Henri and Mary TATRO, Individually, and as Next Friend of
Amber Tatro, A Minor, Plaintiffs-Appellees, Cross-Appellants,
v.
The STATE OF TEXAS, et al., Defendants,
State Board of Education, Defendant-Appellant,
The Irving Independent School District, Defendant-Appellant
Cross-Appellee.
No. 81-1454.
United States Court of Appeals,
Fifth Circuit.
April 25, 1983.
James W. Deatherage, Irving, Tex., for Irving.
Tally F. Parker, Jr., O. Glenn Weaver, Irving, Tex., amicus curiae for Irving, Texas Ass'n of School Boards, Ass'n of School Administrators.
Martha H. Allan, Asst. Atty. Gen., Richard L. Arnett, Texas Educ. Ass'n, Austin, Tex., for State Bd. of Educ.
James Todd, Austin, Tex., for plaintiffs-appellees, cross-appellants.
Appeals from the United States District Court for the Northern District of Texas.
Before BROWN, GEE and JOLLY, Circuit Judges.
GEE, Circuit Judge:
This is Amber Tatro's second appearance before this court. The facts and procedural history of her case are reported in detail in our prior opinion,
In early 1979, when Amber was three and one-half years old, her mother asked the Irving Independent School District ("school district") to provide special education for Amber. The school district agreed, and in a series of meetings with the Tatros, developed an Individual Education Program ("IEP") for Amber as required by the Education of All Handicapped Children Act ("EAHCA"), 20 U.S.C. Secs. 1401(19), 1414(a)(5) (1976). The IEP provided for Amber's placement in the school district's Early Childhood Development ("ECD") classes and for the provision of various other services to Amber, including physical and occupational therapy. The IEP did not provide for CIC and the school district maintained that it had no legal obligation to administer it.
Amber's parents next pursued an administrative appeal from the school district's decision not to provide CIC. See 20 U.S.C. Sec. 1415 (1976) (setting out procedures). Pursuant to 20 U.S.C. Sec. 1415(b)(2), an impartial hearing officer conducted a hearing and determined that the EAHCA required the school district to provide CIC. The Texas Commissioner of Education adopted the hearing officer's decision. Amber T., bnf Mary T. v. Irving Independent School District, TEA Docket No. 115-SE-579 (August 6, 1979). The Texas State Board of Education ("State Board") reversed the decisions of the Commissioner and hearing officer and reinstated the school board's decision not to provide CIC. After thus exhausting state remedies as required by the EAHCA, the Tatros brought the present action in federal district court pursuant to 20 U.S.C. Sec. 1415(e)(2) (1976), naming the school board, the State Board, and others as defendants.1
The Tatros contended that the school district violated the EAHCA by failing to provide Amber with a "free appropriate public education," id. Sec. 1412(1), which is defined in part as "special education and related services." Id. Sec. 1401(18). Specifically, they argued that CIC is a "related service" the state must provide to fulfill its duty to Amber under the EAHCA. The Tatros also argued that the school district's refusal to provide CIC violated section 504 of the Rehabilitation Act of 1973 which prohibits discrimination against the handicapped in federally funded programs. 29 U.S.C. Sec. 794 (Supp. V 1981).
The district court denied the Tatros' motion for a preliminary injunction to require the school board to provide CIC.
The Tatros appealed from the district court's order, and based upon facts that were assumed for purposes of the appeal, this court reversed. Tatro I,
I. The EAHCA Claim
Were we writing on a clean slate, we would share the district court's reluctance to read a statute designed to aid education to require provision of medical necessities of life which are required by a child whether or not she participates in the state's educational program. Nevertheless, Tatro I is the authoritative interpretation of the EAHCA in this circuit, and under "law of the case" principles, must be followed by us in this subsequent appeal "unless (1) the evidence on a subsequent trial was substantially different, (2) controlling authority has since made a contrary decision of the law applicable to such issues, or (3) the decision was clearly erroneous and would work a manifest injustice." White v. Murtha,
Although we perhaps would have taken a different view of the EAHCA upon de novo consideration, we cannot say that the well-documented Tatro I decision was not also a principled interpretation of that undeniably delphic statute. It is not clearly erroneous and certainly does not work manifest injustice. Further, neither the parties' briefs nor our own research has revealed any supervening authority.2 Thus, the only remaining issue under the EAHCA in this case is whether the evidence adduced on remand from Tatro I is so different from the assumed factual basis for that decision that its legal conclusions no longer apply. The school district argues that such is the case.
