individuals toavoid institutionalization by

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making services available to them that are otherwise not part of the State’s basic Medicaid program. At-home nursing care, which has now been removed from Illinois’s Medicaid plan, would constitute such a service. The cap on the level of funding that HSP would provide to Eric and his family prevents him from receiving thelevel of private-duty nursing services that he needs—recall that the exceptional care rate approved for Eric wo uld pay for only four or five hours of private-duty nursing per day rather than the 24 hours per day that his family seeks. But the fact that the State already provides for some private-duty nursing tends to belie the notion that providing such care to Eric s o that he may remain at home would require the State to alter the substance of its Medicaid programs by creating an entirely “new”service.

Insofar as the HSP is concerned, the State contends that

Eric is ineligible for that program (and that Radasze wski

cannot plead or prove otherwise) because the cost of the

continuous care that he needs admittedly exceeds the cost

of exceptional care in a nursing facility, the latter figure

being the most that IDPA, under its current rules, will pay

for Eric’s at-home care. That point is not dispositive of the

federal claims that Radaszewski has made here. It is true,

as the Director points out, that the ADA only prohibits

discrimination against “qualified individuals with disabili-

ties,” whom (as we noted earlier) the statute describes as

disabled individuals who “with or without reasonable modi-

fications to rules, policies, or practices . . . mee[t] the essential

eligibility requirements for the receipt of services or the

participation in programs or activities provided by a public

entity.” 42 U.S.C. § 12131(2); see Olmstead, 527 U.S. at 601-

02, 119 S. Ct. at 2187-88. For present purposes, it appears

undisputed that Eric is qua lified for the receipt of home

services through the HSP in the sense that he has severe,

long-term disabilities, he is eligible for Medicaid, and he is

at risk of placement in an institutional health care facility.

See 89 Ill. Admin. Code § 682.100 (setting forth

HSP

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eligibility requirements). It is also undisputed that his home is an appropriate care setting for Eric—he has lived there since the onset of his disabilities with the support of the at-home services that he received through the MFTDC waiver program until he reached the age of 21—the very same services that he seeks to continue receiving as an adult.
By no means is Eric an “unqualified” di sabled person in the sense that Olmstead emphasized—he is not someone who is “unable to handle or benefit from community settings,” 527 U.S. at 601-02; 119 S. Ct. at 2187, whom the State’s medical professionals believe is not able to live in a community-integrated setting, id. at 602, 119 S. Ct. at 2188, or who does not want to live in a such a setting,ibid. On the contrary, Radaszewski’s complaint, together with the IDPA grievance records, suggest that with appropriate care Eric can live at home (he has in fact done so for a number of years), that he wishes to continue doing so, and that he profits in that environment from the daily interaction with and nurturing by his parents and the access to o n-line learning that he has at home. Supplemental Complaint Count I ¶ 11, Count VI ¶¶ 40-46, Count VII ¶¶ 4 2-45; IDPA Hearing Officer Findings ¶ A (“[Eric] has been cared [for] at home for the past 5 years through funding from the Illinois Division of Specialized Care forChildren (DSCC). This care, plus the admirable efforts of his parents, has allowed Grievant to be cared for in his home. Grievant wishes to be maintained in his home with his family; this i s also his parents’ wish[ ].”). Eric thus appears to meet these “essential” requirements for at-home care. See Townsend, 328 F.3d at 516 (plaintiff was a “qualified individual with a disability” for purposes of Title II becaus e he was eligible to receive services through State’s Medicaid program, he preferred to receive such services in a community-based setting, and community-based services were appropriate for his needs).
Accepting the allegations of the complaint as true, Eric is also qualified for the H SP program in the sense that the

