Clovis Unified School District v. California Office Of Administrative HearingsClovis Unified School District v. California Office Of Administrative Hearings
INTRODUCTION
Three of the appeals addressed in this opinion are taken from the District Court‘s decision ordering Clovis Unified School District to pay for the placement of real-party-in-interest Michelle Shorey in King‘s View Hospital as a residential placement under the Education for All Handicapped Children Act,
STATUTORY BACKGROUND
The Education for All Handicapped Children Act of 1975,
The term “free appropriate public education” is defined to include “special education” and “related services.”
[T]ransportation and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, and medical and counseling services, except that such medical services shall be for diagnostic and evaluation purposes only ) as may be required to assist a handicapped child to benefit from special education.... (emphasis added)
The EHA indirectly requires school districts to provide residential placements by defining elementary аnd secondary schools to include “residential schools.”
Under the Act an Individualized Educational Program (IEP) must be developed for each handicapped child.
The primary issue before us is whether Michelle Shorey‘s hospitalization at King‘s View Hospital constitutes either a “residential placement” or a “related service” which her local school district is required to pay for under the Act, or constitutes “medical services” excluded from the purview of the Act.
FACTS AND PROCEEDINGS BELOW
Michelle Shorey is a seriously emotionally disturbed child who is entitled to special education and related services under the Education of the Handicapped Act,
The Shoreys adopted Michelle at the age of 4 1/2. Apparently as a result of an extremely unstable and chаotic childhood, including neglect and abuse in eight or nine different placements before her ultimate adoption, Michelle developed serious emotional problems. When they adopted Michelle, the Shoreys lived in Washington state, where Michelle started public schooling.2 When the adoptive parents moved to Riverside, California in 1984, they enrolled the child in a mental health day treatment program. Shortly thereafter, however, because of her destructive behavior, she was placed in a mental health residential treatment program. In January 1985 the Shoreys moved to Fresno, leaving Michelle in Riverside. Although Michelle continued to perform adequately in the classroom, her emotional condition deteriorated considerably.
In March 1985, the Mental Health Director of the Riverside facility informed the Shoreys that Michelle‘s behavior had deteriorated to such an extent that the staff could no longer control her, even with medication. The Riverside staff recommended placement in an acute care facility. The Shoreys applied for Michelle‘s admission to King‘s View Hospital, an acute care psychiatric hospital in Reedley, California. In mid-March Michelle was discharged from the Riverside facility and placed at King‘s View. The costs of her placement there were paid primarily through the Shoreys’ private medical insurance until about July, when that coverage was exhausted.
During her first few months at King‘s View, personnel from Clovis Unified School District, the Shoreys’ district of residence, attempted to locate an appropriate residential school for Michelle‘s educational placement. They considered and suggested a number of options, of which the most appropriate were the State Diagnostic School, a temporary residential placement, and Re-Ed West, a residential school located in Sacramento. The Shoreys rejected these suggestions, believing that neither could provide Michelle with an appropriate education.
Instead the Shoreys requested that Clovis fund Michelle‘s placement at King‘s View. When Clovis refused to do so, Michelle‘s parents sought an administrative hearing pursuant to the “procedural safeguards” provisions of the EHA,
Clovis appealed the hearing officer‘s decision to the United States District Court for the Eastern District of California pursuant to
Clovis first sоught a temporary restraining order and a preliminary injunction under
Trial was delayed until March 18, 1986. In the interim, Clovis discovered that King‘s View had ties with the Mennonite church. Clovis moved to amend its complaint to add the issue of sectarian status. That motion, and a subsequent motion for reconsideration, were both denied by the District Court.
The District Court heard testimony at trial from those who knew or had occasion to interact with Michelle. The court ultimately ruled in favor of Michelle and ordered Clovis to pay all costs incident to her placement at King‘s View from August 16, 1985 through the 1985-86 school year. The court entered Findings of Fact and Conclusions of Law on June 17, 1986 and entered judgment on July 23. Following denial of their motiоn for a new trial and for amendment of the Findings of Fact and Conclusions of Law, Clovis and the State Defendants filed appeals. (No. 86-2747 and No. 86-2825). Michelle, whose counter-motion to amend Findings of Fact and Conclusions of Law was also denied, has cross-appealed. Michelle challenges the authority of the State Department of Education to seek to overturn the decision of the administrative hearing officer, and the failure of the District Court to extend her placement at King‘s View beyond the 1986 school year to which the administrative decision applied. (No. 86-2842).