Tatro I did not hold that all life support services are "related services" under the EAHCA, nor that school districts must always provide CIC to children who need it. Derived from the statute and its regulations were three conditions that must obtain before a school board must provide services such as CIC:
First in order to be entitled to any related services at all, a child must be handicapped so as to require special education. 45 C.F.R. Sec. 121a.14 (1979) (comment one); see 20 U.S.C.A. Sec. 1401(1).... Second, the life support service must be necessary to aid a handicapped child to benefit from the special education to be provided. See id. Sec. 1401(17). Thus, a life support service would not be a related service if it did not have to be provided during school hours, but instead could be performed at some other time. Third, in order to be a related service, the life support service must be one which a nurse or other qualified person can perform. 45 C.F.R. Sec. 121a.13(b)(10) (1979). Excluded from the term "related services" are those health-related activities which must be performed by a licensed physician that are not provided "to determine a child's medically related handicapping condition which results in the child's need for special education and related services." Id. Sec. 121a.13(4). Thus, even under a literal interpretation of the statutory definition, the types of life support services needed by a child which can be related services are limited.
All parties agree that Amber is handicapped and in need of special education. The school district argues that the district court erred in finding the other two Tatro I conditions met in this case. It is argued first that under Texas law, CIC may not be performed by a nurse or other qualified person unless a physician is physically present to control and supervise the procedure. The argument concludes that such participation by a physician transforms CIC into "medical treatment" which the school district need not provide under Tatro I. Id. at 563; 20 U.S.C. Sec. 1401(17) (1976) (medical treatment is a related service only if provided for diagnostic and evaluation purposes). The district court, guided by its extensive experience in applying Texas law, and with the aid of able amicus curiae,3 rejected the school district's view of state law.
As the district court found, it has been long settled that physicians in Texas may prescribe treatment and delegate its administration to others. Thompson v. Texas State Board of Medical Examiners,
a person licensed to practice medicine shall have the authority to delegate to any qualified and properly trained person or persons acting under the physician's supervision any medical act which a reasonable and prudent physician would find is within the scope of sound medical judgment to delegate if, in the opinion of the delegating physician, the act can be properly and safely performed by the person to whom the medical act is delegated and the act is performed in its customary manner, not in violation of any other statute, and the person does not hold himself out to the public as being authorized to practice medicine. The delegating physician shall remain responsible for the medical acts of the person performing the delegated medical acts.
Tex.Rev.Civ.Stat.Ann. art. 4495b Sec. 3.06(d)(1) (Vernon Supp.1982-1983). The Texas Nursing Practice Act defines administration of treatments prescribed by a licensed physician as a "professional nursing act" and hence not unlawful practice of medicine. Id., art. 4518 Sec. 5. However, consistent with the district court's finding,
A person to whom a physician has delegated a medical act to perform is not guilty of practicing medicine without a license unless the person acts with knowledge that the delegation and action thereunder is a violation of this Act.
Tex.Rev.Civ.Stat.Ann. art. 4495b Sec. 3.07(i) (Vernon Supp.1982-1983).
The Medical Practice Act's requirement that a physician supervise those to whom he delegates a medical act has appeared in a number of prior statutes, and has been construed by the Texas Attorney General "not [to] require the constant physical presence of a physician to authorize the performance of professional nursing acts by one not otherwise licensed to perform them, so long as the responsible physician personally assumes control and supervision of the employee or instructs him in what is to be done, and remains reasonably available to see that the nursing acts are properly performed." Op.Tex.Atty.Gen. No. H-395 (Sept. 9, 1974). See also Op.Tex.Atty.Gen. No. H-1295 (Dec. 19, 1978) (nurses may administer treatment without direct supervision by doctor); Op.Tex.Atty.Gen. No. H-368 (Aug. 12, 1974) (physical therapy may be administered pursuant to doctor's directions without any requirement of constant physical presence of doctor); Op.Tex.Atty.Gen. No. H-27 (Apr. 12, 1973) (ambulance attendants not in physical presence of doctor may provide emergency care if in telephone communication with him).4
We think the prescription and instructions for CIC that the district court required the Tatros to provide to the school district fulfill the requirements of Texas law and allow school district employees legally to administer CIC to Amber.5 We have fully reproduced these documents in the margin to emphasize that a school district is entitled to require a detailed prescription and instructions tailored to the particular needs of each individual child for whom it is asked to provide health-related services under the EAHCA. It should not be required to exercise medical discretion. The prescription should make clear, as Amber's does, that the child is under the continuing care of the prescribing physician who will monitor the child's continuing need for the services and modify the prescription accordingly. Further, the prescription should identify the circumstances in which the school district personnel should seek further guidance from the physician. Since in this case the school district has been provided these assurances, we conclude that the requirement of Tatro I that CIC be a service that a nurse or other qualified person can perform is satisfied.
