Tatro v. State of Texas, 80-1069

Decision Date02 September 1980
Docket NumberNo. 80-1069,80-1069
Citation625 F.2d 557
PartiesHenri and Mary TATRO et al., Plaintiffs-Appellants, v. The STATE OF TEXAS et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Craig T. Enoch, Dallas, Tex., for plaintiffs-appellants.

James W. Deatherage, Irving, Tex., for Irving Independent School District & Bd. of Trustees of Irving, et al.

O. Glenn Weaver, Irving, Tex., for J. F. Townley.

Martha H. Allan, Asst. Atty. Gen., Austin, Tex., for State of Texas & Texas Ed. Agency.

Appeal from the United States District Court for the Northern District of Texas.

Before GOLDBERG, TATE, and SAM D. JOHNSON, Circuit Judges.

GOLDBERG, Circuit Judge:

Amber Tatro is a four-years-old child who suffers from myelomeningocele, a birth defect commonly known as spina bifida. 1 As a result of this congenital defect, Amber suffers from orthopedic and speech handicaps and from a neurogenic bladder. This latter condition prevents Amber from being able to empty her bladder voluntarily. As a result, Amber must be catheterized every three to four hours in order to function normally without the danger of developing chronic kidney infection.

In 1979, Amber became eligible for participation in the early childhood development program provided by defendant Irving Independent School District ("the school district"). After a series of meetings with Amber's mother, the school district's Admission, Review and Dismissal Committee developed an Individualized Education Plan ("IEP") for Amber as required by the Education for All Handicapped Children Act of 1975 ("the EAHCA"), 20 U.S.C. § 1414(a) (5). 2 The IEP stipulates that physical and speech therapy is to be provided to Amber. However, the IEP fails to specify the provision of any services to Amber that may be necessary due to her neurogenic bladder. More particularly, the IEP fails to specify that Clean Intermittent Catheterization (CIC) will be administered to Amber during the school day. 3

Following the fruitless pursuit of the state remedies required by the EAHCA, 4 Amber's parents, plaintiffs, sued in district court in accordance with 20 U.S.C. § 1415(e)(2). 5 They contend that because the IEP contains no provision for CIC, the school district has violated the EAHCA, 20 U.S.C. § 1412(1), by failing to provide a free appropriate public education to Amber. 6 They also contend that the school district has violated section 504 of the Rehabilitation Act of 1973, ("section 504"), as amended, 29 U.S.C. § 794. 7 The case reaches us from the district court's denial of plaintiffs' motion for a preliminary injunction to require the school district to provide CIC. 8 For the reasons detailed below, we vacate and remand.

I. The EAHCA

The Education for All Handicapped Children Act of 1975, 89 Stat. 773 (1975), was sparked by an "(i)ncreased awareness of the educational needs of handicapped children and landmark court decisions establishing the right to education for handicapped children . . . ." S.Rep.No.168, 94th Cong., 1st Sess. 5, reprinted in (1975) U.S.Code Cong. & Admin. News, pp. 1425, 1429. The Congress found that handicapped children were receiving inadequate services, were not being properly identified and evaluated, and were being subjected to unnecessary exclusion from the regular educational environment. 9 To remedy this situation, Congress increased educational grants to participating states to enable them to meet the unique needs of handicapped children, see id. at 7-9, (1975) U.S.Code Cong. & Admin. News at 1431-33, strengthened procedures to enable parents of handicapped children to advocate more forcefully the rights of their handicapped children, see id. at 9, (1975) U.S.Code Cong. & Admin. News at 1433, adopted judicially imposed due process requirements that ensure the proper identification and evaluation of handicapped children, see id. at 26-30, (1975) U.S.Code Cong. & Admin. News at 1450-52, and stipulated that handicapped children were to be integrated into the regular classrooms to the maximum extent appropriate. See id. at 33-34, (1975) U.S.Code Cong. & Admin. News at 1457-58; S.Conf.Rep.No.455, 94th Cong., 1st Sess. 30, reprinted in (1975) U.S.Code Cong. & Admin. News, pp. 1480, 1483. In reference to the last objective, the Report stated:

The Conferees point out that while instruction may take place in such locations as classrooms, the child's home, or hospitals and institutions, the delivery of such instruction must take place in a manner consistent with the requirements of law which provide that to the maximum extent appropriate handicapped children must be educated with children who are not handicapped, and that handicapped children should be placed in special classes, separate schooling, or any other educational environment only when the nature or severity of the handicap is such that education in regular classes with the use of supplementary aids and supportive services cannot be achieved satisfactorily.

