Kohl by Kohl v. Woodhaven Learning Center

• Citation: 865 F.2d 930
• Decision Date: 12 May 1989
• Docket Number: 87-2644,Nos. 87-2627,s. 87-2627
• Parties: 51 Ed. Law Rep. 383 Dennis KOHL, by his parents and guardians, Norbert and Jean KOHL, Appellees, v. WOODHAVEN LEARNING CENTER, a corporation, and Woodhaven School, Inc., a corporation, Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 930

865 F.2d 930

51 Ed. Law Rep. 383

Dennis KOHL, by his parents and guardians, Norbert and Jean KOHL, Appellees, v. WOODHAVEN LEARNING CENTER, a corporation, and Woodhaven School, Inc., a corporation, Appellants.

Nos. 87-2627, 87-2644.

United States Court of Appeals Eighth Circuit.

Submitted March 14, 1988.

Decided Jan. 10, 1989.

Rehearing and Rehearing En Banc Denied May 12, 1989.

Marvin E. Wright, Columbia, Mo., for appellants.

Ann B. Lever, St. Louis, Mo., for appellees.

Before McMILLIAN, WOLLMAN and BEAM, Circuit Judges.

WOLLMAN, Circuit Judge.

The Woodhaven Learning Center and Woodhaven School, Inc. (WLC and WS, or collectively Woodhaven) appeal from the district court's ¹ order granting Dennis Kohl declaratory and injunctive relief. See Kohl v. Woodhaven Learning Center, 672 F.Supp. 1226 (W.D.Mo.1987). The district court found that Woodhaven had discriminated against Kohl, an active carrier of infectious hepatitis B, and in doing so violated his rights under section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. Sec. 794 (1986) (the Act). Id. at 1248. The district court permanently enjoined both institutions from denying Kohl admission and ordered each to submit to the court a proposed plan for inoculating certain of their staff against hepatitis B. Id. at 1248-49. We reverse the district court's order granting Kohl injunctive and declaratory relief and remand for further proceedings.

I.

WLC and WS, located in Columbia, Missouri, are not-for-profit corporations organized and existing under the laws of the State of Missouri. Both receive federal funding through various programs. WLC provides residential placement for handicapped individuals and is also a "life-skills facility" that seeks to enable its clients to function more independently. WS is a habilitation facility that provides educational, pre-vocational, and vocational day programs for handicapped individuals. At the time of the trial, WLC had approximately 180 clients and 300 employees; WS had approximately 55-60 employees and 60 clients. Both institutions have a high staff turnover rate.

Kohl is thirty-two years old, mentally retarded, bilaterally blind, and an active carrier of hepatitis B. As a result of his physical and mental impairments, he frequently exhibits maladaptive behavior, including scratching, biting, open masturbation, and self-abuse.

In 1983, the Community Placement Committee of the Missouri Department of Mental Health (DMH) recommended referring Kohl to Woodhaven from Colonial Town, a private hospital where Kohl was then residing and where he had been placed by the DMH. Kohl's parents, along with his DMH case manager, completed his application to Woodhaven in early 1984. Kohl is an adjudicated incompetent, and his parents are also his legal guardians. In July of 1984, Kohl was admitted to Woodhaven for evaluation.

On September 10, 1984, WLC informed Kohl's DMH case manager by letter that Kohl was "determined to be appropriate" for WLC's program, but that he was being refused admission because WLC would not accept a hepatitis B carrier until all its clients and staff were inoculated and screened. Similarly, although a certified vocational evaluator from WS rated Kohl as a "good candidate" for its programs, Kohl was denied admission to WS. Kohl was discharged from the Woodhaven program on October 26, 1984. WLC informed Kohl's parents twice during the first half of 1985 that Kohl could return when immunization was complete.

Kohl's parents filed this action in his behalf on April 14, 1986, seeking, inter alia, an injunction prohibiting WLC and WS from excluding Kohl.

The district court found that WLC and WS had violated Kohl's rights under section 504 of the Rehabilitation Act, which provides:

No otherwise qualified individual with handicaps * * * shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance * * *.

29 U.S.C. Sec. 794 (1988). The district court found that Kohl was an otherwise qualified handicapped individual within the meaning of the Act and that WLC and WS had discriminated against him solely on the basis of his handicap. On the basis of the testimony of Kohl's medical experts, the district court found that WLC and WS could reasonably accommodate Kohl without either significant alteration in their programs or undue cost by inoculating and screening only the small percentage of their staffs that would regularly come into direct contact with Kohl.

II.

