Case Victories and Pending Litigation
Abuse and Neglect
EFE Achieves Settlement in Wrongful Death Lawsuit - Young Woman Died in 1999 Tragedy at Community Developmental Disability Facility
Equip for Equality has achieved a confidential monetary settlement in a wrongful death lawsuit filed Oct. 24, 2000, in the Circuit Court of Cook County. The suit was brought on behalf of the estate of Jennifer Klimek, a 36-year-old woman with a severe developmental disability, by Byron Mason, EFE Senior Attorney, against Glenkirk, the Glenkirk Housing Association and five individual defendants. In addition to the monetary settlement, Glenkirk has agreed to revise existing staff training practices, as well as other policies and procedures.
Jennifer died on Dec. 26, 1999, during the Christmas holidays. At the time of her death, she had been a resident of Glenkirk community facilities for about 14 years. She enjoyed a full and active life in the community, including participation in a day work program and shopping. She also liked to sing and ride her bicycle.
Diagnosed with Prader-Willi Syndrome, her symptoms included early developmental delays, mental and functional retardation, short stature, and an insatiable and uncontrollable appetite that would result in serious health consequences if not carefully monitored. She had been transferred from a Glenkirk facility located in Niles, Ill., a northern Chicago suburb, to a facility in nearby Mount Prospect due to a staffing shortage. Because her activities were not properly monitored when she was transferred, she ingested some harmful materials, resulting in her death.
"The circumstances surrounding Jennifer's tragic and untimely death might have been averted, but now, with this settlement, the Klimek family at least has some resolution," said Mason. "Since the filing of the lawsuit, we have been impressed with Glenkirk's commitment to improve the quality and safety of their vocational and residential services to individuals of all ages with developmental disabilities, and we are hopeful that these positive changes will make a significant impact on the lives of other people with disabilities."
The complaint alleged Glenkirk failed to: properly monitor and supervise her ingestion of food and drink, utilize locks on all doors and cabinets to ensure her safety, recognize the nature and severity of her medical condition on Dec. 26, 1999, and seek a timely medical consultation.
"Equip for Equality strongly supports the concept of integrated community living for people with disabilities. But to be successful, these programs must have adequate staffing, training and resources to meet the needs of each individual," said Zena Naiditch, EFE President and CEO.
"State funding for community programs and facilities for people with disabilities has been seriously inadequate for many years, and this lack of funding puts the safety and well-being of some individuals with disabilities at risk. This is a crisis situation, and we urge the Governor and the Legislature to find alternative solutions to the state's fiscal dilemma to avert additional tragedies."
Community Integration
EFE Files Class Action Lawsuit for Inmates with Mental Illness Against Cook County Jail Seeking Linkage to Mental Health Treatment and Services Upon Discharge
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 awaiting trial.
The suit alleges that Cook County is violating the Americans with Disabilities Act (ADA) by barring inmates with mental illness from substance-abuse programs and various supervised community release programs. It also contends that these inmates are denied due process under the 14th Amendment because they are released into the community without arrangements to access necessary medication or mental health services.
"People with psychiatric disabilities are entitled to equal access to government programs and services, including those provided by Cook County Jail," said Barry C. Taylor, Legal Advocacy Director for Equip for Equality. "The ADA prohibits people with disabilities from being excluded simply because of mental illness. Our suit seeks to rectify this unfair exclusion so people with psychiatric labels can receive the same opportunities as other detainees." Senior Attorney Byron Mason and Managing Attorney Laura Miller are Equip for Equality's lead attorneys on this case. An estimated 1,500 people with chronic mental illnesses are incarcerated in the Cook County jail at any given time. Many have committed low-level offenses, and it is believed that at least 60 inmates and possibly many more could benefit from the jail's supervised community and treatment programs if they were not excluded because of their disability. More than 100 people with mental illnesses are discharged each month without arrangements for case management or for accessing needed medication.
Defendants filed a motion to dismiss the case, claiming that the allegations should be combined with two previous class-action suits filed on behalf of inmates with mental illness. Once the courts rule on this motion, Equip for Equality and its co-counsel will move forward seeking to remedy the injustices inmates with mental illness are experiencing.
DHS Refuses to Admit Man to Community Integrated Living Arrangement - Case Has Systemic Impact In an important decision that will have systemic impact, a state appellate court overturned the State of Illinois' denial of community disability services to Bradley Tinder, a 30-year-old man with cerebral palsy. Mr. Tinder had been residing in a nursing home for over five years and wanted to move into a Community Integrated Living Arrangement (CILA), a program that promotes independence for people with developmental disabilities.
