Neely v. Rutherford County School, 94-5755

• Decision Date: 02 November 1995
• Docket Number: No. 94-5755,94-5755
• Citation: 68 F.3d 965
• Parties: , 104 Ed. Law Rep. 123, 13 A.D.D. 166 Samantha NEELY, George Neely, Carol Neely, Plaintiffs-Appellees, v. RUTHERFORD COUNTY SCHOOL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 965

68 F.3d 965

64 USLW 2298, 104 Ed. Law Rep. 123,

13 A.D.D. 166

Samantha NEELY, George Neely, Carol Neely, Plaintiffs-Appellees, v. RUTHERFORD COUNTY SCHOOL, Defendant-Appellant.

No. 94-5755.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 12, 1995.

Decided Nov. 2, 1995.

Gary D. Buchanan (argued and briefed), Tenn. Protection and Advocacy, Nashville, TN, for plaintiffs-appellees.

Jeffrey L. Reed (argued and briefed), Murfree, Cope, Hudson & Scarlett, Murfreesboro, TN, for defendant-appellant.

Before WELLFORD, MILBURN, and SUHRHEINRICH, Circuit Judges.

WELLFORD, Circuit Judge.

We are called upon here to interpret the scope of the "medical services" exclusion to the Individuals with Disabilities Education Act ("IDEA"), 20 U.S.C. Sec. 1401(a)(17). ¹ Plaintiff Samantha Neely is a seven year old child who attends school in Rutherford County. Samantha suffers from a medical condition which required that she receive a tracheostomy. As a result of her condition, Samantha must undergo regular suction of throat, nose, and mouth areas in order to avoid serious and, even life threatening, health consequences. George and Carol Neely, Samantha's parents, believe that the IDEA obligates Rutherford County to provide Samantha with suctioning services while she is in school and that Tennessee law requires that those services be provided by a licensed medical professional. The district court agreed with plaintiffs and rejected Rutherford County's contention that such services were "medical services" that Congress specifically excluded under the IDEA. For the reasons stated below, we REVERSE the decision of the district court.

I. STATEMENT OF FACTS

There is little dispute concerning many of the facts of this controversy. Samantha Neely suffers from Congenital Central Hypoventilation Syndrome, an extremely rare condition that causes breathing difficulties. Samantha's tracheostomy procedure was necessary to assist her breathing. The procedure creates an opening in the throat, known as a stoma, through which a breathing tube is inserted. This tube must remain in place at all times, but the tube can be dislodged relatively easily if Samantha coughs or even adjusts her clothing. Should the tube become dislodged, Samantha's respiratory functions will cease or become shallow, she will lose consciousness, and she will die if full breathing is not quickly restored. ²

As a result of the tracheostomy, Samantha is unable to expel throat, mouth, and nose secretions. Consequently, she must regularly suction her breathing passage by mechanical device to ensure that the secretions do not create a blockage; such a blockage would lead to death if not quickly cleared. The number of times Samantha must be suctioned each day varies with the season and with Samantha's health. For instance, when Samantha has a cold, she must be suctioned approximately every twenty minutes; when Samantha is in good health, she may need to be suctioned only after meals.

If Samantha's breathing stops, she may require ventilation with an AMBU bag, which is a device that artificially pumps air into the lungs. If care is not administered within a very few minutes, serious brain damage or death will occur. Samantha is unable to provide her own tracheostomy care. A well-trained individual is required because insertion of the breathing tube can be difficult. The suctioning process must be carefully performed to avoid injury to Samantha and there is little margin for error when resuscitation methods are required. Given the short response time available in emergency situations, the care giver must have sufficient training to avoid panic. Samantha's attendant must devote considerable amounts of his or her attention to Samantha and must be readily accessible to her.