Hepatitis is an infection that primarily affects the liver and is often caused by specific viruses, one of which is the hepatitis "B" virus. ² The most common symptoms of hepatitis B are an inflammation of the liver and a mild flu-like illness. Hepatitis B also may cause more serious liver disease and liver cancer, with approximately 10 percent of all hepatitis patients requiring hospitalization and less than 1 percent suffering a fatal deterioration of the liver function. In addition, by at least one estimate, 25 percent of those infected will become chronic carriers themselves. ³

Although the transmission of hepatitis B is not fully comprehended, most medical experts agree that it is transmitted through body fluids, chiefly blood but also through saliva, tears, and seminal fluid, and not by casual contact. Infection occurs when contaminated body fluid comes into contact with breaks in the skin, even breaks too small to be visible to the human eye, or mucosal surfaces such as the mouth or eyes of an uninfected person. Not every contact with contaminated body fluids will result in infection, but a single exposure involves a 10-15 percent chance that the exposed person will become infected. More prolonged exposure increases the risk, and in the high risk groups--clients of mental institutions, promiscuous homosexual men, and intravenous drug users--the risk is nearly 100 percent.

Hepatitis carriers are not uniformly infectious. A carrier determined to be "e antigen positive" is three to four times more infectious than an "e antigen negative" carrier. (When Kohl first applied to Woodhaven, he tested e antigen positive, but is now e antigen negative.) An alteration in carrier status is not uncommon; however, only 1 percent of all carriers lose their infectiousness entirely each year.

An effective vaccine is available against hepatitis B. In the general population, it is approximately 90 percent effective, increasing to 95-99 percent effective with younger individuals and decreasing below 85 percent effective with individuals who are over the age of fifty, obese, or suffer from Down's Syndrome. The inoculation process requires a series of three shots given over a six-month period. A single booster shot is required every four to five years, or as often as every two years for those with Down's Syndrome. A small percentage of those inoculated will experience side effects of either mild discomfort or low-grade fever. A post-inoculation blood screening test can identify those individuals who have been successfully immunized. An unimmunized individual who is exposed to contaminated fluids may be treated with hepatitis B immune globulin, which, if properly administered within forty-eight hours, will prevent infection in 75 percent of the cases.

The cost of inoculation is currently between $150 to $175 per person, the cost of a booster shot approximately $50, and the cost of post-inoculation screening at least $20 to $25 per person. Immune globulin is also expensive. At the time Kohl applied to Woodhaven, none of the institution's staff or clients had been inoculated. WLC and WS have now inoculated all or almost all of their clients pursuant to a DMH program initiated in 1985. As of the date of the trial, the clients had not been screened to identify those who failed to develop immunity. The DMH program did not cover staff.

Assuming a total of 360 staff members and a combined cost of $200 to inoculate and screen each individual, to inoculate and screen all the staff at Woodhaven would cost approximately $72,000 initially for the serum and lab tests alone, not including booster shots. Because the yearly staff turnover rate is 75 percent at WLC and 50 percent at WS, each would have an additional yearly cost of $45,000 and $6,000, respectively, to inoculate new staff. The district court proposed inoculating only a small portion of the total Woodhaven staff, at an initial cost of roughly $8,100 and a yearly cost of $5,000 thereafter.

III.

Woodhaven's first argument on appeal is that the doctrine of primary jurisdiction precluded the district court from taking subject matter jurisdiction. See, e.g., United States v. Western Pacific R.R., 352 U.S. 59, 64, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956). We disagree. When the DMH referred Kohl to Woodhaven, it performed its essential function and set these events in motion. There was no other issue that had to be resolved in the first instance by an administrative body of "special competence" that if unresolved would deprive the district court of subject matter jurisdiction. See id. at 64, 77 S.Ct. at 165. ⁴

IV.

Woodhaven's next argument is that its program is not the least restrictive environment for Kohl's care, as required by federal and Missouri law. See 42 U.S.C. Sec. 6009(2) (1988); Mo.Rev.Stat. Sec. 633.115 (1988). Woodhaven claims that Kohl's current residence, the Northwest Habilitation Center in St. Louis, where Kohl was transferred on March 10, 1987, is the least restrictive environment for him and can provide care superior to that available at Woodhaven.

When Kohl applied to Woodhaven early 1984, he was residing at Colonial Town, and Northwest Habilitation Center did not yet exist. Kohl's DMH case manager, Nancy Shrewsbury, referred Kohl to Woodhaven in 1983. Therefore, we cannot find clearly erroneous the district court's determination...