The Illinois Department of Human Services rejected Mr. Tinder's application for CILA, claiming that he was not developmentally disabled and thus not eligible for the program. Represented by Equip for Equality attorney Janet Cartwright, Mr. Tinder appealed the decision to the Illinois Department of Public Aid, which upheld the denial. After a trial court affirmed the administrative decision, Equip for Equality filed an appeal with the Third District Appellate Court.
On appeal, the State argued that, in order to be eligible for CILA services, Mr. Tinder had to have a mental impairment. The Appellate Court rejected the State's position and found in favor of Mr. Tinder on the basis that state law explicitly includes cerebral palsy in the definition of developmental disability, even if no mental impairment is present. The Appellate Court's decision is significant because it will not only benefit Mr. Tinder, but also other people with developmental disabilities who do not have a mental impairment.
Employment
Professor with Disability Reinstated to City Colleges of Chicago
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 the City Colleges of Chicago discriminated against her by failing to provide reasonable accommodations, denying tenure, terminating employment and refusing to hire her part-time following termination because of her disability. The case recently settled resulting in the reinstatement of Ms. Haas to the City Colleges faculty. The specific terms of the reinstatement and other aspects of the settlement are confidential.
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 in walking, vision, manual dexterity, and lifting. At Kennedy-King she faced unfathomable obstacles each day due to the lack of accessibility of the building, 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 of 1973 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.
Firefighter Removed From Duty Seeks Reinstatement
David Mark Wozniak, a firefighter with the City of Aurora Fire Department, was hired in 1978 and was diagnosed with diabetes in 1982. From 1995 to 2002, the Fire Department imposed unnecessary restrictions on Wozniak's blood sugar monitoring, discouraged him from monitoring his blood sugar as often as was appropriate, and permitted other employees to harass him based on his diabetes. Despite these hurdles, Wozniak continued to perform well in his position. In February of 2002, the Fire Department fired Wozniak, citing a single incident, in which Wozniak had experienced hypoglycemia, as evidence that he was a safety risk. On that occasion, Wozniak had immediately and independently taken action (eating) to raise his blood sugar level, and no one, including Wozniak, was harmed or at risk of harm. Nevertheless, the Fire Department seized upon the incident to conclude that Wozniak was in a "category" that prevented him from serving as a firefighter.
In the federal complaint filed by Equip for Equality, Wozniak claims that the Fire Department's actions of denying him reasonable accommodations and then firing him based on his disability discriminated against him in violation of the federal Rehabilitation Act. He seeks a return to duty, back pay and damages. In the filing, Wozniak stated: "I want to go back to work for the City of Aurora taxpayers, doing the job that I know and love, and that I am fully capable of performing. I also want to put an end to this unfair and discriminatory policy." The parties are currently engaged in discovery.
Trial Averted in Police Department Discrimination Case
Keith Emrikson, represented by Senior Attorney John Whitcomb, was employed by the Lake Villa Police Department as a patrolman. He was diagnosed with a mild form of multiple sclerosis (MS), a condition that manifested itself only in exacerbations that were controlled by steroid injection. He worked days and was able to manage his health. During his 5 1/2 years as a patrolman, he had earned excellent recommendations and was awarded Officer of the Year in 1997.
In March 1999, the Department was reorganized and Emrikson was assigned to the night shift. On May 6, 1999, he told his employer that he had MS and asked for a reasonable accommodation under the Americans with Disabilities Act (ADA) to remain working days and thus control his schedule and prevent exacerbations.
Subsequently, it was alleged that the new Chief of Police told another officer that he thought the "MS thing was a piece of crap" and that Emrikson was a "malingerer" who had gotten away with things with the former chief. The Chief was also reported to say that he did not want an officer who would not pull his weight, like working night shifts, and that he would take care of it. Afterwards, despite a request by Emrikson to keep his condition confidential, the Chief and the other officers referred to Keith as "MS" and not by his name.
Emrikson filed a complaint to the Illinois Department of Human Rights (DHR) on his employer's failure to provide reasonable accommodations for his disability, failure to promote him as the officer with most seniority, and subsequent suspensions that appeared to be retaliatory. DHR granted the accommodation in September 1999. Less than a week later, the Lake Villa Police Department terminated his employment. The complaint was then amended to add the wrongful termination claim to his complaint.