During her first year of school, Samantha's parents alternately attended school with Samantha to provide the care she needs. Due to the illness of another child, however, the Neelys petitioned the school district to hire a full-time nurse or respiratory care professional to attend to Samantha during the coming school year. Rutherford County initially agreed to employ an attendant with the requisite training and revised Samantha's individualized educational plan ("IEP") ³ accordingly. The school district, however, subsequently hired an individual with only a nursing assistant's certification. The Neelys objected and removed Samantha from school when the care requested was not promptly provided. After a meeting with school officials to determine why it had not hired a respiratory care professional, the parties agreed that Samantha would receive home instruction until the Education Department could determine whether Rutherford County had to hire a nurse to provide in-school, full-time care for Samantha.

Samantha's parents requested a due process hearing before the Tennessee Department of Education. On October 28, 1993, an administrative law judge (ALJ) held a hearing at which the parties submitted testimonial and documentary evidence. The ALJ concluded that the care requested by Samantha was a "medical service" which Rutherford County was not obligated to provide under the IDEA. After the Education Department entered its final order, Samantha and her parents filed suit in federal district court seeking judicial review. The district court held a hearing and provided both parties the opportunity to offer evidence. Neither party submitted any evidence at the hearing, but the Neelys submitted the full administrative record to the district court and supplemented the record with the affidavit of George Neely, Samantha's father. After a review of the evidence, the district court found that the services requested by Samantha were supportive services that the IDEA required Rutherford County to provide. In addition, the district court found that these services were not medical services excluded under the Act. The district court therefore reversed the ALJ's decision and ordered the school district to provide the requested care. Rutherford County filed this timely appeal.

II. STANDARD OF REVIEW

Section 1415(e)(2) of the IDEA provides that "[i]n any action brought under this paragraph 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 appropriate." 20 U.S.C. Sec. 1415(e)(2). A preponderance finding is indicated in an IDEA action, Doe ex rel. Doe v. Defendant 1, 898 F.2d 1186, 1190 (6th Cir.1990), and the Supreme Court has rejected unrestricted de novo review. In Board of Education of the Hendrick Hudson Central School District v. Rowley ex rel. Rowley, 458 U.S. 176, 206, 102 S.Ct. 3034, 3050-51, 73 L.Ed.2d 690 (1982), the Court stated that the

the provision that a reviewing court base its decision on the "preponderance of the evidence" is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review. The very importance which Congress has attached to compliance with certain procedures in the preparation of an IEP would be frustrated if a court were permitted simply to set state decisions at nought. The fact that Sec. 1415(e) requires that the reviewing court "receive the records of the [state] administrative proceedings" carries with it the implied requirement that due weight shall be given to these proceedings. And we find nothing in the Act to suggest that merely because Congress was sketchy in establishing substantive requirements, as opposed to procedural requirements for the preparation of an IEP, it intended that the reviewing courts should have a free hand to impose substantive standards of review which cannot be derived from the Act itself.

Id. (emphasis added). In light of Rowley, we have interpreted Sec. 1415(e)(2) as calling for "a modified de novo review." E.g., Doe ex rel. Doe v. Board of Educ. of Tullahoma City Schs., 9 F.3d 455, 458 (6th Cir.1993); Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618, 624 (6th Cir.1990). This modified standard "requires a de novo review but the district court should give due weight to the state administrative proceedings in reaching its decision." Roncker ex rel. Roncker v. Walter, 700 F.2d 1058, 1062 (6th Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 196, 78 L.Ed.2d 171 (1983). We, therefore, give the ALJ's decision appropriate consideration.

III. THE REQUIREMENTS OF THE IDEA

Congress enacted the IDEA as remedial legislation in order to enhance the educational opportunities of handicapped children. Thomas, 918 F.2d at 619. The Act's overall objective is to guarantee handicapped children a substantive right to a "free appropriate public education." 20 U.S.C. Sec. 1412(1). The IDEA defines the phrase, free appropriate public education (FAPE), as "special education and related services" that are provided at public expense and supervision, that meet state educational standards, and that conform with the IEP developed for each child. Id. Sec. 1401(a)(18). Section 1401(a)(16) defines "special education" as "specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including--(A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education." Id. Sec. 1401(a)(16)(A),(B). Section 1401(a)(17) states that "related services" include

transportation, and such developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counselling, and medical services, except that such medical services shall be for diagnostic and evaluation...