The school district's second argument is that CIC is not a related service in Amber's case because it is not "required to assist [her] to benefit from special education." 20 U.S.C. Sec. 1401(17) (1976); Tatro I,
The EAHCA defines "special education" as "specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions." 20 U.S.C. Sec. 1401(16) (1976). The school district contends that before Amber is entitled to CIC, she must allege and prove that she could not benefit from special education provided to her by the school district at home or in another institution where CIC is already being provided. If she could benefit from special education in these alternative placements, the argument goes, provision of CIC by the school district would not be required to fulfill the requirements of the EAHCA. We cannot agree that the Tatros must make such a showing in this case.
In its first case considering the EAHCA, the Supreme Court recently held that the statute provides a "basic floor of opportunity" consisting of personalized instruction and related services designed to enable handicapped children to benefit from education. Board of Education v. Rowley, --- U.S. ----, ----,
The EAHCA provides that each handicapped child's IEP will be jointly developed by the school officials, the child's teacher, his or her parents and, when appropriate, the child. 20 U.S.C. Sec. 1401(19) (1976). The IEP is the educational blueprint that specifies how the child is to be taught, sets goals and determines how progress is to be measured. Id.; see Helms v. McDaniel,
Amber's IEP explicitly calls for her placement in the school district's ECD classes. See Plaintiffs' Proposed Stipulation of Facts, exhibit A. The IEP states that its justification for characterizing this setting as the most appropriate as well as the least restrictive is that "[t]esting indicates the need for [Early Childhood] placement." Id. Moreover, the "instructional/learning strategies" established by Amber's IEP include provision for a "structured atmosphere," immediate feedback and "small group instruction," id., all of which are consistent with ECD placement.
We are convinced that the central role of the IEP in the educational scheme contemplated by the EAHCA and in the standard of review developed in Rowley gives rise to a presumption in favor of the educational placement established by Amber's IEP. Moreover, because the IEP is jointly developed by the school district and the parents, fairness requires that the party attacking its terms should bear the burden of showing why the educational setting established by the IEP is not appropriate. Since the school district has not even attempted to do so, its argument must be rejected and we need not reach the thorny issue of what circumstances might call for judicial modification of an IEP. See Rowley,
II. The Section 504 Claim and Attorneys' Fees
The EAHCA does not provide for attorneys' fees awards. The district court awarded attorneys' fees to the Tatros under section 505 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. Sec. 794a(b) (Supp.V 1981), which authorizes such awards to prevailing parties in actions to enforce provisions of the Rehabilitation Act. 29 U.S.C. Sec. 701 et seq. (1976). Tatro I had held that section 504 of that Act imposed an obligation on the school district to provide CIC to Amber.
In Pennhurst, the Supreme Court was asked to decide whether section 6010 of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. Sec. 6010, conferred enforceable substantive rights on the beneficiaries of the Act. In deciding that it did not, the Court referred to Southeastern Community College v. Davis,
to recognize the well-settled distinction between Congressional "encouragement" of state programs and the imposition of binding obligations on the States.... Relying on that distinction, this Court in Southeastern Community College v. Davis,
Although Pennhurst reinforced the district court's doubts that section 504 requires provision of CIC, the court concluded that the Supreme Court had not spoken with sufficient clarity to allow it to depart from prior decisions of this court squarely on point.