Ultimately, a settlement agreement was reached and trial was averted. While the case was pending, Emrikson's physical condition deteriorated to the point that he became concerned about being able to access the disability pension that is available for active police officers. Accordingly, the Village of Lake Villa and the Lake Villa Police Department agreed to pay Emrikson $66,000 in damages and to promote him to sergeant. In addition, Emrikson will apply for a disability pension, which is 50 percent of a sergeant's full pay, and have three doctors determine whether he meets the eligibility requirements. As long as he is employed or on pension, he will be eligible to receive health insurance from the Village of Lake Villa.
Parental Rights
Mother Seeks to Regain Custody of Son
Catherine Marsh is a mother with a disability who is seeking to regain custody of her young son. She is appealing a Probate Court order awarding custody of the boy to his grandmother, who is Marsh's mother. The Probate Court entered the custody order without holding a hearing. The case raises many important issues, including the rights of parents to raise their children, the effect of a temporary guardianship over a parent with a disability on her right to raise children, the rights of children to be raised by their parents and the intersection of the Illinois Probate Act and the Fourteenth Amendment to the United States Constitution. Equip for Equality attorney Barry Lowy is representing Marsh. The parties are currently briefing the case for the Appellate Court, Fourth District.
Public Services
Matson Public Library Moves Toward Accessibility for Patrons with Disabilities
By Oct. 1, 2003, the Matson Public Library in Princeton, Ill., will ensure that each of its programs or activities is accessible to and usable by people with disabilities. The compliance with Title II of the Americans with Disabilities Act (ADA), which prohibits discrimination based upon disability in a public facility, stems from an agreement with the U.S. Department of Education, Office for Civil Rights (OCR), in response to a complaint filed in September 2002 on behalf of two mobility-impaired Princeton residents by EFE Senior Attorney Janet Cartwright.
"We are pleased that EFE was able to assist Princeton citizens who have mobility disabilities to gain equal access to the resources and programs at the public library," said Cartwright. "The ability of people with disabilities to participate fully in community life is a natural fulfillment of their basic civil rights as defined by the ADA."
When OCR conducted an on-site inspection in November 2002, it verified the inaccessibility of the main entryways, all of which had stairs, and the facility's washrooms on the upper and lower levels. Built in 1913, the 90-year-old building had not undergone any renovations, alterations or additions since the 1960s.
OCR also determined that the library's Homebound Program operated by volunteers failed to allow patrons to borrow reference materials, such as encyclopedias and bibliographies, to view the library's catalog to determine the availability of materials, or to use its computers, and thus did not comply with the ADA.
"It should be noted," said Cartwright, "that for many low-income people with disabilities, owning a personal computer is not an option, and, consequently, they are denied access to the educational opportunities of practicing computer skills and access to the Internet." OCR ruled that because the Matson Public Library was an "existing" facility, the building itself was not required to be made accessible but still had to make its programs accessible by the reassignment of programs and activities to an accessible location, alteration or construction of facilities to provide accessibility, and other innovative methods to accommodate mobility-impaired patrons, such as assigning personal aides and providing home visits.
"The library experience is taken for granted by most of us," said Barry Taylor, EFE's Legal Advocacy Director, "and, before now, many individuals in Princeton with mobility and developmental disabilities have never been inside the library with the opportunity to examine the array of books, periodicals, audio tapes, books on tape, videotapes, CDs, reference materials and computers. Because of OCR's ruling, new doors are now open for people with disabilities."
Self Determination
EFE Wins Important Mental Health Victory in Guardianship Case - Appellate Court Rules Nursing Home Falls Under Mental Health Code
In a far-reaching decision that broadly impacts the rights of people with mental illness under guardianship in Illinois, the Appellate Court, 4th District, held that any person, including the Office of State Guardian (OSG), must comply with the requirements of the Mental Health Code before placing a person in the behavioral unit of a skilled-care nursing facility, establishing that it qualifies as a mental health facility. Prior to this decision, the law was not clear that a nursing home could qualify as a mental health facility.
"The significance of this decision for people with mental illness who live in nursing homes with mental health units or nursing homes primarily serving the mentally ill is profound; it means that the added protections of the state's mental health law apply to them," says Zena Naiditch, President and CEO of Equip for Equality.
