Day v. Cedar Rapids Cmty. Sch. Dist.
| Decision Date | 05 May 2020 |
| Docket Number | No. C19-137-LTS,C19-137-LTS |
| Court | U.S. District Court — Northern District of Iowa |
| Parties | TABITHA DAY, Mother of minor child, E.D., Plaintiff, v. CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT, et al., Defendants. |
ORDER ON DEFENDANTS' MOTION TO DISMISS
This case is before me on a motion (Doc. No. 7) to dismiss by defendants Cedar Rapids Community School District (District), Grant Wood Area Education Agency (AEA), Sandra Byard and Cindy Fagan. Plaintiff Tabitha Day, mother of minor child, E.D., has not filed a response and the time for doing so has expired. I find that oral argument is not necessary. See Local Rule 7(c).
Day has filed a claim pursuant to 42 U.S.C. § 1983, along with claims alleging violations of the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act of 1973, Titles VI and VII of the Civil Rights Act of 1964; Title IX of the Education Amendments of 1972; the Patient Protection and Affordable Care Act; and the Individuals with Disabilities Education Act (IDEA). See Doc. No. 5, 5-1. She claims E.D. was denied access to public school because her attendance was prohibited and restricted due to her disability. See Doc. No. 5 at 3. Defendants note that Day pursued similar claims in an administrative due process complaint filed against the District and the AEA pursuant to the IDEA, 20 U.S.C. § 1400 et seq. They argue that because Day explicitly references the administrative decision addressing that complaint, the decision is embraced by the pleadings and I may consider it in ruling on the motion to dismiss. See Doc. No. 7-2 at 3. I agree. See Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012). As such, I will start with a discussion of that decision as it provides helpful background to Day's complaint.
E.D. suffers from a variety of serious medical issues, including Lennox-Gastaut Syndrome (an intractable form of epilepsy), asthma, impaired mobility and developmental delays. She is prone to having absence, cluster, and tonic-clonic (grand mal) seizures. See Doc. No. 7-1 at 2. She has had an Individualized Education Program (IEP) since she began attending school in the District and the plan was unchanged from May 2010 through the end of the 2017-2018 school year. E.D.'s neurologist determined that medical intervention for E.D.'s seizures is required only when her seizures last 10 minutes. He prescribed a "rescue medication" known as Diastat. Id. at 3. School staff administered Diastat to E.D. on three occasions during each of the 2014-2015, 2015-2016 and 2016-2017 school years. They administered it once in the 2017-2018 school year and once in 2018-2019 school year. On each of the 11 occasions in which they administered Diastat, E.D. returned to class without incident. Id.
Since May 2010, E.D.'s Individual Health Plan (IHP) has provided a protocol for dealing with her seizures while in school. The IHP incorporated an Emergency Protocol for seizures that required health staff to respond to E.D.'s classroom at the first sign of a seizure. Staff would then use a magnet to activate E.D.'s VNS1 device and could repeat the procedure every minute for five minutes if necessary. If the seizure lasted more than five minutes, staff administered Diastat. If the seizure continued more than five minutes after administering Diastat, staff would call 911. Id.
Upon learning that the District had varying protocols with regard to whether achild stayed at school or was sent home following the administration of Diastat, the District's Health Services Facilitator2 held a meeting with all school nurses. The nurses reviewed medical literature and other districts' practices. The medical literature discussed the possibility of respiratory depression following administration of Diastat in children. The consistent practice in other districts was to send children home after the administration of Diastat. The nurses agreed that after administering Diastat, children should be sent home and adopted this as the new policy or protocol. Id.
E.D.'s Emergency Seizure Protocol and IHP were amended in August 2018 to reflect the new protocol. Her IEP refers to the IHP and Emergency Protocol in three instances. It states that her health needs will be "addressed in the Health Plan as a part of the student's health records," refers to the "IHP/Emergency Protocol" following a discussion of the protocol for responding to her seizures, and in listing her health services, states "see IHP for details." Id. at 5.