On December 8, 1986, the District Court granted attorneys’ fees to Michelle Shorey pursuant to
THE “STAY PUT” PROVISIONS AND MOOTNESS
Michelle was at King‘s View throughout the 1985-1986 academic year pursuant to the August 16, 1985 order of the hearing officer and thereafter pursuant to the judgment of the district court. Under the “stay put” provisions of
The principal issue to which the supplemental briefs were directed was whether the “stay put” provisions required Clovis to maintain the child in King‘s View throughout the course of the court review proceedings which followed the agency decision that King‘s View was the appropriate placement.
During the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents or guardian otherwise agree, the child shall remain in the then current educational placement of such child, or, if applying for initial admission to a public school, shall, with the consent of the parents or guardians, be placed in the public school program until all such proceedings have been completed.
Clovis argues that under the stay put provisions the Shoreys should bear the King‘s View cost because the Shoreys originally placed the child at King‘s View on their own initiative. Clovis maintains it is irrelevant that the Shoreys won administrative and district court decisions holding that the placement was the appropriate one.
The Shoreys, however, argue persuasively that the school district and the state are responsible for the costs of Michelle‘s placement during the court review proceedings regardless of which party prevails in this appeal. They argue that the purpose and the language of the Act support a holding that Clovis, under the stay put provisions, was responsible for keeping Michelle in the King‘s View placement after the administrative decision that the placement was appropriate, and until a court directed otherwise.
The Shoreys’ position is supported by the decision of the United States Supreme Court in School Committee of the Town of Burlington v. Massachusetts Department of Education, 471 U.S. 359, 105 S.Ct. 1996, 85 L.Ed.2d 385 (1985). The Supreme Court there considered a situation, like this one, in which parents had unilaterally changed a placement, but had received a state administrative agency decision in favor of their choice. The Supreme Court there said that the agency‘s decision in the parents’ favor “would seem to constitute an agreement by the State to the change of placement.” The Court refused to give the stay put provisions a reading that would force parents to leave a child in what they feel may be an inappropriate educational placement, or act at their peril in keeping a child in their chosen placement, after a successful administrative ruling. Burlington School Committee at 372-73, 105 S.Ct. at 2003-04. The Court took the view that once the State educational agency decided that the parents’ placement was the appropriate placement, it became the “then current educational placement” within the meaning of section 1415(e)(3). Burlington concluded that the school was required to maintain that placement pending the court review proceedings pursuant to section 1415. We reach the same conclusion here. The district was responsible for maintaining the King‘s View placement through the pendency of court review proceedings.
The second question on which we asked for supplemental briefing was whether, because Michelle is no longer in King‘s View, the question of appropriate placement under the Act is moot. On this point, the parties agreed that it is not. Even though we have held that the district is responsible for the costs of her placement at King‘s View after the administrativе decision, there remains in issue the responsibility for the costs prior to that decision. If the Shoreys are correct on the merits, then the district must pay for the King‘s View placement. If the district prevails on the merits of the placement issue, then the Shoreys are responsible for the costs from the time they unilaterally placed Michelle in King‘s View until the time of the administrative decision favorable to the Shoreys. See Burlington School Committee at 373-74, 105 S.Ct. at 2004-05. These appeals are therefore not moot as to the issue of the appropriateness of the placement under the EHA.
