Lunceford v. District of Columbia Bd. of Educ.

• Decision Date: 16 October 1984
• Docket Number: 83-2210,Nos. 83-2209,s. 83-2209
• Citation: 241 U.S. App. D.C. 1,745 F.2d 1577
• Parties: , 20 Ed. Law Rep. 1075 Pierce LUNCEFORD v. DISTRICT OF COLUMBIA BOARD OF EDUCATION, et al., The Hospital for Sick Children, Appellant. Pierce LUNCEFORD v. DISTRICT OF COLUMBIA BOARD OF EDUCATION, et al., Appellants, The Hospital for Sick Children.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1577

745 F.2d 1577

241 U.S.App.D.C. 1, 20 Ed. Law Rep. 1075

Pierce LUNCEFORD v. DISTRICT OF COLUMBIA BOARD OF EDUCATION, et al., The

Hospital for Sick Children, Appellant.

Pierce LUNCEFORD v. DISTRICT OF COLUMBIA BOARD OF EDUCATION, et al., Appellants,

The Hospital for Sick Children.

Nos. 83-2209, 83-2210.

United States Court of Appeals District of Columbia Circuit.

Argued Sept. 18, 1984.

Decided Oct. 16, 1984.

Appeals from the United States District Court for the District of Columbia (Civil Action No. 83-02132).

Richard B. Nettler, Asst. Corp. Counsel for the District of Columbia, Washington, D.C., with whom John H. Suda, Principal Deputy Corp. Counsel, and Charles C. Reischel, Deputy Corp. Counsel for the District of Columbia, Washington, D.C., were on the brief for appellant, District of Columbia Bd. of Educ.

Patrick Kavanaugh, Washington, D.C., with whom Stephen A. Trimble, Washington, D.C., was on the brief for appellant, Hospital for Sick Children.

Matthew B. Bogin, Washington, D.C., for appellee.

Before GINSBURG and STARR, Circuit Judges, and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GINSBURG.

GINSBURG, Circuit Judge:

Under the Education for All Handicapped Children Act of 1975, Sec. 5(a), 20 U.S.C. Sec. 1415 (1982) (EAHCA), the District of Columbia Board of Education (the District) must provide notice and a full hearing procedure before it can change the educational placement of a handicapped child under its jurisdiction, unless the child's parent or guardian consents to the change. ¹ This civil action raises a question of definition: what constitutes a child's "educational placement" for EAHCA-administration purposes.

The case also presents a "state action" issue. The district court's judgment enjoins action of a private hospital, the Hospital for Sick Children, along with action of the District. As a preliminary matter, we determine whether the private hospital is answerable at all for a claim of the kind plaintiff-appellee has attempted to state.

I. BACKGROUND

The appellee, Pierce Lunceford, is a multi-handicapped young man with profound mental retardation and crippling conditions. Although Pierce is over eighteen years old, his development in many areas has not progressed beyond that of a five-month-old child. Pierce became a ward of the District of Columbia and began living at Forest Haven, the District's institution for the mentally retarded, in May 1966.

As required by the EAHCA, 20 U.S.C. Sec. 1415(b)(1)(B), Pierce was assigned a surrogate parent. ² The parent requested a hearing, pursuant to the EAHCA, id. Sec. 1415(b)(2), on the adequacy of Pierce's educational placement. A hearing was held in December 1980; the hearing officer found Pierce's educational placement in Forest Haven inappropriate, and ordered the District to provide Pierce a new educational placement.

In February 1981, in response to the District's request, Pierce was admitted to residence at the Hospital for Sick Children (HSC). HSC is a private hospital serving children with chronic illnesses or handicapping conditions. It operates an inpatient hospital and an outpatient special education program for profoundly mentally retarded children.

In HSC's education program, Pierce received prescribed therapy. HSC, through its inpatient facilities, also treated Pierce for seizures (a problem that first developed after his admission to HSC) and feeding difficulties, and made adjustments in his wheelchair.

In November 1982, HSC informed Forest Haven that Pierce was ready to be discharged. The hospital recommended that Pierce continue in the education program on an outpatient basis "since he is no longer medically appropriate for hospitalization at HSC." Stipulated Fact No. 16. The surrogate parent was notified and protested that without parental consent, Pierce could not be discharged until completion of an EAHCA hearing procedure. HSC informed the parent that as a private hospital it was not covered by the EAHCA. The District had previously expressed its opinion that the move from HSC back to Forest Haven would not be a change in educational placement; accordingly, in the District's view, the EAHCA did not require completion of hearing procedures in advance of the proposed transfer.

