S.P. ex rel. M.P. v. Knox Cnty. Bd. of Educ.
| Citation | 329 F.Supp.3d 584 |
| Decision Date | 12 September 2018 |
| Docket Number | No. 3:17-CV-00100 REEVES/GUYTON,3:17-CV-00100 REEVES/GUYTON |
| Parties | S.P., next friend of M.P., T.P., next friend of M.P., and D.H., next friend of E.E., Plaintiffs, v. KNOX COUNTY BOARD OF EDUCATION, Knox County, and Tennessee Department of Education, Defendants. |
| Court | U.S. District Court — Eastern District of Tennessee |
Jessica F Salonus, The Salonus Firm, PLC, Jackson, TN, Justin S. Gilbert, Gilbert McWherter Scott & Bobbitt, Chattanooga, TN, for Plaintiffs.
Amanda Lynn Morse, David M. Sanders, Office of Knox County Law Director, Knoxville, TN, Melissa A. Brodhag, Office of the Attorney General, Nashville, TN, for Defendants.
Plaintiffs allege that Knox County has a policy and practice of busing children with epilepsy from schools without nurses to schools with nurses for administration of the medication Diastat
. Plaintiffs contend this practice violates the Individuals with Disabilities Education Act (IDEA) and incorporated state law, Title II of the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act. Defendants move for summary judgment on plaintiffs' claims.
Plaintiffs move for leave to submit a sur-reply based upon the recent case of Sophie G. v. Wilson Cnty. Schs. , 742 Fed.Appx. 73, 2018 WL 3409208 (6th Cir. Jul. 12, 2018). Plaintiffs contend that the Sophie G. case addresses many of the issues pertinent to the defendants' motions for summary judgment. The court agrees. Accordingly, plaintiffs' motion for leave to submit a sur-reply [R. 52] is granted.
During the 2015-16 and 2016-17 school years, E.E. and M.P. were enrolled in two different elementary schools in the Knox County school system. Both children were prescribed an anti-seizure medication called Diastat. The Knox County Board of Education (KCBE) had in effect a policy that required Diastat
to be administered only by a nurse.
KCBE's 2008 "Health Services Seizure Disorder Protocol" states that "Students with protocol, which requires Diastat
rectal medication or oxygen administration, will attend a school (transferred if necessary) where there is a full time on-site nurse." The Protocol was updated in 2013, but no change was made to the Diastat administration "transfer if necessary" language. The Protocol was updated for a third time in June of 2016. The mandatory language requiring administration of Diastat by a nurse remained, but the "transfer if necessary" language was removed.
Plaintiffs allege that KCBE required students with a Diastat
prescription to transfer to a school with a full time nurse if their zoned school was not staffed with a full time nurse, per the Protocol. Plaintiffs contend this violates Tenn. Code Ann. § 49-50-1602(g)(7) : "An LEA [local education agency] shall not assign a student with epilepsy or other seizure disorder to a school other than the school for which the student is zoned ... because the student has a seizure disorder." KCBE and Knox County state that if a student with a Diastat prescription is zoned to attend a particular school that does not have a full time nurse, they offer the student's parents the opportunity to transfer to a school with a nurse. Alternatively, the school system would transfer a full time nurse to the zoned school. Plaintiffs respond they were never offered this option.
Plaintiffs allege that the Tennessee Department of Education (TDOE) knew KCBE had an illegal policy to transfer students with epilepsy to non-zoned schools and permitted it to continue. Plaintiffs claim that TDOE violated its oversight, supervisory, and monitoring authority over KCBE.
M.P. was scheduled to attend kindergarten at her zoned school, West View Elementary, for the 2016-17 school year. In March 2016, prior to the beginning of the school year, an Individualized Education Plan (IEP) meeting was held for M.P. Her parents did not inform school officials of the Diastat
order until after the meeting concluded. Another meeting was planned for May 2016. In April 2016, the principal at Fort Sanders Educational Developmental Center called M.P.'s father about the Diastat prescription. She stated that Diastat required a full time nurse to be at the school and that West View Elementary did not have a full time nurse. She further stated that KCBE had a policy where students with Diastat
were transferred to a school with a full time nurse if their zoned school did not have a nurse. She did not say anything about being able to request that a school nurse be installed at West View, just that transfer was required. M.P.'s father examined the 2013 Health Services Protocol, which on its face, was consistent with the principal's explanation. Neither the principal, nor the Protocol, said anything about a student's ability to request that a nurse be provided at West View. M.P.'s father then met with his daughter's neurologist. The neurologist testified the risk of seizures is always present for M.P., even though it is very low. M.P.'s parents decided to discontinue Diastat so M.P. could attend her zoned school. Because West View is .3 of a mile from their home, M.P.'s father determined the removal of Diastat was the lesser of the two evils (the other one being bused to a separate school with no one to administer Diastat on the bus).