RELATED SERVICE VS. MEDICAL EXCLUSION
Clovis agrees that Michelle‘s needs are such that a residential placement of some kind is necessary. See Kruelle v. New Castle County School District, 642 F.2d 687, 693-96 (3d Cir.1981); North v. District of Columbia Board of Educ., 471 F.Supp. 136, 139-41 (D.D.C., 1979). Nor does the district dispute that a highly structured and integrated program, offering regularly scheduled psychological services, including psychotherapy, is needed for Michelle to benefit from any educational program. Clovis also agrees that Michelle is entitled to state-supplied educational services while in the hospital, and those services are in fact provided by a local school district. Clovis asserts, however, that it is not obligated to pay for Michelle‘s hospitalization at King‘s View. It contends that the EHA does not require the school district to pay the costs of psychiatric hospitalization because that type of placement is a response to a medical rather than an educational need and is not the type of residential program contemplated by the Act. Clovis also contends that the intensive, extended psychological treatment Michelle receives at King‘s View is a “medical service” for which the school district is not financially liable under the Aсt, even if it is related to Michelle‘s education in the sense that she cannot fully benefit from her education without it. Hence, Clovis denies responsibility for Michelle‘s hospitalization, contending it is not the kind of “residential placement” or “related service” contemplated by the Act but is an excluded medical service.
The Shoreys, on the other hand, argue that Clovis is obligated under the EHA to pay King‘s View‘s fees because there is no other residential placement which can provide Michelle with the services she requires to benefit from her education. They note that the psychiatric treatment she receives is qualitatively the same as that provided in other residential placement centers or at day schools, and argue that therefore her treatment is not excludable as a “medical service.”3
The question is one of law, which we review de novo. United States v. McConney, 728 F.2d 1195 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
The “Tatro” Decision
The leading case on excludable “medical services” is Irving Independent School District v. Tatro, 468 U.S. 883, 104 S.Ct. 3371, 82 L.Ed.2d 664 (1984). Tatro did not involve a rеsidential placement, but its standards, though not dispositive, are helpful. That case involved an 8-year old girl who suffered from a neurogenic bladder and required insertion of a catheter into the urethra to empty her bladder every three or four hours. The Supreme Court held that the school nurse should perform that procedure as a “related service” under the EHA.
The Court based its decision, in part, on the fact the services did not have to be performed by a licensed physician. But the Court‘s decision was not based solely on the “licensed physician” distinction. The Court also supported its decision with a discussion of (1) the nature of the requested service and (2) the burden which it would place on the school district. With regard to the nature of the services, the Court explained that it was unable to distinguish between the services sought by the handicapped student and those routinely provided by the school nurse to non-handicapped students. It pointed out that even a trained lay person could have provided the services requested. Id. at 893-94, 104 S.Ct. at 3377-78. With regard to the burden, the Court began by recognizing that the genesis of the medical services exclusion was partly based on Congress’ intent to “spare schools from an obligation to provide a service that might well prove unduly expensive and beyond the range of their competence.” Id. at 892, 104 S.Ct. at 3377. It noted that the “services provided by a physician or hospital,” which are excluded, are “far more expensive” than the services of a school nurse. Id. at 893, 104 S.Ct. at 3377.
Both parties argue that they should prevail under the analysis in Tatro. The parties agree that Michelle is handicapped. They dispute whether the services provided to Michelle at King‘s View are necessary to aid her to benefit from special education or, as Clovis contends, primarily aimed at meeting her medical needs. They also dispute the extent to which the “licensed physician” distinction should control.
The Shoreys suggest that the only relevant inquiry under Tatro is whether the placement is supportive of a handicapped child‘s education. We think this test is far too inclusive, however, in light of the Act‘s explicit exclusion of medical services. If a child requires, for example, ear surgery to improve his hearing, he may learn better after a successful operation and therefore in some respects his surgery is “supportive” of his education, but the school district is certainly not responsible for his treatment. Similarly, a child who must be maintained on kidney dialysis certainly cannot physically benefit from education to the extent that such services are necessary to keep him alive, but again, it is not the responsibility of the school district to prоvide such maintenance care. See McKenzie v. Jefferson, 566 F.Supp. 404, 413 (D.D.C.1983) (“If [a schizophrenic child] had not been medically treated, she would have been unable to take advantage of and receive any benefit from her education, but the same would apply to any illness“). All medical services are arguably “supportive” of a handicapped child‘s education; therefore, mere “supportiveness” is too broad a criterion to be the test for whether a specific service is necessary under the Act to assist a child to benefit from special education.
