Legal Highlights

Mother Reunited with Sons

Lilly Mae Mitchell is a 40-year-old woman diagnosed with mild mental retardation. She and her husband, until his death, raised their two sons, now 14 and 16. Approximately six months before her husband died, Mitchell was diagnosed with breast cancer. She asked her husband's sister to be the guardian of her children in the event that anything happened to her. Apparently motivated by the opportunity to obtain access to the boys' Social Security benefits, the aunt filed a petition for guardianship and encouraged Mitchell and her boys to move in with her. The home turned out to be an abusive environment, with Mitchell being beaten on several occasions. At the recommendation of her doctor, Mitchell fled the home for a crisis center for abused women. The following day she returned to the aunt's home with the sheriff to retrieve her children, but she was denied custody of her children when the aunt produced the guardianship papers.

Equip for Equality filed a petition on Mitchell's behalf to terminate the aunt's guardianship. In response to the petition, the aunt attempted to discredit our client's parenting ability because of her developmental disability. After a two-day trial, the judge ruled in favor of our client, finding that there was no reason that she should not have custody of her children. As a result, the children have now been reunited with their mother and are doing fine. Barry Lowy, senior attorney in Equip for Equality's Springfield office was the attorney for Mitchell.

Professor Reinstated to Faculty After Discrimination

Equip for Equality represented Jacqueline Haas, a chemistry teacher, against her employer, City Colleges of Chicago, in an employment discrimination suit brought in federal court under Section 504 of the Rehabilitation Act of 1973. The suit alleged that City Colleges of Chicago discriminated against her by failing to provide reasonable accommodations, denying tenure, terminating employment and refusing to rehire her part time because of her disability.

Dr. Haas holds a Ph.D. in chemistry from Oregon State University, two master's degrees in teaching chemistry and biology from Universität Karlsruhe, Karlsruhe, Germany, and a bachelor of arts degree from the University of Chicago. Prior to being denied tenure, she received the highest praise for her teaching from student evaluations, as well as from her department chairman who also made an unqualified recommendation that she be awarded tenure.

A ruptured brain aneurysm in 1989 left Haas with difficulties with walking and seeing, and with manual dexterity and lifting. At Kennedy-King she faced daunting obstacles each day due to the lack of building accessibility, the lack of training and insensitivity of staff, and the refusal of the college to provide her the most minimal accommodations.

Haas's visual and dexterity impairments meant that it took her far longer than the norm to complete manual tasks, such as typing and organizing materials. Kennedy-King refused to provide Haas extended access to her own office so that she could complete tenure requirements, which included compiling a portfolio of her extensive accomplishments and completing a tenure project. City Colleges refused to grant Haas an extension of time within which to complete the project or an additional year in which to compete for tenure, despite having granted these concessions to others who did not have disabilities.

In its complaint, Equip for Equality asked for a judgment declaring that City Colleges of Chicago was in violation of Section 504 of the Rehabilitation Act for denying Haas tenure and for refusing to provide her with reasonable accommodations. It also asked for an injunction requiring reinstatement of Haas to a faculty position at City Colleges with sufficient time to complete a new application for tenure, back pay and benefits, compensatory damages and attorneys' fees. The federal lawsuit proceeded for more than two years, in which extensive discovery took place. The case was about to be set for trial when the parties reached the settlement, resulting in Haas' reinstatement to the City Colleges faculty. The specific terms of the reinstatement and other aspects of the settlement are confidential. Karen Ward, Equip for Equality's senior counsel, represented Dr. Haas in this case.

Man Given Paratransit Supports

"Dave B.," a 43-year-old man with a brain injury from birth, has worked for a food-service company in a public school for over 20 years. He uses ADA Paratransit to travel to and from his job. In the spring of 2004, when Dave went through the Regional Transportation Authority's paratransit recertification process, the RTA concluded that he was capable of using mainline bus or rail service and made him ineligible for ADA Paratransit. Without transportation accommodations, Dave worried that he might have to quit his job. He had no experience riding mainline buses and trains alone and had never received travel training. Ironically, once someone is ineligible for ADA Paratransit, he or she is also ineligible for RTA's Travel Training Program. The public transit agency offered fixedroute bus service to and from Dave's job, but it involved a transfer, and he had never tried it. Dave understood that he could save at least $60 each month by riding fixed-route buses instead of paratransit, plus he would be more independent, so there were good reasons for him to learn to use mainline transit.

