Ap ex rel. Peterson v. Anoka-Hennepin Sch. No. 11, No. 06-CV-2342 (PJS/RLE).

Citation538 F.Supp.2d 1125
Decision Date17 March 2008
Docket NumberNo. 06-CV-2342 (PJS/RLE).
PartiesAP, by his parents and legal guardians Dave and Julia PETERSON, Plaintiff, v. ANOKA-HENNEPIN INDEPENDENT SCHOOL DISTRICT NO. 11, Defendant.
CourtU.S. District Court — District of Minnesota
538 F.Supp.2d 1125
AP, by his parents and legal guardians Dave and Julia PETERSON, Plaintiff,
No. 06-CV-2342 (PJS/RLE).
United States District Court, D. Minnesota.
March 17, 2008.

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Justin M. Page and Barnett Rosenfield, Minnesota Disability Law Center, for plaintiff.

Lawrence J. Hayes, Jr. and Stephen M. Knutson, Knutson, Flynn & Deans, P.A., for defendant.


PATRICK J. SCHILTZ, District Judge.

The parents of plaintiff AP, a diabetic boy, sought to enroll him in a day-care program called "Adventures Plus" operated by defendant Anoka-Hennepin Independent School District No. 11 ("District 11"). AP's parents asked District 11 for various accommodations related to AP's diabetes. AP's parents were dissatisfied with District 11's response and, consequently, AP never attended Adventures Plus. AP contends that District 11 discriminated against him based on his disability by refusing to grant the requested accommodations, and AP now seeks compensatory damages for that refusal. AP brings claims under Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, the Rehabilitation Act, 29 U.S.C. § 794 (known as "§ 504" of the Act), and the Minnesota Human Rights Act ("MHRA"), Minn.Stat. 363A.12 subd. 1.

District 11 moves for summary judgment on all of AP's claims. For the reasons described below, the Court denies District 11's motion in all respects, except insofar as it relates to AP's claim that District 11 acted unlawfully in refusing to train and authorize Adventures Plus personnel to provide glucagon injections. That claim is dismissed with prejudice.


AP was diagnosed with Type I diabetes in March 2002, when he was three years old. Hayes Aff. (First) Ex. 2 ("JP Dep.") at 10-12 [Docket No. 48]; Hayes Aff. (First) Ex. 6 at 1. Those who suffer from Type I diabetes require a regular external supply of insulin, a hormone that the body needs to process glucose (i.e., sugar).2 Insulin

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reduces blood-sugar levels by enabling the body to remove glucose from the blood for use or for storage in the liver as glycogen.

Too much insulin, or not enough sugar intake, leads to hypoglycemia (i.e., low blood sugar). Severe hypoglycemia can be very dangerous and can require an emergency injection of glucagon. Glucagon is a hormone that, when injected, raises blood sugar by, among other things, causing the liver to convert stored glycogen into glucose that is released into the bloodstream.3 Too little insulin, or too much sugar intake, leads to hyperglycemia (i.e., high blood sugar). Severe hyperglycemia can lead to a dangerous condition called ketoacidosis. Moderate hyperglycemia is not dangerous in the short term but can have serious long-term consequences if it occurs regularly. Type I diabetics must regularly monitor their blood-glucose levels to calibrate how much insulin to take and to ensure that their blood sugar gets neither too low nor too high.

When AP was three and four years old, his parents administered insulin to him by way of injections. JP Dep. at 13. But in early 2005, after his fifth birthday, AP was fitted with an insulin pump. Id. An insulin pump is attached to a needle that remains constantly inserted in the patient (the needle is periodically moved to different locations).4 See id. at 14. The pump is an electronic device worn by the patient that can be programmed to dispense finely calibrated doses of insulin on a regular schedule as well as on demand (generally before and after eating). To calculate the appropriate dose of insulin, a patient checks his blood sugar by pricking his finger, placing a drop of blood on a test strip, and inserting the strip into an electronic blood-glucose meter. Based on the patient's blood-sugar level and his anticipated sugar intake, the patient programs the pump to dispense a dose or "bolus" of insulin.

In the spring of 2005, AP's parents sought to enroll him for the coming summer in Adventures Plus, a day-care program operated by District 11. Page Aff. Ex. 3 ("JP Aff.") ¶ 8 [Docket No. 54]; JP Dep. at 49-51. AP's mother, JP, contacted Adventures Plus about enrolling AP and met with Chris Orr, who was then the special-needs coordinator for Adventures Plus. JP Dep. at 49-51. JP told Adventures Plus staff that because of AP's diabetes, the program's staff would need to be trained to check his blood sugar with the blood-glucose meter, to work his insulin pump, and to administer injections of glucagon to AP if he suffered severe hypoglycemia. JP Aff. ¶ 8; JP Dep. at 50-51.