Similarly, we reject the line of reasoning proferred in Vander Malle v. Ambach, 667 F.Supp. 1015, 1039 (S.D.N.Y.1987), that where “medical, social or emotional problems that require hospitalization create or are intertwined with the educational problem, the states remain responsible” for the entire cost of the placement. Rather, our analysis must focus on whether Michelle‘s plаcement may be considered necessary for educational purposes, or whether the placement is a response to medical, social, or emotional problems that is necessary quite apart from the learning process. See Kruelle v. New Castle County School District, 642 F.2d at 693; Corbett v. Regional Center for the Easy Bay, Inc., 676 F.Supp. 964, 968-69 (N.D.Cal.1988); McKenzie v. Jefferson, 566 F.Supp. at 408, 412; North v. District of Columbia Board of Educ., 471 F.Supp. at 160.
Medical Services Exclusion And The “Licensed Physician” Distinction
The Shoreys do not deny that Michelle‘s program is in part therapeutic, but argue for a narrow definition of medical services, contending that, under Tatro, medical services are only those services that must be provided by a licensed physician. They believe that the services which Michelle is provided at King‘s View are necessarily not excluded because, while some treatment is on that scale, not all of the sеrvices are provided by physicians.
We cannot agree. A number of District Courts have faced this issue and have concluded that the “licensed physician” distinction is inadequate as the sole criterion for determining when services fall under the medical exclusion from liability. In Max M. v. Thompson, 592 F.Supp. 1437 (N.D.Ill.1984), the District Court held that psychotherapy, a recognized related service under the Act, does not become excluded as a medical service merely because it is provided by a psychiatrist--a licensed physician--rather than by a psychologist. We agree with the reasoning of this opinion, and with its rejection of an arbitrary classification of services based solely on the licensed status of the service provider. If a licensed physician may provide related services without their becoming instantly “medical,” we believe that by the same token a program clearly aimed at curing an illnеss--whether mental or physical--does not become instantly “related” when it can be implemented by persons other than licensed physicians.
The post-Tatro case of Detsel v. Board of Education of Auburn, 637 F.Supp. 1022 (N.D.N.Y.1986), aff‘d 820 F.2d 587 (2d Cir.), cert. denied, 484 U.S. 981, 108 S.Ct. 495, 98 L.Ed.2d 494 (1987), is even more on point. There a district court found that intensive life support services necessary to maintain a child in school fell outside the “related services” mandated by the Act and “more closely resemble[d] the medical services specifically excluded by Sec. 1401(17) of the [EHA],” despite the fact that the services could be provided by a practical nurse rather than by a physician. Id. at 1027. Applying the principles of Tatro, the court found that holding the school district responsible for the provision of such “extensive, therapeutic health services” would be contrary to the rationale of the medical services exclusion in the Act, based as it is upon relieving schools of thе obligation to provide services calculated to be unduly expensive. Id.
We agree with the Detsel court, that under the analysis in Tatro, the Shorey‘s argument for limiting medically excluded services to those requiring a physician‘s intervention must fail. The Court in Tatro did not hold that all health services are to be provided as related services so long as they may be performed by other than a licensed physician. 468 U.S. at 891-95, 104 S.Ct. at 3376-78; see also Detsel, 637 F.Supp. at 1027. Rather, the Court held only that services which must be provided by a licensed physician, other than those which are diagnostic or evaluative, are excluded and that school nursing services of a simple nature are not excluded. In reaching this decision the Court considered the extent and nature of the services performed, not solely the status of the person performing the services. We must do the same.