E.D. moved to a new school for the 2018-2019 school year. The school nurse3 was in charge of drafting a new health plan and attempted to contact Day prior to the start of school. She was unable to reach her by phone but spoke to her in person at an open house the day before the start of school. They discussed responses to E.D.'s seizures, including Diastat, and the nurse informed Day about the policy change to send students home after administering Diastat. Day disagreed with the policy. The nurse attempted to contact E.D.'s physician for input but did not receive a response until October. The nurse sent a copy of the new IHP and Emergency Protocol, which contained the new Diastat policy, home with E.D. after school started.
Day responded by crossing out language in the Emergency Protocol and addinghandwritten notes and suggestions in other parts and gave the document back to the school nurse. She did not sign the document and noted that the new policy was added after eight years of not being required, was "not protocol" and had "nothing to do with her safety." Id. at 6. She also spoke to E.D.'s teacher, the principal and school nurse.
On the third day of the school year, E.D. suffered a seizure requiring the administration of Diastat. Pursuant to the policy, the school called Day and sent E.D. home. Day kept E.D. home from school the remainder of the school year claiming that she was concerned the school nurse would disregard the guidance of E.D.'s physician and that E.D. had been experiencing increased seizures requiring Diastat a couple times per week. Id. at 6-7.
The school scheduled an IEP team meeting for September 10, 2018, between the school nurse, the school principal, E.D.'s special education teacher and Day. Day explained that E.D. had been experiencing increased seizures. District personnel encouraged her to let E.D. return to school. They offered to re-evaluate the situation and discuss alternative arrangements if E.D.'s need for Diastat at school had, in fact, increased. The meeting did not result in an agreement between Day and the District. Day kept E.D. out of school and filed a due process complaint.
Day argued that nursing services, as embodied in the IHP, are "related services" subject to regulations that provide certain procedural protections for changing an IEP, such as parental input. Second, she argued that E.D. was denied a free appropriate public education (FAPE) because the District's new Diastat policy was not individualized to meet E.D.'s needs and was not evidence-based. Id. at 10. Following a hearing, the administrative law judge (ALJ) found in favor of the District on both grounds. With regard to whether nursing services are related services, the ALJ stated:
[I]t cannot be said that the Complainant's right to parental participation was impeded, that the child's right to FAPE was denied, or that there was a deprivation of any educational benefit by virtue of the processes undertaken. The school nurse, through a protocol proposed by the District's Health Services Facilitator, drafted the child's IHP in a manner with which themother disagreed. The nurse sought and received input from the parent about the offending portion of the IHP. Iowa regulations envision and authorize such a change in a student's IHP. There was no requirement that an IEP team be convened and pass on a modification to an IHP that is later integrated into the IEP. However, after the mother's concerns were heard, an IEP team meeting was promptly held on September 10 to discuss the Diastat protocol. The disagreement remained, and the mother chose to contest the matter through a Due Process complaint, as was her right.
Id. at 14-15. With regard to her second argument, the ALJ found that at the time the IHP and Emergency Protocol were integrated into the IEP, the IEP was "objectively reasonable and would have served fully to provide for the child's educational needs and her health needs." Id. at 18. He noted the decision was based on a justifiable reading of medical literature and authoritative guidance from knowledgeable and relevant groups as well as E.D.'s historical need for Diastat while at school. Id. at 18. While new information later surfaced from E.D.'s physician and another physician expert, as well as information from Day concerning the frequency of E.D.'s seizures requiring Diastat during the 2018-2019 school year, the ALJ reasoned the District did not have access to that information that could have informed its decision. Id. at 18. The ALJ concluded that none of E.D.'s absences from school during the 2018-2019 school year could be attributed to the District or the school and it did not deny E.D. a FAPE. Id. at 18-19. He did, however, recommend that based on the new information presented at the hearing, the District convene an IEP meeting and reassess the protocol's specific application to E.D. Id.
The ALJ issued his decision on September 13, 2019. Doc. No. 7-1 at 20. Day filed her motion for leave to proceed in forma pauperis and complaint in this court on December 13, 2019. She submitted a supplement to her complaint on January 15, 2020. See Doc. Nos. 3. She alleges the following facts in support of her claim:
Cindy Fagan the part time nurse new to the district changed [E.D.]'s IEP by changing her IHP that is included within her IEP and uploaded to IDEA as an associated file. Without the IHP her IEP is not sufficient in addressing her...
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