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cost of his continued care at home would not exce ed the anticipated cost of caring for him in an ins titutional setting. As we have noted, approval for Medicaid waiver programs offering community-based care is conditioned on certification that the average per-capita cost of at-home or other community-based care do es not exceed the average p ercapita cost of institutional care. See 42 U.S.C. § 1396n(c)(2)(D); 42 C.F.R. § 441.302(e). In view of that federal requirement, one of the eligibilityrequirements that Illinois has specified for participation in the HSP program is that an individual does not require in-home services that are expected to cost more than what theState would pay to provide institutional care to an individual with a similar DON score. 89 Ill. Admin. Code § 682.100(h). As we have noted, Radaszewski asserts that the cost of providing private-duty nursing care to Eric at home, although it exceeds the exceptional care rate approved for Eric by several multiples, is nonetheless no greater and perhaps less than what it would cos t the State to care for Eric in an appropriate instit ution. We assume, as we must, that Radaszewski will be able to prove the truth of that assertion. Her asserti on is plausible, particularly in view of the fact that the MFTDC program, through which Eric received funding for private-duty nursing until he turned 21, has a similar requirement of cost-neutrality. See 89 Ill. Admin. Code § 140.645(c)(3). Consequently, we discern no impediment concerning Eric’s status as a “qualified individual with a disability” that would preclude the relief his mother seeks under Title II.
The cost of around-the-clock private-duty nursing care no doubt is relevant to the separate question of whether requiring the State to continue providing that care for Eric at home would entail reasonable modifications to IDPA’s rules and practices or would result in a fundamental alterationof the services and programs that Illinoisprovides to similarly

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situated individuals.5 As we have noted, the cost of providing 24-hour private-duty nursing care to Eric at home is estimated at between $15,000 and $20,000 per mon th, an amount three to four times greater than the excep tional care rate approved for Eric. So in that respect, the State would have to substantially increase the level of expenditures it would otherwise make on Eric’s behalf under the HSP in order to continue Eric’s at -home care. That alone does not defeat his Title II claim. See Fisher, 335 F.3d at 1183 (“If every alteration in a program or service that required the outlay of funds were tantamount to a funda-

5 The plaintiffs in Olmstead were, as we have indicated, persons with mental disabilities. When it addressed the fundamentalalteration defense in that case , the Supreme Court spoke of the need to consider the State’s obligations to other persons with the same broad type of disabilities, i.e ., other persons with mental disabilities. See 527 U.S. at 604, 119 S. Ct. at 2189 (“Sensibly construed, the fundamental-alteration component of the reasonablemodifications regulation would allow the State to show that, in the allocation of available reso urces, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities.”) (emphasis ours); id. at 607, 119 S. Ct. at 2190 (“[W]e conclude that, under Title II of the ADA, States are required to provide community-based treatment for persons with mental disabilities when the State’s treatment professionals determine that such placement is appropriate, the affected persons do not oppose such treatment, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities.”) (emphasis ours). It is not immediately apparent here what the relevant group of disabled persons sho uld be for purposes of the fundamental-alteration defense, and this is not a matter that the parties themselves have addressed in the briefing. For present purposes, we will refer simply to other persons with disabilit ies similar to Eric’s. If and when the fundamental-alteration defense is reached in further proceedings, the parties and the district court will want to consider how to more precisely def ine and describe that group.

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mental alteration, the ADA’s integration mandate would be hollow indeed.”). Once again, however, if, as Radaszewski represents, it would costthe State no more and possibly less to care for Eric at home than it would to care for him in an institution, this would be hi ghly relevant to whe ther the State is obliged under Title II to provide him with full-time, at-home care.
Olmstead did note that because a State is obliged to maintain a full range of facilities inorder to provide care for its disabled citizens, it may not always be able to fully realize the cost savings of placing an individual person in a community setting rather than an in stitution. 527 U.S. at 604, 119 S. Ct. at 2189. Moving one resident of a statefunded institution into the community does not necessarily mean that the State immediately could close or reduce the size of that institution; in the short run, the State might incur greater costs by funding a community placement for the individual who can be cared for there while continuing to provide institutional services fo r those who cannot be cared for in a community setting. Ibid. A court must therefore take care to consider the cost of a plaintiff’s care not in isolation, but in the context of the care it must provide to all individuals with disabilities comparabl e to those of the plaintiff.
This is not an assessment that can be made on the pleadings in this case. The State may be able to show that in view of the obligations it has not just to Eric but to all individuals with similar disabilities, it cannot fund a home placement for Eric without fundamentallyaltering the care it provides to others with similar needs. But the evidence might also show something different to be true. If the State would have to pay a private facility to care fo r Eric, for example, and the cost of that placement equale d or exceeded the cost of caring for him at home, then it would be difficult to see ho w requiring the State to pay for at-home care would amount to an unreasonable, fundamental