Despite the Shoreys’ arguments, we see no reason why the “licensed physician” distinction should take on special significance in cases, such as this, which involve intensive psychological rather than physiological disability. A child hospitalized for ear surgery or kidney dialysis who, the Shoreys concede, is not entitled to subsidy of the costs of hospitalization, frequently must receive care by other than licensed physicians. The services of hospital nurses, dieticians, physical therapists, orderlies and other aids constitute integrated medical services in the treatment of a physical illness requiring the “medical” intervention of licensed professionals. Clearly all such services, including the strictly medical or surgical services themselves, “support” a child‘s education. But it would do havoc to the structure of the Act to exclude only the services of licensed physicians in such circumstances, and to require the school district to pay for all othеr services. At oral argument, the Shoreys conceded that the services of the aforementioned hospital personnel are excluded as medical, not because they are provided by doctors (because they are not), but rather because their institutional efforts are involved in the curing of a physical illness.
However, the Shoreys assert that when a child is psychologically or psychiatrically handicapped, as distinguished from a child who suffers a physical handicap, there is no single point at which the needs of the child become medical. They argue that a continuum of educational needs dictates that school districts must pay for the psychiatric hospitalization of such children under the Act‘s mandate to provide related services to all children “regardless of the severity of their handicap.”
We cannot accept as reasonable a definition of “medical” which ultimately turns on the distinction between physiological illness and mental illness. Such a definition would mandate huge expenditures by local school boards aimed at “curing” psychiatric illness but not require similar expenditures for treating children with physical problems who require the more traditional “medical” services. The clear intention of the Act is to provide access to education for all handicapped students on an equal basis. Section 1412(2)(B) precludes such an unfair result.
APPLICATION OF THE ACT TO THIS CASE
With these considerations in mind, we turn now to an examination of the case before us. We find that the psychiatric hospitalization of Michelle Shorеy, although perhaps necessary for her continued mental health, was not the financial responsibility of the Clovis Unified School District under the Act.
A. Services Provided at King‘s View
Michelle was hospitalized at King‘s View because of an “acute” psychiatric crisis. Her wild and destructive rages rendered her not only unable to benefit from education, but, indeed, generally uncontrollable.
At King‘s View, Michelle‘s program consisted of a residential/therapeutic program coordinated with an on-grounds classroom program. She spent her day in a variety of therapy programs including individual therapy, pottery, and animal care. These therapies were provided by various persons who met the state licensing or training requirements for hospital medical staff. Psychiatric nurses supervised the “residential” component of Michelle‘s program and were trained to complement her total treatment program. By law, a licensed physician, though not necessarily the primary treating physician, was required to supervise Michelle‘s overall treatment program. On the other hand, none of Michelle‘s therapy was actually provided by psychiatrists, nor did she require the prescription of psychotropic medication.
Because school districts are required by state law to provide education to school-aged patients confined to hospitals, see
B. The Services Are Not Primarily To Aid Michelle To Benefit From Special Education But Rather Are Excludable Medical Services
Michelle was hospitalized primarily for medical, i.e. psychiatric, reasons, and therefore the District Court erred when it determined hospitalization to be a “related service” for which Clovis was responsible under the Act.
The psychotherapeutic services Michelle received at King‘s View may be qualitatively similar to those she would receive at a residential placement, and it is clear that some psychological services are explicitly included within the definition of related services under the Act when pupils need such services to benefit from their special instruction. However, the intensity of Michelle‘s program indicates that the services she received were focused upon treating an underlying medical crisis. Where, as here, a child requires six hours per day of intensive psychotherapy, such services would appear “medical” in that they address a medical crisis.
Further, although Michelle could be helped by treatment by psychologists rather than psychiatrists, it stands to reason that the high cost of her placement is due to the status of King‘s View as a medical facility, requiring a staff of licensed physicians, a high staff to patient ratio, and other services which would not be available or required at a placement in an educational institution. While the cost of medical and hospital services is not dispositive, the Court in Tatro noted that the Secretary of Education, in promulgating the regulations, еxcluded “the services of a physician or hospital” partly because such services are “far more expensive” than the services, for example, of a school nurse. Tatro, 468 U.S. at 893, 104 S.Ct. at 3377. Clearly hospital care is, and was understood by Congress and Secretary of Education to be, a far more expensive proposition than an educational residential placement and a greater burden than the states could ordinarily be expected to shoulder in their budgets for education.