As we have seen, a prior decision does not bind us as law of the case if it is supervened by controlling authority. White v. Murtha, supra. Similarly, the general rule that one panel of our court does not overrule another panel does not prevent us from overriding a prior decision "based entirely on [a] theory" subsequently rejected by the Supreme Court. Hanson v. Town of Flower Mound,
We do not suggest that the line between a lawful refusal to extend affirmative action and illegal discrimination against handicapped persons always will be clear. It is possible to envision situations where an insistence on continuing past requirements and practices might arbitrarily deprive genuinely qualified handicapped persons of the opportunity to participate in a covered program. Technological advances can be expected to enhance opportunities to rehabilitate the handicapped or otherwise to qualify them for some useful employment. Such advances also may enable attainment of these goals without imposing undue financial and administrative burdens upon a State. Thus, situations may arise where a refusal to modify an existing program might become unreasonable and discriminatory. Identification of those instances where a refusal to accommodate the needs of a disabled person amounts to discrimination against the handicapped continues to be an important responsibility of HEW.
Davis,
Although Pennhurst undoubtedly emphasized the component of the Davis decision that disapproved judicial recognition of affirmative obligations under section 504, it did not overrule the portion of Davis relied upon in our earlier decisions. Pennhurst therefore forms an insufficient basis upon which to justify a departure from prior law by this panel.
The school board's additional objections to its liability under section 504 are groundless and merit little discussion. The district court found that given our prior decision that refusal to provide CIC is discriminatory under section 504, Amber had been thereby excluded from a "program of activity receiving federal financial assistance." 29 U.S.C. Sec. 794 (Supp.V 1981);
The district court enjoined the school board and the State Board to "modify the Individual Education Program of Amber Tatro to include the provision" of CIC. Upon the motion of the school district, the court's original judgment was amended to hold the State Board jointly and severally liable with the school board for attorneys' fees. The State Board argues that it should not have been included in the injunction and that it is not liable for attorneys' fees.
The EAHCA places primary responsibility for development and revision of IEP's upon local school boards. 20 U.S.C. Sec. 1414(a)(5) (1976). The state educational agency, here the State Board, is given supervisory responsibility to assure that local agencies carry out their responsibilities. 20 U.S.C. Sec. 1412(6) (1976). The State Board argues that the district court erred in ordering it to modify Amber's IEP because the EAHCA places that duty on the local school board. The State Board's argument is based on an unduly scholastic reading of the district court's judgment. Although the words of the judgment standing alone perhaps suggest that the State Board should itself engage in the revision of Amber's IEP, the district court's opinion makes clear that the State Board has only been enjoined to act in the supervisory capacity required of it by the EAHCA.
The State Board's second argument is that even if it was properly enjoined under the EAHCA, the district court did not make a specific finding that it had violated section 504 and that it was therefore improper for the district court to hold it liable for attorneys' fees under the Rehabilitation Act. We have held already that under Tatro I the district court properly held that by refusing to provide CIC, the school board denied Amber the benefits of a federally assisted program or activity in violation of section 504. The record established that after the school board's decision not to provide CIC was reversed by an independent hearing officer and the state Commissioner of Education, the State Board acted to reinstate the school board's original decision. See Plaintiffs' Exhibit 5a and attachments (Order of the State Board of Education, Sept. 8, 1979). That action, which the State Board does not deny that it took, had the effect of denying the benefits of a federally funded program to Amber Tatro just as the school board's action had. For the same reasons, the State Board's action violated section 504 and supported an award of attorneys' fees under section 505.10
For the reasons we have stated, the judgment of the district court is in all respects
AFFIRMED.
Notes
All defendants save the school board and the State Board were dismissed by the district court,
The school district argues that after Pennhurst State School & Hospital v. Halderman,
The joint brief of the Texas Medical Association and the Dallas County Medical Society as amicus curiae is reprinted as an appendix to the district court's opinion on remand.
These interpretations remain good law under the Medical Practice Act:
No substantive changes in prior law or interpretation of prior law have been intended unless expressly done so in this Act. Consistent with this intention, unless expressly provided otherwise in this Act, any previous judicial opinion, attorney general's opinion, board practice, or interpretation is not to be considered modified or declared inapplicable.
Medical Practice Act of 1981, 67th Leg., 1st C.S., ch. 1, Sec. 6(c).
The school district also was provided with the Tatros' written consent to its provision of CIC to Amber. Amber's doctor's prescription was in letter form as follows:
Mr. John Townley
Irving Independent School District
O'Connor Rd
Irving, Texas
Re: C.I.C. instructions for
Amber Tatro--Prescription
Dear Sir:
Amber Tatro has been placed on a schedule of Clean Intermittent Catheterization every three to four hours during the waking day. Amber is to be catheterized at the times listed:
6:30 A.M. 3:30 P.M.