Id.

To ensure the provision of proper services, Congress mandated that recipients of federal funds must assure "all handicapped children the right to a free appropriate public education," 20 U.S.C.A. § 1412(1) (West 1978), which consists of special education and related services. See id. § 1401(18). 10 The battle lines in this case have been drawn on the issue whether the provision of CIC to Amber, a handicapped child within the meaning of the EAHCA, see id. § 1401(1), 11 is a related service.

The district court held that CIC is not. It observed that there are only two categories of related services: (1) transportation required to assist a handicapped child to benefit from special education, and (2) developmental, corrective, and supportive services necessary to assist a handicapped to benefit from special education. It properly concluded that CIC is not transportation and that CIC is neither developmental nor corrective. The district court noted that "CIC is supportive of Amber's education in the sense that it is required at sufficiently frequent intervals that her education and CIC must proceed apace," and that "(o)ne can argue that read literally, every necessary life support system must be furnished." Nevertheless, the district court concluded that there was "no congressional intent to sweep broadly in its usage of the word 'related.' " The court thus held that "to be related in the statutory sense the service requirement must arise from the effort to educate. There is a difference between maintenance of life systems and enhancing a handicapped person's ability to learn. The CIC is essential to Amber's life but once that life maintenance service is provided, it is unrelated to her learning skills."

The district court further observed that the regulations implementing the EAHCA 12 construe related services to include "school health services," 13 which are defined as "services provided by a qualified school nurse or other qualified person." 45 C.F.R. § 121a.13(b)(10) (1979). Despite the fact that CIC comports with this definition of school health services, the district court held that school health services, to be a class of related services, must, like all categories of related services, arise from the effort to educate in order to fit within the statutory definition. Hence, CIC did not fit the bill. We find that the district court erred.

As the district court correctly observed, CIC falls within a literal interpretation of the statutory definition of related services. Quite simply put, without the provision of CIC, Amber cannot benefit from the special education to which she is entitled, for, without CIC, she cannot be present in the classroom at all. Thus, CIC is a supportive service required to assist Amber to benefit from her special education.

Nevertheless, the district court felt compelled to limit the literal words of 20 U.S.C. § 1401(17) because it perceived a need to circumscribe the scope of related services lest "every necessary life support system . . . be furnished." This perception, however, ignored the fact that the EAHCA contains its own limitations on the type of life support services that must be provided as related services. First, in order to be entitled to any related services at all, a child must be handicapped so as to require special education. 45 C.F.R. § 121a.14 (1979) (comment one); see 20 U.S.C.A. § 1401(1) (reprinted at note 11 supra ). Second, the life support service must be necessary to aid a handicapped child to benefit from the special education to be provided. See id. § 1401(17). Thus, a life support service would not be a related service if it did not have to be provided during school hours, but instead could be performed at some other time. 14 Third, in order to be a related service, the life support service must be one which a nurse or other qualified person can perform. 45 C.F.R. § 121a.13(b)(10) (1979). Excluded from the term "related services" are those health-related activities which must be performed by a licensed physician that are not provided "to determine a child's medically related handicapping condition which results in the child's need for special education and related services." Id. § 121a.13(4). 15 Thus, even under a literal interpretation of the statutory definition, the types of life support services needed by a child which can be related services are limited.

Moreover, the district court's deviation from the literal words of the statute ignored a mandate contained in the EAHCA which is additional to the congressional requirement that states furnish each handicapped child a free appropriate public education consisting of special education and related services. The language of 20 U.S.C.A. § 1412(5) (West 1978) is quite unequivocal: 16

In order to qualify for assistance under this subchapter in any fiscal year, a State shall demonstrate to the Commissioner that the following conditions are met:

(5) The State has established . . . procedures to...

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