Decision Date28 January 1982
Docket NumberCiv. No. 80-0582.
Citation531 F. Supp. 517
PartiesDEPARTMENT OF EDUCATION, STATE OF HAWAII, Plaintiff, v. KATHERINE D., a minor by and through her natural parents and legal guardians, Kevin and Roberta D., Defendants, Counter-claimants, and Department of Education, State of Hawaii, Counterclaim-Defendant.
CourtU.S. District Court — District of Hawaii


Charleen M. Aina, and Russell Kato, Deputy Attys. Gen., Honolulu, Hawaii, for plaintiff.

Karen D'Agusto, Protection and Advocacy Agency, Inc. Honolulu, Hawaii, Stanley E. Levin, Paul D. Alston, Honolulu, Hawaii, for defendants, counter-claimants.


CLAIBORNE, Chief Judge.

This is an action by the Department of Education of the State of Hawaii for judicial review of an administrative hearing officer's decision rendered pursuant to Section 615 of the Education for All Handicapped Children Act of 1975 (hereinafter "EAHCA"), 20 U.S.C. § 1415. The jurisdiction of this Court is invoked under 20 U.S.C. § 1415(e)(2) and 45 C.F.R. § 121a.511. Jurisdiction of this Court over the action as initially brought by the Plaintiff DOE is not disputed.

The Defendants have brought a counterclaim against the DOE. They allege that this Court has jurisdiction over the counterclaim under 28 U.S.C. §§ 1331 and 1343, and 20 U.S.C. § 1415(e). Jurisdiction as to the counterclaim is disputed.

The standard of review by the District Court in a P.L. 91-142 (20 U.S.C. § 1415(e)(2)) case, is as follows: "the court shall receive the records of the administrative proceedings, shall hear additional evidence at the request of a party, and, basing its decision on the preponderance of the evidence, shall grant such relief as the court determines is appropriate." It therefore appears the Court has authority to formulate the relief it deems appropriate.

Katherine D. is a four-year-old handicapped child who has been found eligible for special education services under the Education for All Handicapped Children Act (20 U.S.C. § 1401 et seq.). Her identified handicapping condition is that she is "other health impaired," as defined in 45 C.F.R. § 121a.5. She suffers from cystic fibrosis. In late January, 1981, it was determined, by a diagnostic examination, that Katherine D. has tracheomalacia which means that the walls of her windpipe are floppy and not rigid.

Since 1978, Katherine has had a tracheostomy and worn a tracheotomy tube. Until February, 1981, the tracheotomy tube was held in place by surgical strings which were threaded through a plastic tube which she wore around her neck as a collar necklace. Since that time, the tracheotomy tube has been held in the tracheostomy by means of a 14 karat gold chain approximately ¼ to ½ inch in diameter. The tracheostomy and tracheotomy tube allow Katherine to breathe and expel secretion from her lungs.

Since Katherine has had her tracheostomy, there have been four instances in which Katherine's tracheotomy tube either was dislodged or was in danger of being dislodged. In 1978, her tracheotomy tube had to be inserted in two other instances while Katherine was hospitalized at Kapiolani-Children's Hospital. In one instance which occurred in 1978 while Dr. Arlene Meyers, her then attending physician was trying to change the size of Katherine's tracheotomy tube, Dr. Meyers encountered difficulties reinserting the tube, and Katherine was within a couple of minutes of dying. Present in the room were Katherine's parents, a respiratory therapist, a pulmonary fellow, a nurse, and Dr. Meyers. The room in which the procedure took place contained all the equipment needed for the procedure.

Katherine is unable to vocalize normally, due to two conditions. First, her windpipe is not rigid enough to maintain its diameter and allow sufficient air to pass from her lungs through her vocal chords. The condition of her windpipe is attributable to tracheomalacia. Second, because the tracheostomy is located below her vocal chords, most of the air exhaled from the lungs leaves through the tracheostomy before it passes her vocal chords. Since February, 1981, however, Katherine has been able to speak audibly, although very softly. This would indicate that more air is capable of passing through the length of her windpipe more readily than before.

The cystic fibrosis causes thick mucus to accumulate in her lungs and makes her susceptible to recurrent pulmonary infections. Because Katherine is not always able to cough this mucus out herself, it is necessary for it to be suctioned out two or three times a day, through her tracheotomy tube. The cystic fibrosis also causes her to be unable to absorb food normally because she lacks the necessary pancreatic enzymes as a result of that disorder. To facilitate food absorption and to ensure proper nutrition, Katherine must have a special diet, and take pancreatic enzymes and vitamins before every meal.

