E.I.H. v. Fair Lawn Board of Education, 090518 FED3, 17-2596

Docket Nº:17-2596
Opinion Judge:VANASKIE, CIRCUIT JUDGE.
Party Name:E.I.H.; R.H., Individually and on behalf of L.H., Appellants v. FAIR LAWN BOARD OF EDUCATION
Judge Panel:Before: CHAGARES, VANASKIE, Circuit Judges, and BOLTON, District Judge.
Case Date:September 05, 2018
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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E.I.H.; R.H., Individually and on behalf of L.H., Appellants

v.

FAIR LAWN BOARD OF EDUCATION

No. 17-2596

United States Court of Appeals, Third Circuit

September 5, 2018

NOT PRECEDENTIAL

Submitted Under Third Circuit L. A.R. 34.1(a) April 12, 2018

On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 2-15-cv-08658) District Judge: Hon. Katharine S. Hayden

Before: CHAGARES, VANASKIE, Circuit Judges, and BOLTON, District Judge. [*]

OPINION [**]

VANASKIE, CIRCUIT JUDGE.

E.I.H. and R.H., individually and on behalf of their autistic daughter, L.H., appeal the District Court's decision that L.H.'s Individualized Education Plan ("IEP") did not need to include nurse accompaniment on her bus route to school. They also appeal the denial of attorneys' fees under the Individuals with Disabilities Education Act ("IDEA"). For the following reasons, we will reverse the June 30, 2017, Order of the District Court as we find the inclusion of the nurse on L.H.'s bus route to school was a related service necessary for inclusion within her IEP. Because of this, we will remand the matter to the District Court to award attorneys' fees in an amount deemed appropriate.

I.

L.H. is an autistic girl who attended New Beginnings School, an out of district placement in the Fair Lawn School District.1 Transportation to and from the school is listed as a "related service" in her IEP. (A7). On February 5, 2015, L.H. was taken to Hackensack University Medical Center after experiencing a seizure. Hospital staff recommended medical follow-up with L.H.'s general pediatrician, and her parents took L.H. to her pediatric neurologist, Michael Katz, the next day. Katz diagnosed L.H. with epilepsy and prescribed Diastat, a medication that must be administered rectally for seizures lasting longer than two minutes.

On February 9, 2015, L.H.'s parents contacted her case manager at Fair Lawn, Michael Russomanno, to request that the District provide a health professional trained in the administration of Diastat on L.H.'s bus. After talks with the District, an aide was finally placed on L.H's bus beginning on March 9, 2015. Prior to the grant of the request, L.H.'s parents transported her to school for the period between February 9, 2015 and March 9, 2015.

Thereafter, School District personnel discussed whether they needed to amend L.H.'s IEP to add the nurse-transportation component. Ultimately, they decided to add the service to L.H.'s individualized health plan ("IHP") on the basis that the service was responding to a medical issue as opposed to an educational one.2 On February 26, 2015, L.H.'s parents filed a request for emergent relief and due process, claiming violations of the IDEA. On March 27, 2015, while proceedings were pending, L.H.'s IHP was amended to state that "[w]hile awaiting diagnostic information the district is providing on the school bus a licensed medical professional to carry out medical orders regarding seizure medication [at the District's expense]." (A66).

That same day, Administrative Law Judge ("ALJ") Sandra Ann Robinson issued an emergent relief order requiring "that the medically trained individual continue on the transport with L.H. throughout the period of a due process hearing on this matter." (Id. at 55). After three days of hearings, ALJ Judge Jesse H. Strauss held as follows: Once [District physician] Dr. Muccini(sic) agreed that L.H. required a nurse on the bus as part of her transportation-related service notwithstanding his position that L.H. required additional and more definitive testing, the [relevant] regulations make it abundantly clear that the District was required to amend L.H.'s IEP to reflect the nursing service as part of the transportation related service, and I so CONCLUDE. . . . The District erred in not amending the related services portion of L.H.'s IEP. If it were subsequently determined by more comprehensive testing that this service for L.H. was not necessary, the IEP can again be amended.

(A68)...

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