Equip for Equality (EFE), the federally mandated Protection and Advocacy System for people with physical and mental disabilities designated by the Governor, filed the appeal on behalf of Sandra Muellner (Sandra Muellner v. Blessing Hospital and Office of State Guardian), a 55-year-old woman diagnosed with mental illness who was involuntarily placed in the behavioral unit of Sycamore Health Care, a 24-hour skilled nursing facility, in Quincy, Ill., by the Office of State Guardian. Senior Attorney Barry Lowy from EFE's Springfield office represented Muellner.
"Our decision to pursue this issue was based on the potential systemic impact of the case for other people with mental illness, including those under guardianship, whose right of self-determination would be infringed upon in a similar situation," says Lowy. "By ruling that nursing homes are covered by the Mental Health Code, the Appellate Court has ensured new rights protection for people with mental illness whose guardian might attempt to place them in a segregated facility against their will."
Muellner's situation arose after the death of her husband, which caused her to become depressed and to develop other health problems. She was convinced to admit herself to the psychiatric unit of Blessing Hospital, where a social worker alleged that Muellner could not care for herself and filed petitions for guardianship and temporary guardianship.
The trial court appointed the Office of State Guardian as Muellner's temporary guardian and scheduled a hearing for a plenary guardianship for January 2002. In November 2001, the Office of State Guardian unilaterally placed Muellner against her will in New Horizons, which is the behavioral unit at Sycamore Health Care.
EFE represented Muellner at the hearing for plenary guardianship and filed a motion to limit the Office of State Guardian's power to place Muellner in a nursing home because OSG had not complied with the Mental Health Code's requirements for involuntary placements. Julie Irvine, program director for the West Central Illinois Center for Independent Living (WCI-CIL) testified on Muellner's behalf, stating that she was capable of living independently in the community with the aid of a personal assistant.
The trial court, however, denied EFE's motion and granted the Office of State Guardian the right to place Muellner in a nursing home if placement in a less restrictive environment was deemed harmful to her.
EFE appealed the decision in March 2002, even though Muellner had by then been permitted to return to independent living with assistance from a state grant designed to help persons move out of nursing homes and live independently in the community. With WCI-CIL's help, she is doing well under this arrangement.
"This case is an example of Equip for Equality's commitment to advocate that people with disabilities receive due process of law," says Barry Taylor, EFE Legal Advocacy Director. "Involuntary placement of people with disabilities in a segregated facility is a serious deprivation of individual liberty, and guardians must meet the standard under the Mental Health Code to justify such placements."
Special Education
The Right to a Free, Appropriate Education
A favorable decision was obtained March 28, 2003, following a due process hearing before the Illinois State Board of Education on behalf of Tiffany Wintz, a high school special education junior, who was attending a cosmetology vocational course four days a week located 22 miles from her school and 16 miles from home.
Represented by Senior Attorney Janet Cartwright from EFE's Rock Island office, her parents had requested that Rochelle Township School District in Rochelle, Ill., transport Tiffany to and from the class, which the district refused.
Since the spring of 2002, Tiffany's mother had been driving a total of 85 miles daily to pick up her daughter from school in Rochelle, get her to Hair Professionals in Sycamore by 1 p.m. and then pick her up at 5 p.m. for the trip home. The hearing officer found that the school district was in violation of the Individuals with Disabilities Education Act (IDEA) because transportation is a related special education service and, therefore, the district must transport the student to her cosmetology class and reimburse the parents for expenses already incurred. The ruling stated that the school district should have included the cosmetology course as part of Tiffany's transition plan, in her Individual Education Plan (IEP).
"This case is important because it defines the importance of a school district's responsibility to draft an IEP that is all-inclusive and responsive to the needs of the student," said Cartwright. "Transportation here was a basic service to which Tiffany was entitled under the IDEA, and the many hours the family sacrificed to prepare for and participate in the hearing could have been avoided."
Sisters Seek Inclusive Setting in School
Kerry and Kristine M. are 13-year-old twins with Rett Syndrome, a genetic developmental disorder. They have severe physical disabilities, use wheelchairs and are non-verbal, relying on augmentative devices to communicate. Like other girls their age, they enjoy going to Navy Pier, eating at restaurants, swimming, horse riding, shopping for clothes and listening to music.
The girls' entire school careers have been spent at the United Cerebral Palsy School in Joliet where they have no contact with non-disabled peers and receive very little educational programming. They were placed at the school by defendants Manhattan School District #114 and Lincoln-Way Area Special Education Cooperative.