Pierce's discharge was postponed until the District could provide appropriate daily transportation between Forest Haven and HSC. Transportation was made available in July 1983, and Pierce's discharge was set for July 29, 1983.

On July 26, 1983, however, Pierce Lunceford, by his surrogate parent, filed a complaint and motion for a temporary restraining order in the district court. A temporary restraining order issued on July 29. The parties agreed that the preliminary injunction application would be combined with consideration on the merits and that the merits would be decided on stipulated facts. The district court held that a change in residence from HSC to Forest Haven, with continued education at HSC, would be a change in educational placement; that HSC was a "state actor" covered by the EAHCA; and, therefore, that Pierce could not be discharged from HSC until his surrogate parent consented or until HSC completed the hearing procedures described in the EAHCA.

The District and HSC appealed. For the reasons stated below, we reverse the district court's judgment and direct the district court to dismiss the action against HSC and enter judgment on the merits for the District.

II. HOSPITAL FOR SICK CHILDREN

The district court's judgment is cryptic; it appears to hold HSC responsible for retaining Pierce Lunceford as an inpatient pending completion of EAHCA hearing procedures on two bases: either directly and independently under the statute, or under the "state action" doctrine, or on both grounds in combination. As the surrogate parent concedes, however, Congress addressed the EAHCA's procedural requirements only to state or local educational agencies or other public authorities established by state law to provide free public education. See 20 U.S.C. Secs. 1415(a), 1401(7)-(8), (22). HSC is not such an agency or authority.

The surrogate parent suggests as an appropriate statutory basis for the action against HSC, section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794. Section 504 reads:

No otherwise qualified handicapped individual in the United States ... 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....

Assuming arguendo HSC's amenability to this measure by reason of its receipt of Medicaid and Medicare funds, and no preclusion of appellee's resort to the legislation, ³ it remains illogical to argue that HSC discriminated against Pierce because of his handicap.

As stipulated, HSC's decision to discharge Pierce rested on the staff's determination that "he is no longer medically appropriate for hospitalization at HSC." Stipulated Fact No. 16. Nor does there appear to be any genuine doubt that HSC's services "are available only to handicapped children." HSC Brief at 21. Ten children, the hospital's records showed, were waiting for HSC beds at the time Pierce Lunceford sought the temporary restraining order, Defendant's Exhibit No. 8, Lunceford, Civ. No. 83-2132 (D.D.C. Oct. 14, 1983); each of the wait-listed children apparently fit the Rehabilitation Act's definition of "handicapped individual." See 29 U.S.C. Sec. 706(7)(B). Under the circumstances, the discharge of Pierce to permit the admission of another sorely handicapped child rationally could not amount to disadvantageous treatment "solely by reason of his handicap." See Southeastern Community College v. Davis, 442 U.S. 397, 411, 99 S.Ct. 2361, 2369, 60 L.Ed.2d 980 (1979) ("[N]either the language, purpose, nor history of Sec. 504 reveals an intent to impose an affirmative-action obligation on all recipients of federal funds."); Monahan v. Nebraska, 687 F.2d 1164, 1170 (8th Cir.1982) ("Manifestly, in order to show a violation of the Rehabilitation Act, something more than a mere failure to provide the 'free appropriate education' required by EAHCA must be shown.").

The district court's principal reliance in enjoining HSC, it seems, was on the notion that, as a recipient of public funding, HSC was bound by the same statutory and due process requirements "as government." Lunceford, slip op. at 4. Blum v. Yaretsky, 457 U.S. 991, 102 S.Ct. 2777, 73 L.Ed.2d 534 (1982), however, rules out any "state action" peg for the district court's judgment against HSC.

In Blum, the Supreme Court considered whether state action was implicated in private nursing homes' decisions to transfer particular Medicaid patients to different facilities providing lower levels of care. The challengers claimed they did not receive adequate notice and hearings before they were transferred. Like HSC, the nursing homes received large federal financial assistance. Federal regulations required a home to establish a committee to determine, inter alia, the appropriateness of each patient's continued residence at the facility. The Supreme Court held that the nursing homes' transfer decisions were not state action. Heavy regulation by government, the High Court restated, "does not by itself convert [a private facility's] action into that of the State." Id. at 1004, 102 S.Ct. at 2786 (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S.Ct. 449, 453, 42 L.Ed.2d 477 (1974)). Generally, the Court indicated, the action of a nongovernmental entity will not be held to standards limiting official action absent government coercion or significant government encouragement of the measure under inspection. Blum, 457 U.S. at 1004, 102 S.Ct. at 2786. In rejecting "state action" characterization of the transfer decisions in Blum, the Court emphasized that the decisions "ultimately turn[ed] on [private...