On February 3, 2017, M.P. filed with TDOE a Due Process Complaint against TDOE, KCBE, and Knox County. No hearing was conducted as the parties agreed the matter was outside the scope of a FAPE (Free Appropriate Public Education).1
When E.E. moved to Tennessee, Copper
Ridge was her first zoned school. However, Cooper Ridge lacked a full time nurse. Prior to an IEP meeting, office staff at Copper Ridge called E.E.'s mother and guardian and advised that the IEP meeting would be held at Brickey-McCloud Elementary because, unlike Copper Ridge, it had a full time nurse to administer Diastat. E.E.'s guardian was told it was school policy for E.E. to go to a school with a nurse. Therefore, E.E. would be transferred to the nearest school with a nurse, Brickey-McCloud Elementary. D.H., (E.E.'s guardian) asked whether getting a nurse at Copper Ridge was possible and she was told no, it was not being staffed for a nurse for the upcoming year. The IEP meeting notes specifically state "The Team will reconvene at a determined location in order to discuss placement in a school with a full time nurse due to seizure disorder."
E.E. attended Brickey-McCloud Elementary school during the 2015-16 school year. On October 30, 2015, E.E.'s IEP team met at Brickey-McCloud. During the meeting, E.E.'s mother informed the school that she had moved into the Carter Elementary school zone. The IEP team agreed that E.E. should enroll at her zoned school as soon as possible, and that the team would meet again to discuss transitioning services to that school. KCBE was familiar with E.E.'s medical history and knew that E.E. had been prescribed Diastat
. KCBE states that Carter Elementary did not (during the 2015-16 school year) offer the special education services required to implement E.E.'s IEP, so E.E. was transferred to East Knox Elementary for special education services. Additionally, East Knox Elementary was staffed by a full time nurse.
Plaintiffs allege KCBE instructed E.E.'s parent and guardian that E.E. would have to transfer to East Knoxville Elementary because Carter Elementary lacked a full time nurse to administer Diastat
.
In August 2016, an administrative complaint was filed with TDOE. After an investigation, TDOE responded:
[TDOE] does not find a procedural or substantive violation of federal and state special education laws nor a violation of Student's entitlement to a free and appropriate public education ... the IEP of Student did not require that she be educated in a school other than the school she would attend if non-disabled.
On February 3, 2017, E.E. filed a Due Process Complaint against TDOE, KCBE, and Knox County. As with M.P., no hearing was conducted because the parties agreed the matter was outside the scope of a FAPE. See fn 1.
E.E. and M.P. state they were subjected to KCBE's policy and practice of transferring them to a school they would not have attended without the Diastat
orders. They were instructed about the Protocol and how they must be transferred; they were never told they could have a nurse at their zoned school; and for E.E., she was specifically told she could not. The court notes that both E.E. and M.P. are currently enrolled at their zoned schools, and their claims concern events occurring during the 2015-16 and 2016-17 school years.
Summary judgment under Rule 56 of the Federal Rules of Civil Procedure is proper "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The moving party bears the burden of establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett , 477 U.S. 317, 330 n. 2, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Moore v. Philip Morris Co., Inc. , 8 F.3d 335, 339 (6th Cir. 1993). All facts and inferences to be drawn therefrom must be viewed in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Burchett v. Kiefer , 310 F.3d 937, 942 (6th Cir. 2002).
Once the moving party presents evidence sufficient to support a motion under Rule 56, the nonmoving party is not entitled to a trial merely on the basis of allegations. Celotex , 477 U.S. at 317, 106 S.Ct. 2548. To establish a genuine issue as to the existence of a particular element, the nonmoving party must point to evidence in the record upon which a reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91...
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