Nevertheless, the Seventh Circuit’s holding in Walker is controlling in this Court until either
the Supreme Court or the Seventh Circuit hold otherwise. See United States v. Krilich, 178 F.3d
859, 861 (7th Cir. 1999); United States v. Glaser, 14 F.3d 1213, (2.6 (7th Cir. 1994), Accordingly,
Plaintiff's ADA claim must be dismissed pursuant to Walker. See Boudreau v. Ryan, 2001 WL
840583 (N.D. Ill. May 2, 2001) (dismissing plaintiff's Title I ADA claim pursuant to Walker, noting
that Garrett calls into question Walker but the court was bound by the Seventh Circuit’s holding in
Walker); see also, Block v. Rockford Public School Dist. # 205, 2001 WL 1195757 (N.D. Ill. Oct.

10, 2001); Stewart v. Office of Rehabilitation 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 the 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. See Rothman, 123 F.3d at 451; Crawford v. Indiana Dept. of Corr., 115 F.3d 481, 483 (7th Cir.
1997).

The RA, as the ADA, does not require that the State create and fund a program for the

disabled that does not already exist. Instead, Section 504 requires “the evenhanded treatment of



they both prohibit imposition of personal liability). The court concluded that the Ex parte Young
doctrine, 209 U.S. 123 (1908), which stands for the proposition that the defendant is the state official
rather than the state itself, is inapplicable to Title II] cases. Waiker, 213 F.3d at 347.

In the instant case, Plaintiff argues that Gamer 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 Telecommunications Act of 1996 did not prohibit a suit
seeking injunctive relief against state commissioners in their of‘icial 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 of Alabama 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 ‘imited 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 applicatle to the States. Those standards can be
enforced by the Untied States in actions for money damages, as 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 Young doctrine is applicable to Title HI of the
ADA post Garrett. See e.g., Carten v. Kent State University, 282 F.3d 391 (6th Cir. 2002); Gregory

v. Administrative Office of the Courts of the State of New Jersey, 168 F. Supp. 2d 319 (D. N.J. 2001).



qualified handicapped persons” relative to those persons who do not have disabilities. See
Southeastern Comm. Coll. v. Davis, 442 U.S. 397, 410 (1979) (Southeastern); 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-day coverage-limit rule -- which was
neutral on its face, was not alleged to rest on discriminatory motive, and did not deny the
handicapped access to or exclude them from the particular coverage 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 nonhandicapped 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 nursir.g :0 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. The 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, Plaintiff's RA claim also fails. Sze Rodriguez, 197 F.3d at 618-19
(rejecting both ADA and RA claims based on state not providing z 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.

Q

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j ff
JOHN W. DARRAH
Um

ed States District Judge



Minute Qrder Form: (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge John W. Darrah Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01C 9551 DATE 9/10/2002
CASE DONNA RADASZEWSKI ws. JACKIE GARNER
[ TITLE

of the motion being presented.]

[In the following box (a) indicate the party filing the motion, ¢-g., plain T, defendant, 3rd party plaintiff, and (b) state briefly the nature

OFRCP4(m) CO Local Rule 41.1 OOFRCP41(a)(1) 0 FRCP41(a)(2).

pleadings is granted.

(41) oO [For further detail see order (on reverse side of/attached to) the origine! minute order. ]

MOTION: _.

DOCKET ENTRY: ~

qd) Qa Filed motion of [ use listing in “Motion” box above.]

(2) Q Brief in support of motion due

(3) oO Answer brief to motion due___. Reply to answer briefdue__

(4) oOo Ruling/Hearingon___sset for___—_at.

(5) Oo Status hearing[held/continued to] [set for/re-set for]on_—sset for att

(6) im Pretrial conference[held/continued to] [set for/re-set for]on____—setfor__—at_
(7) oO Trial[set for/re-set for]on____at.

(8) Oo [Bench/Jury trial] [Hearing] held/continuedto at.

(9) oO This case is dismissed [with/without] prejudice and without cosis[by/agreement/pursuant to}

(io) oi [Other docket entry] Plaintiffs motion to defer ruling on defendant’s motion for judgment on the
pleadings is denied. Enter Memorandum Opinion And Order. Defendant’s motion for judgment on the

No notices required, advised in open court.

No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

v Docketing to mail notices.

Mail AO 450 form,

Copy to judge/magistrate judge.

couriroom
LG deputy’s
initials

Date/time received in
central Clerk’s Office: mailing deputy initials

‘Document
Number



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
DONNA RADASZEWSKI, Guardian, on behalf )
of Eric Radaszewski, )
)
Plaintiff, )
9) No. 01 C 9551

v. )
)

JACKIE GARNER, Director, Illinois Department ) Judge John W. Darrah
of Public Aid, )
)
Defendant. )

MEMORANDUM OPINION AND ORDER

Plaintiff, Donna Radaszewski, filed suit against Defendant, Jackie Garner (“Gamer”), the
Director of the Ilinois Department of Public Aid (“IDPA”), in the Circuit Court of DuPage County,
Illinois. Garner removed the action to federal court based on the addition of federal claims in
Plaintiff's Supplemental Complaint. This Court previously remarded Plaintiff's state law claims
and retained jurisdiction over Plaintiff's American with Disabilities Act (“ADA”) and Rehabilitation
Act (“RA”) claims. Presently before the Court is Defendant’s Motion for Judgment on the
Pleadings.

A motion for judgment on the pleadings pursuant to Rule 12(c) is subject to the same
standard as a motion to dismiss for 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 ». Corporate Receivables, Inc., 205

F.3d 323, 326 (7th Cir. 2000). The court should grant the motion only if it appears beyond a doubt



that the plaintiff cannot prove any set of facts that would support the allegations in the complaint and
the plaintiff’s claim for relief. Fallimento Coop. M.A., 995 F.2d at 791.

Plaintiff's 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 surgery and treatment of the 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 of twenty-one, the IDPA provided funding for sixteen hours a day
of private-duty nursing in Eric’s home under the federal Medicaid program. At the age of twenty-
one, the IDPA reduced its reimbursement to the equivalent o/’ 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 services 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 Plaintiff cannot bring suit against the IDPA Director under Title
Il of the 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 proper 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 Il are similar in that