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alteration of its programs and services. Indeed, Radaszewski represents that this is precisely the case in Illi nois, and that, as a result, if Eric were to be cared for in an institution, the State would be paying a private contractor to provide that care. In any event, what matters at present is that a much more developed record will be re quired in order to assess whether the injunctive relief that Radaszewski seeks would require a fundamental alteration of the State’s p rograms and services.
The district court therefore erred inentering judgment on the pleadings in the Director’s favor. The allegations of Radaszewski’s complaint permit the inference that a home placement remains appropriate for Eric, that he and his family do not oppose such a pl acement, and that such a placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with comparable disabilities. See Olmstead, 527 U.S. at 607, 119 S. Ct. at 2190. At the same time, the p leadings do not permit a finding that the injunctive relief that Radaszewski seeks either is unreasonable or would require a fundamental alteration of the State’s programs and services for similarly-situated disabled persons. Radaszewski is entitled to proceed on her complaint.

III.
For the reasons discussed, we R EVERSE the judgment on the pleadings entered in favor of the IDPA Director and REMAND for further proceedings consistent with this opinion.

30 A true Copy:
Teste:

No. 02-3657
________________________________ Clerk of the United States Court of
Appeals for the Seventh Circuit

USCA-02-C-0072—9-8-04


[CONTENT] September 1, 2000 | § | 1983 | Illinois Department of Public Aid | the U.S. District Court | the Northern District | Illinois ||| Plaintiff | Prairie State Legal Services | Medicaid | the Fourteenth Amendment | the U.S. Constitution ||| Plaintiff ||| Plaintiff | about 25 ||| Plaintiff | twenty-one | Plaintiff | sixteen hours | the Medicaid Program for Medically Fragile, Technology Dependent Children | MFTDC ||| twenty-one | the Department of Healthcare | Family Services | HFS | this to five hours ||| Plaintiff ||| Plaintiff | 29,000 | 20,000 ||| September 1, 2000 | James B. Zagel | Plaintiff | IDPA ||| November 6, 2000 | Plaintiff ||| Plaintiff | the U.S. Court of Appeals | the Seventh Circuit ||| February 2001 | Illinois State Medicaid Plan ||| the Seventh Circuit | the District Court ||| December 1, 2001 | Plaintiff | IDPA | the Circuit Court | the Eighteenth Judicial Circuit | DuPage County | Illinois ||| Illinois ||| Americans | ADA | Section 504 | the Rehabilitation Act | RA | Plaintiff | the U.S. District Court | the Northern District | Illinois | December 14, 2001 ||| April 30, 2002 | Court | John W. Darrah | Plaintiffs ||| Court | Plaintiffs' ||| The Federal Court | Defendants | September 10, 2002 ||| Court | the Seventh Circuit Court of Appeals' | Walker | 213 | 344 | 7th Cir. 2000 | Plaintiffs' | ADA | Title II ||| Court | Plaintiffs' | RA | RA | State | RA ||| September 8, 2004 | the Seventh Circuit Court of Appeals | Ilana Rovner | the District Court ||| Radaszewski v. Garner | 383 | 599 | 7th Cir. 2004 ||| First | Court | the Supreme Court's | Board of Trustees | Alabama | 531 | U.S. | 356 | 2001 | ADA ||| Court | Plaintiff | Court | the District Court | Defendants ||| March 29, 2006 | the District Court ||| Radaszewski | N.D. | Ill. Mar. 29, 2006 |||  |||  ||| September 10, 2007 ||| Plaintiff | 16 hours ||| Court | March 26, 2008 ||| Radaszewski | Maram | 2008 | 2097382 | N.D. | Ill. ||| Mar. 26, 2008 ||| Court | Plaintiff | ADA | RA ||| Court | Plaintiff | Court ||| May 9, 2008 | Court ||| Plaintiff | fewer than sixteen hours ||| Court |||  [SUMMARY] On September 1, 2000, the mother of a physically and developmentally disabled individual filed a lawsuit under § 1983 against the Director of Illinois Department of Public Aid (IDPA) in the U.S. District Court for the Northern District of Illinois. The Plaintiff, represented by Prairie State Legal Services, alleged that a reduction in the level of private-duty nursing provided to her son at home would violate the federal Medicaid statute and deprive her son of due process of the law in violation of the Fourteenth Amendment to the U.S. Constitution. The Plaintiff sought declaratory and injunctive relief. 