The only condition adversely affecting Katherine's educational performance is her speech difficulty. During the school year 1980-81, but for the potential danger to Katherine in the event that her tracheotomy tube was dislodged, Katherine could have been educated in a regular classroom and received itinerant speech therapy.

During the school year 1980-81, Katherine attended St. Philomena's Child Care Center, a parochial child care facility and kindergarten operated under the auspices of St. Philomena's Catholic Church, and licensed by the Department of Social Services and Housing and the DOE, respectively. She received the same preschool program as is offered to all children attending her class. She received charitable speech therapy at home through the California-Hawaii Elks Major Project since December, 1979. She continues to receive this speech therapy presently. During the 1980-81 academic year, Katherine D. did well, academically and socially, at St. Philomena's.

Katherine began attending St. Philomena's as a student in the summer of 1979. Roberta D., Katherine's mother, is employed as a teacher at St. Philomena's; her employment has been concurrent with Katherine's attendance. While Katherine is in attendance at St. Philomena's, her mother administers her medication and does any suctioning which might be necessary during the school day. No person other than her mother is responsible to reinsert Katherine's tracheotomy tube should it become dislodged while she is at school. Katherine D. qualifies for enrollment in St. Philomena's kindergarten class for the school year 1981-82, but that enrollment is contingent upon her mother remaining on the school's staff.

Katherine's tuition at St. Philomena's for the school year 1980-81 amounted to $1,200 or $120 per month during the academic year. In addition, Katherine's family incurred miscellaneous school expenses (for books and registration and related matters) of $135. For 1981-82, the tuition is $650 and the related costs are estimated at $130. Katherine's parents wish to have Katherine educated in a regular education class in a public school, with itinerant special education speech and language services provided as well. They will, however, only allow Katherine to attend public school if a trained person or persons is available at school to respond to her health needs, i.e., to suction excess mucus from her lungs, if necessary; to administer medication before she eats lunch; and to reinsert her tracheotomy tube should it become dislodged. An air-conditioned vehicle is not necessary for transporting Katherine to and from school.

In the opinion of Katherine D.'s treating physicians, the emergency care available to Katherine from her mother while both of them are at St. Philomena's was and is adequate for Katherine's safety. When Katherine is at St. Philomena's, her mother is on the campus, usually in another classroom. They are within two minutes apart throughout the school day. The training that Mrs. D. has had to enable her to handle Katherine's medical emergencies was provided to her by the staff at Kapiolani-Children's Hospital, while Katherine D. was a patient there recovering from her tracheotomy operation.

In order for Katherine to develop her speech and vocabulary normally, she needs to socialize with other children. Isolation in a homebound program of instruction would hamper Katherine's social and educational development. Participation in a school program helps Katherine to benefit from her speech therapy. On May 13, 1980, Mr. and Mrs. Dorr requested a comprehensive evaluation for Katherine to determine if she was eligible for educational programs in public schools. At that time, Mrs. Dorr explained to the Department of Education that Katherine had a tracheostomy and requires someone who is trained to replace the tube should it become dislodged at all times.

In the summer of 1980, the DOE conducted a comprehensive evaluation on Katherine. This evaluation was required by the Education for All Handicapped Children's Act, 20 U.S.C. § 1412(5)(C). In August, 1980, the DOE agreed that Katherine was entitled to special education and related services. Shortly thereafter, the DOE offered an individualized educational program (hereinafter "IEP") to Katherine. Initially, the DOE offered an educational placement at Jefferson Orthopedic School, but subsequently withdrew the offer. The DOE then offered Katherine a homebound program consisting of 1½ (one and one-half) hours of speech therapy and 40 (forty) minutes of parent counseling per week.

The DOE's initial offer for placement at Jefferson Orthopedic School was withdrawn on the basis of a recommendation made to the DOE by Allan Oglesby, M.D., then the Administrator of the Family Health Division, Department of Education, State of Hawaii, and responsible for the School Health Program Branch which provides health services for the DOE's regular and special education programs. In his opinion, the facilities, procedures and personnel available in any of the public schools could not provide the kind of...

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