With advocacy assistance from Equip for Equality, Dave B. won his appeal and was granted temporary paratransit eligibility for one year, to allow him to try travel training. As the Equalizer goes to press, Dave has begun travel training, learning how to travel by bus or train to work, the shopping mall, and other destinations.

Federal Appeals Court Issues Positive Olmstead Decision

In Radaszewski v. Maram, the U.S. Court of Appeals for the 7th Circuit, which includes Illinois, ruled in favor of the plaintiff, a young man with severe disabilities who sought to receive services in his home rather than in an institution. The complaint was dismissed by the District Court, without a trial, on the grounds that neither the Americans with Disabilities Act (ADA) nor the Rehabilitation Act requires the state to create or fund a home services program that does not already exist. The Court of Appeals sent the case back to the District Court for trial, finding that the complaint permits an inference that a home placement could be reasonably accommodated and would not result in a fundamental alteration of the state's programs. Sarah Megan and her colleagues at Prairie State Legal Services represented the plaintiff. Equip for Equality, Access Living and the ACLU, filed an amicus (friend of the court) brief in support of the plaintiff.

When 13 years old, Eric Radaszewski had brain cancer and then a stroke, and he now needs 24-hour medical care to survive. Illinois' Medicaid program for Medically Fragile, Technology Dependent paid for private-duty nursing care in his home until he turned 21. At 21, he lost his program eligibility but became eligible for two other sources of in-home nursing: the Illinois Medicaid plan and the Home Services Program (HSP).

Unfortunately, neither of these programs provided Radaszewski with the services he needed. Illinois abruptly changed its Medicaid plan to eliminate private-duty nursing, except through HSP, which put a cap on the amount that a waiver participant could receive. That amount translated to only four to five hours a day of in-home nursing services, far too little to allow Radaszewski to live at home. The cap applied even where HSP applicants could demonstrate that it would be more expensive for the state to serve them in an institution than at home.

In reversing the District Court's dismissal, the court noted that Illinois already provides in-home nursing through HSP - although in an amount less than what Mr. Radaszewski needs - a fact that "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" (2004 WL 1982334 at *12). The court rejected the state's argument that Radaszewski's high cost of care renders him ineligible for HSP and found that, because the home is an appropriate setting for him and would be less expensive than an institutional setting, he is indeed eligible for HSP. He would need a modification to HSP in the form of an increased rate, but if the cost of an institutional 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" (2004 WL 1982334 at *15).

The court also noted that Radaszewski might well require oneon- one nursing even in an institution. The court found that the viability of an ADA or Rehabilitation Act claim does not depend on proof that the services a plaintiff needs in a community setting already exist in exactly the same form in an institutional setting: "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, 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" (2004 WL 1982334 at *12).

EFE Achieves Final Victory in Hospital Access Case

Equip for Equality recently obtained a final judgment against Ingalls Memorial Hospital in a case filed in United States District Court for the Northern District of Illinois. The ruling affirmed Equip for Equality's authority to make unannounced visits to the inpatient psychiatric units of hospitals and to meet with the patients of those units. Ingalls had refused to allow Equip for Equality to tour the inpatient psychiatric units and educate patients about their rights. Equip for Equality asserted that Ingalls' denial of access violated federal and state laws granting Protection and Advocacy Systems access to psychiatric facilities. Ingalls claimed that without a court order or when not in the process of an investigation or response to a patient complaint, Equip for Equality could not access its facilities. In November of 2003, the court rejected Ingalls' position and permanently enjoined it from denying Equip for Equality reasonable access to its psychiatric units.

The court also ordered Equip for Equality and Ingalls to create a joint "protocol" that would govern the conditions of access. Unable to come to agreement, the parties proposed separate protocols. On August 5, 2004, the court issued a 13-page opinion that adopted most of the features of Equip for Equality's protocol. The ruling upholds Equip for Equality's authority to conduct monitoring and education in the units, and specifically held that the organization was entitled to monitor the units outside of regular business or visiting hours, except between midnight and six a.m.; Equip for Equality was entitled to initiate contact with and respond to patients while engaging in its monitoring and education functions; Equip for Equality was entitled to access nursing stations for monitoring purposes; and Equip for Equality staff did not have to sign any agreements assuming risks for their visits. Ingalls did not appeal the ruling.

"The judgment is an important victory," says Equip for Equality senior attorney Byron Mason, who handled the case. "The court's ruling affirms that we have broad authority to monitor inpatient psychiatric units and to have contact with patients during monitoring visits."

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