The Plaintiff's son was diagnosed with brain cancer as a child; as a result of the cancer, a stroke, and subsequent treatment, he presented a very complex medical case requiring round-the-clock care and about 25 medications per day.  From the time between when the Plaintiff's private medical insurance terminated and the time her son turned twenty-one, the Plaintiff's son received sixteen hours of in-home nursing per day under the Medicaid Program for Medically Fragile, Technology Dependent Children (MFTDC program).  After he turned twenty-one, the Department of Healthcare and Family Services (HFS) reduced this to five hours of in-home nursing per day.  The Plaintiff desired community-based treatment, and state treatment professionals found that it was appropriate. The cost of care for the Plaintiff's son in a hospital ($29,000 per month) would exceed the cost of care in his home ($20,000 per month).

On September 1, 2000, the district court (Judge James B. Zagel) granted the Plaintiff's motion for a temporary restraining order, requiring IDPA to continue funding at-home care. However, on November 6, 2000 the court denied the Plaintiff’s request for a preliminary injunction, holding that her complaint did not state a viable federal claim. The Plaintiff appealed to the U.S. Court of Appeals for the Seventh Circuit, also requesting an injunction pending appeal. However, in February 2001, amendments to the Illinois State Medicaid Plan eliminated private duty nursing care as a service provided under the state plan. Consequently, the Seventh Circuit ordered the District Court to vacate its judgment on the merits and dismiss all previous orders as moot. 

On December 1, 2001, the Plaintiff again filed suit against IDPA, this time in the Circuit Court of the Eighteenth Judicial Circuit, DuPage County, Illinois. The original claim alleged violations of various Illinois state laws. After adding claims under the Americans with Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act ("RA"), the Plaintiff moved the case to the U.S. District Court for the Northern District of Illinois on December 14, 2001. 

On April 30, 2002, the Court (Judge John W. Darrah) granted in part and denied in part the Plaintiffs' motion to remand to state court.  The Court remanded Plaintiffs' state law claims and retained jurisdiction of Plaintiffs' federal law claims.

The Federal Court granted Defendants' motion for judging on the pleadings on September 10, 2002.  The Court held that the Seventh Circuit Court of Appeals' holding in Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000), required that Plaintiffs' ADA claim under Title II fail.  The Court also dismissed Plaintiffs' RA claims, holding that the RA does not require the State to create and fund a program that does not already exist; instead, the RA requires even-handed treatment of developmentally and physically disabled persons relative to persons who do not have disabilities.

On September 8, 2004, the Seventh Circuit Court of Appeals (Judge Ilana Rovner) reversed the District Court and remanded the case for further proceedings.  Radaszewski v. Garner, 383 F.3d 599 (7th Cir. 2004).  First, the Court recognized that the Supreme Court's holding in Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356 (2001) recognized the right of a private plaintiff to assert an ADA claim for injunctive relief against a state official in federal court.  The Court then proceeded to the merits of Plaintiff's claim and concluded that the Court held that the District Court erred in entering judgment on the pleadings in Defendants' favor.  

On March 29, 2006, the District Court found that there was no final enforceable settlement agreement between the parties.  Radaszewski v. Maram, 2006 WL 861243 (N.D. Ill. Mar. 29, 2006).  The parties had exchanged numerous settlement offers, both written and verbal, and had submitted memoranda regarding the status of the settlement proceedings.  The parties had disagreed about whether an enforceable settlement agreement had been reached.

There was a bench trial beginning September 10, 2007.  At the time of trial, the Plaintiff's son was receiving 16 hours of private-duty nursing per day pursuant to the injunction entered by the state court.

The Court issued its findings of fact and conclusions of law after the bench trial on March 26, 2008.  Radaszewski v. Maram, 2008 WL 2097382 (N.D. Ill. Mar. 26, 2008).  The Court held that Plaintiff had sufficiently stated and proved a claim under the ADA and RA.  The Court entered judgment in Plaintiff's favor; the parties were ordered to meet, confer, and submit a proposed order setting forth appropriate relief consistent with the Court's opinion.

On May 9, 2008, the Court issued a permanent injunction.  The order enjoined the Defendant from reducing coverage for Plaintiff's son to fewer than sixteen hours per day of skilled nursing services at his parents' home.  Plaintiff was also awarded costs and fees, and the Court retained jurisdiction for purposes of enforcing the injunction. 

The case is now closed, and there has been no further litigation.