Adventures Plus refused to grant the requested accommodations. JP Aff. ¶¶ 9-10; JP Dep. at 52-53. AP's parents therefore

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did not enroll him in the program in the summer of 2005. Instead, they enrolled him in a private day-care center that agreed to provide the requested accommodations (as did day-care centers AP attended both before and after the summer of 2005). JP Dep. at 17, 20-23, 26-27, 52; JP Aff. ¶¶ 5-6, 31. AP's parents also engaged their current counsel and contacted a school-board member about District 11's refusal to grant their requested accommodations. JP Aff. 514; ¶ Dep. 46-49, 70-72.

For the 2005 school year, AP's parents planned to enroll AP in Adventures Plus for before- and after-school care and, during the school day, in a District 11-operated school called the Peter Enich Kindergarten Center. JP Dep. at 41-42. As the start of the school year approached, AP's parents continued to communicate with District 11 about how it would accommodate AP in both Peter Enich and Adventures Plus. In early August, a paralegal working with AP's current counsel wrote to District 11 on behalf of AP and his parents and asked the district to put into writing exactly what it would and would not do to accommodate AP's diabetes. Hayes Aff. (Second) Ex. B [Docket No. 59].

In response, Susan Butler, District 11's Director of Special Education, wrote a letter on August 18, 2005 setting forth the district's proposed accommodations with respect to both Peter Enich and Adventures Plus. Hayes Aff. (First) Ex. 13;5 Hayes Aff. (First) Ex. 14 ("Butler Dep.") at 11-12. Butler did not actually have supervisory authority over the Adventures Plus program, and she did not speak directly with the people who did. Butler Dep. at 7-9, 12-13. In formulating the Adventures Plus accommodations, Butler relied on the advice of Cindy Hiltz, District 11's Health Services Coordinator. Butler Dep. at 12-13. Hiltz, like Butler; had no supervisory authority over Adventures Plus, but Hiltz consulted with Adventures Plus about medical issues. Hayes Aff. (First) Ex. 12 ("Hiltz Dep.") at 9.

With respect to Adventures Plus, Butler wrote in her August 18 letter that program staff would not administer glucagon, Hayes Aff. (First) Ex. 13 at 2, but Butler was not clear about exactly what program staff would do with respect to AP's blood-glucose meter and his insulin pump. Butler wrote that Adventures Plus staff would "[r]eceive and maintain the private medical provider orders regarding monitoring the insulin pump and [AP]'s blood[-glucose] level." Id.6 Butler also wrote that staff would receive training from someone designated by AP's parents and would "[m]onitor [AP]'s blood[-glucose] levels" in accordance with that training. Id. According to Butler, this language meant that staff would supervise AP's use of his blood-glucose meter and his insulin pump but would not operate either apparatus. Butler Dep. at 13-15. Hiltz likewise testified that the "monitoring" promised in the letter was supervision of AP rather than operation by staff of his insulin pump or blood-glucose meter. Hiltz Dep. at 31.7

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In late August or early September, about a week before school was scheduled to begin, AP's parents met with personnel from District 11, Peter Enich, and Adventures Plus, including Hiltz and Tiffany Weeks, who had replaced Orr in July 2005 as the special-needs coordinator at Adventures Plus. JP Aff. ¶ 17; Hayes Aff. Ex. 10 ("Weeks Dep.") at 48-49; Hiltz Dep. at 27; Hayes Aff. Ex. 7 ("DP Dep.") at 17. AP's parents discussed with Hiltz and Weeks what accommodations AP would receive at Adventures Plus and offered to sign a liability waiver with respect to glucagon injections. DP Dep. at 44. Weeks and Hiltz told AP's parents that Adventures Plus staff would not administer glucagon to AP and would not operate his blood-glucose meter or his insulin pump. JP Aff. ¶ 17; DP Dep. at 16-17; JP Dep. at 135-36.8

Soon thereafter, AP's parents canceled his enrollment in Adventures Plus. Hayes Aff. (Second) Ex. D. AP did, however, attend kindergarten at Peter Enich for the entire 2005-2006 school year. AP brings no claims against District 11 with respect to his enrollment at Peter Enich.9

In mid-September 2005, AP's parents prepared a one-page memo titled "What we want from Adventures Plus program" and provided it to their counsel. Hayes Aff. (Second) Ex. C; JP Dep. at 108-09. JP testified that she believed that her counsel then forwarded the memo to District 11, see JP Dep. at 109, but no evidence in the record supports her belief. That said, the memo nonetheless provides indirect evidence of what AP's parents asked of District 11 and what District 11 agreed to provide. (The fact that an accommodation is listed in the memo increases the likelihood — but does not make it certain — that, before the memo was written, AP's parents asked for the accommodation and District 11 refused to provide it.)

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With respect to blood-glucose testing, the memo says that although AP "is able to check his own blood sugar most of the time," AP's parents "want 2-3 people trained on how to check his blood sugar and ... able to check it" in case AP experiences hypoglycemia and does not...

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