9:30 A.M. 6:30 P.M.
12:30 P.M. 9:30 P.M.
If Amber's diaper is wet at the time for the scheduled catheterization, this should be reported to me or Dr. George Hurt at the Spina Bifida Clinic at The Scottish Rite Hospital as the above schedule may need to be modified.
A qualified school nurse or other qualified person can perform C.I.C. and attached to these instructions are the Scottish Rite Hospital instructions for catheterization of a female which are to be followed.
A # 10 or # 12 catheter should be used to start out.
The above schedule for catheterization and size of catheter may be altered upon the direction of myself or Dr. Hurt from time to time according to Amber's needs.
If there are any questions, I or Dr. Hurt may be reached through the Spina Bifida Clinic at Scottish Rite Hospital.
[The doctor's signature, as experience has taught us to expect, was illegible. The record reveals that Dr. Goldstein signed.]
Name
3/17/81
Date
Attached to the prescription were detailed instructions for administration of CIC:
TEXAS SCOTTISH RITE HOSPITAL FOR CRIPPLED CHILDREN
INSTRUCTIONS FOR PARENTS ONCATHETERIZATION OF FEMALE
Purpose:
To completely empty the bladder at scheduled intervals in order to decrease the incidence of urinary tract infection.
Urine that stays stagnant in the bladder is more likely to become infected. A bladder that stays full becomes enlarged and thickened.
Scheduled emptying of the bladder allows the patient to become familiar with the difference in the sensation of a full bladder and an empty bladder.
Equipment Needed:
Clean catheter, metal or rubber. (Metal is best since it can be boiled repeatedly without deterioration.)
Soap and water.
Dish to catch the urine, for example, a re-usable jar.
Large underpad, to prevent soaking bed linens.
General Instructions:
Wash hands with soap and water
Get all of the equipment ready
Get child ready. (If possible, put at table height since it is easier to do this procedure at this height.) Place child on her back
Spread labia apart with one hand and wash genitalia with soap and water with the other hand, always moving in a downward direction. (Never wash in an upward direction since this will move germs from around the rectum up into the area of the bladder opening.)
Insert catheter in urethra and let all urine drain out of the bladder. This may take longer than you think, so do not remove catheter until the urine has stopped draining
If you are unable to catheterize, contact your local Public Health Nurse or call Texas Scottish Rite Hospital
Discard urine
Clean catheter. Clean with soap and warm water after each use. Allow to dry and place in a clean, dry envelope
At least once a day after the catheter has been washed with soap and water, place it in a pot of water and boil for 20 minutes. Allow the catheter to air dry and place it in a clean dry envelope.
We do not place an undue burden on the school district; the IEP is not etched in stone. The EAHCA and its attendant regulations provide for periodic review and modification of IEP's by school authorities and parents. 20 U.S.C. Secs. 1412(4), 1414(a)(5) (1976); 34 C.F.R. Sec. 300.343(d) (1982)
The school district also asserted in its reply brief that ECD classes are for handicapped students only. The court in Tatro I apparently assumed that ECD classes also included non-handicapped children because it rested its decision in part upon its conviction that Amber's exclusion from ECD classes would violate the "mainstreaming" mandate of the EAHCA.
As the district court correctly observed, the question whether Section 504 imposes affirmative obligations on the states is logically antecedent to the question of whether such obligations are enforceable by an implied right of action.
See Tatro v. Texas, No. CA-3-79-1281-G (N.D.Tex. Sept. 8, 1981) (unpublished memorandum opinion) in which after entry of the judgment below, the district court afforded the school board an opportunity to reopen the record to rebut the school superintendent's concession that the school district received federal assistance for programs from which Amber had been excluded. The record reveals no attempt by the school district to do so
The district court found that an attorneys' fees award against the State Board was not barred by the Eleventh Amendment. Tatro v. Texas, No. CA-3-79-1281-G (N.D.Tex. Sept. 8, 1981) (unpublished memorandum opinion). The State Board has not appealed that decision; however it has suggested that its action reversing the decisions of the hearing officer and Commissioner of Education was taken in its judicial capacity and is entitled to immunity on that basis. We need not decide whether judicial immunity might bar attorneys' fees awards under Sec. 505, see Supreme Court of Virginia v. Consumers Union,