When their mother sought to move them to a public school where they could interact with non-disabled peers and partake in many educational and artistic opportunities, the defendants refused the request. Equip for Equality attorneys Howard Rosenblum and Debra Wysong represented the girls and their mother at a due process hearing, where they challenged the defendants' refusal. Unfortunately, the hearing officer, applying an incorrect legal standard and ignoring expert testimony, found that the girls must continue at their current school.
Equip for Equality filed a complaint in federal court, challenging the hearing officer's decision and alleging that the defendants violated the Individuals with Disabilities Education Act (IDEA), the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act of 1973 (Section 504). The complaint added the Illinois State Board of Education as a defendant, based on its failure to adequately train hearing officers about IDEA's least restrictive environment provisions and to enforce the provisions in local school districts. The parties are currently engaged in discovery.
OCR Finds Discrimination in Special Ed District Busing Plan Ruling on a disability discrimination class complaint filed by EFE attorney Deborah Wysong against the Special Education District of McHenry County (SEDOM) in February 2003, the U.S. Department of Education, Office for Civil Rights (OCR), found that SEDOM had discriminated against 35 special education students attending North Middle School in Crystal Lake, Ill., during the 2000-2001 and 2001-2002 school years. SEDOM serves 18 school districts in McHenry County.
Specifically, SEDOM, which provides transportation for special-needs students, scheduled afternoon bus pickup after eighth period, thus denying them the full benefit of available school services, programs and activities enjoyed by the other students during the ninth period, in violation of Title II of the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973.
In a Chicago Tribune article ("Disabled pupils may get tutoring," March 24, 2003), SEDOM's director of programs and services Kathy Wilhoit described the loss of instructional time as "of little consequence for most or all of the pupils." One of the parents who brought the situation to EFE's attention, and prefers to remain anonymous, took exception with the comment, stating that "even 15 minutes per day for two years is equivalent to about 15 full days of lost education" - and that these children are entitled to compensation.
The settlement calls for teams composed of parents, teachers and district officials to review the Individualized Education Plans (IEP) of pupils to determine if they were hurt by the shortened school day and whether they need extra tutoring or other compensatory services as a result.
"OCR has made it clear that a shortened school day is discriminatory and that remedy is in order so that these students will have the same access to a public education as everyone else," says President and CEO Zena Naiditch.
Breaking Barriers for Students with Special Needs EFE attorneys Molly Paris and Shenetta Webster began working with Christopher Brown, a 21-year-old man with cerebral palsy, at the end of December 2001. Christopher's uncle and legal guardian, Victor Harris, contacted EFE and requested assistance in securing an inclusive environment for his nephew in the Chicago Public School (CPS) system.
For Christopher's entire educational experience, he had been placed in segregated settings. For many years, Harris had been advocating strongly for his nephew. He had attended Christopher's Individualized Education Plan (IEP) meetings and expressed dissenting opinions regarding his segregated placement and nonindividualized services. Despite continuous assurances that the issue would be addressed, Christopher continued to be segregated.
The options presented by CPS for Christopher to pursue as a career path were directed toward janitorial work, a field for which he was neither inclined nor suited, considering his physical weaknesses (mobility and balance issues). They did not reflect his strengths either - namely, his enthusiasm for auto mechanics. After Harris wrote a letter to the Illinois State Board of Education's (ISBE) Compliance Division, ISBE suggested mediation.
Equip for Equality represented Christopher at the mediation in February 2002. Christopher, who has a speech impairment, made clear that he would like to explore other career paths, including his lifelong interest, auto mechanics, to learn more about computers and, most importantly, to be in classes with his peers. The mediation agreement directed CPS to complete a comprehensive vocational evaluation, which had not previously been done, and to provide Christopher with a list of high schools for his consideration.
After ongoing negotiations between EFE and CPS, Christopher enrolled in his neighborhood high school for his senior year. He was accompanied by an individual aide and received a modified curriculum but was continuously with his peers. He switched classes between periods, took a quiz on The Odyssey, and took courses in economics and his favorite, auto mechanics.
On June 14, 2003, Christopher graduated from Morgan Park High School with his classmates. His uncle reported to EFE that at the ceremony, "They [his class and the audience] gave Christopher a standing ovation. It was as if he were a superstar. I was very proud." This statement, in essence, speaks very clearly to this case. Christopher's determination to break down these barriers of segregation, along with support from his uncle and EFE, has helped pave the way for other students with disabilities in Chicago.