This conclusion is also supported by the failure of Congress to include hospitalization explicitly as a related service or placement under the Act. As the Supreme Court wrote in Pennhurst State School v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1982) “[i]f Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.” Similarly, in Board of Education v. Rowley the Court found that the EHA does not require states to mаximize the potential of each handicapped child, noting that any other view would be “contrary to the fundamental proposition that Congress, when exercising its spending power, can impose no burden upon the states unless it does so unambiguously.” 458 U.S. 176, 190 n. 11, 102 S.Ct. 3034, 3042 n. 11, 73 L.Ed.2d 690 (1981). We, too, recognize the unfairness of requiring school districts to pay for hospitalization on the basis of broad interpretations of ambiguous language in funding statutes such as the EHA.
Our decision is further supported by the state‘s characterization of hospitals such as King‘s View. Under section 1412(6) of the Act, the state educational agency is responsible for assuring that “all educational programs for handicapped children ... shall meet education standards of the State educational agency.” Thus the underlying policies which direct the establishment of individualized educational programs and their implementation are left to the discretion of educators and parents within the state. See Board of Education v. Rowley, 458 U.S. at 208-09 nn. 30, 31, 102 S.Ct. at 3051-52 nn. 30, 31. In California, hospitals such as King‘s View come under the jurisdiction of the State Department of Health Services.4 They are not included as educational placement options for handicapped pupils in that state. See
Furthermore, King‘s View hardly provided Michelle with any educational services. Rather, the local school district sent both regular and special education teachers to King‘s View to meet the educational needs of Michelle and other children who were patients there. Because King‘s View does not provide its patients with educational services, it differs substantially from facilities found by other circuits to be residential placements within the ambit of
In faсt, the educational services which the school district provided Michelle at King‘s View are those encompassed by the Act itself which states that “special education” includes specially designed instruction at home, at hospitals and at institutions.
Michelle may well be entitled to funds from other social agenciеs to cover the costs of her hospitalization, but the school district is not the proper agency for such relief.
OTHER ISSUES
Some brief mention must be made of the other issues presented in the appeals on the merits.
Sectarian Status Of King‘s View
The federal regulations governing the use of federal grant monies for education explicitly prohibit the use of such funds for religious purposes.
At trial Clovis moved to amend its pleading and offer testimony on the issue of King‘s View‘s affiliation with the Mennonite church. At that time, the District Court denied the motion and excluded Clovis’ proffered testimony relating to the decertification, considering the matter one for decision by the state courts. In its letter decertifying King‘s View, the State Department of Education wrote that Michelle “may remain [at King‘s View] pending the outcome of the litigаtion” because “[t]he Department does not believe it is wise to administratively decide an issue that is properly before the court” and “federal law appears to disallow any interference with a Hearing Officer‘s decision by the state agency, except by appeal to a court of competent jurisdiction.” In its final judgment, the District Court effectively determined the issue to have been mooted by the Superintendent‘s decision not to move Michelle. We agree.
The Shorey Cross-Appeal
At trial, the District Court indicated that, because its decision constituted an appeal from the administrative hearing in this case, it could not order placement beyond the end of the 1985-86 school year to which the administrative hearing officer‘s decision applied. In their cross-appeal, the Shoreys contend that the District Court erred in failing to grant their motion to amend the judgment to extend Michelle‘s placement. Because we reverse the order of the District Court ordering Clovis to pay for Michelle‘s placement while at the same time we require the school district to pay for such placement during the pendency of the review proceedings under the stay-put provisions of
The Shoreys also contend that the state defendants, in aligning themselves with appellant Clovis in this action, have violated EHA‘s requirements of finality and impartiality,
Under the EHA, the decision of the hearing officer is final and enforceable unless appealed.
Attorneys’ Fees Award
In view of our disposition on the merits of the case, it is apparent that Michelle Shorey was not a prevailing party and therefore was not entitled to attorneys’ fees under
The judgment of the District Court is REVERSED. The order granting attorneys’ fees to Michelle is also REVERSED. Each party will bear its own costs on appeal.