Legal Highlights

Temporary Restraining Order Allows Person with Disability to Remain Home

At 15, Gretchen Sidell contracted a severe case of meningococcal meningitis and experienced a brainstem stroke that left her almost totally paralyzed. Although her cognitive abilities remain largely unimpaired, all her bodily functions have been compromised, and she has complex medical needs. She requires skilled nursing care 24 hours a day. From her 1999 hospital discharge through Dec, 1, 2004, the Illinois Department of Public Aid (IDPA) approved and paid for 20 hours per day nursing care for her in her home under a Medicaid waiver program for children who have exceptional medical needs and who would be institutionalized at state expense if not given care at home.

The state approved the extensive nursing services plan for Sidell based on its determination that the services were medically necessary and that the cost of care she received at home was less than the cost of the care it would pay for her in a nursing home.

Unfortunately, when Sidell turned 21, the state cut the funding for her in-home nursing services by more than 50 percent. This dramatic change in services was simply because she was no longer eligible for the children's Medicaid program, not because of any change in her needs or the cost to the state for her care. Due to IDPA's funding cut, Gretchen now faces an untenable choice: remain at home with reduced services, in danger of a lethal medical crisis, or reside in an institution, cut off from home, family and community life, to get the care she needs.

Equip for Equality and Prairie State Legal Services filed a federal complaint on Sidell's behalf, seeking declaratory relief that the state's actions constitute illegal discrimination under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. Recently, the court granted a motion for a temporary restraining order, which will allow Sidell to continue to receive services in her home at the same level while the litigation is pending.

City of Chicago Agrees to Change Policies at Auto Pound

Dr. Olivia Scarse, a former cardiac surgeon who is now disabled, twice had her car towed for parking in a "handicapped" parking place, even though she placed a disability placard on her rearview mirror. Both times it was determined that her car was legally parked and the parking tickets were thrown out.

However, each time she picked her car up at the auto pound, she experienced problems. While waiting to retrieve her car, she was unable to get water to take pain medication; the tow lot did not provide her with a chair to relieve the pain of standing; and she was unable to reach the counter to complete the paperwork to retrieve her car.

After unsuccessfully attempting to address these problems with the city, Scarse, with Equip for Equality as her counsel, filed a complaint with the Chicago Commission on Human Relations. Following a finding of substantial evidence, the parties entered mediation and reached an agreement to settle the case. Under the settlement, the city has agreed to post signs in all its auto pounds, stating that people with disabilities will be provided accommodations and that if people have any problems gaining accommodations, they should call 311, the nonemergency assistance number in Chicago. The settlement also requires the city to train all its auto pound employees on disability awareness and sensitivity, and specifically commits the city to teaching its employees to provide a chair and water, and, upon request, to assist people with disabilities with their forms.

Firefighter with Diabetes Settles Employment Discrimination Suit

Following a year of litigation in federal court, a settlement was reached in the case of David Mark Wozniak v. the City of Aurora. In February of 2002, Wozniak, who has insulin-treated diabetes, was terminated from his job as a firefighter with the city of Aurora. Equip for Equality brought suit on behalf of Wozniak in federal district court in Chicago, under Section 504 of the federal Rehabilitation Act. The suit claimed that the city discriminated against Wozniak by denying him reasonable accommodations on the job and by terminating him based on stereotypes and assumptions involving diabetes, rather than on an individualized assessment that supported a conclusion that he could not perform the essential functions of his job as firefighter. Wozniak had nearly 20 years' experience as a firefighter, had been decorated for his performance, and had received positive performance evaluations throughout his tenure with the fire department. After completion of discovery in the case, Wozniak accepted a monetary settlement in exchange for dismissing his case.

"Mark, with diabetes, was able to perform his job with distinction for many years," says Equip for Equality Senior Counsel Karen Ward, lead attorney in the case. "And he could have continued to do so had the city of Aurora cooperated in providing accommodations to him rather than terminating him. We are proud of Mark for bringing this action in the federal court, and we believe that the case, and the settlement, will further the goal of eliminating discrimination against persons with diabetes, particularly in public safety positions."

Efforts to Address Discrimination Against Cook County Inmates with Mental Illness Continue

Equip for Equality, in conjunction with Bazelon Center for Mental Health Law and the law firm Deckert LLP, filed a class-action lawsuit in the federal court in Chicago on behalf of individuals with mental illness who are incarcerated by the Cook County Department of Corrections while awaiting trial. The suit alleged that Cook County is violating the Americans with Disabilities Act by barring inmates with mental illness from substance- abuse programs and various supervised community release programs. It also contended that these inmates are denied due process under the 14th Amendment of the U.S. Constitution because they are released into the community without arrangements to access necessary medication or mental health services.

Defendants filed a motion to dismiss the case, and, after extensive briefing, the judge agreed that the case should be dismissed at this time. With respect to the claim that inmates were being barred from participating in certain jail programs, the judge decided that the plaintiffs had not exhausted their administrative remedies as required by the Prison Litigation Reform Act. As to the claim that inmates are denied due process because they are released without access to medication and mental health services, the judge ruled that that count should be dismissed because the plaintiffs' claims were too speculative and, thus, they had no standing to bring suit.

Equip for Equality and its cocounsel, while disappointed with the judge's ruling, are revising their arguments and will be bringing another suit that addresses the concerns raised by the court and that seeks redress for the continued discrimination and constitutional violations inmates with mental illness continue to experience.

Subscribe to the Equalizer | Privacy Policy | Terms of Use