Tatro v. State of Tex.

• Decision Date: 25 April 1983
• Docket Number: No. 81-1454,81-1454
• Citation: 703 F.2d 823
• Parties: 10 Ed. Law Rep. 73 Henri and Mary TATRO, Individually, and as Next Friend of Amber Tatro, A Minor, Plaintiffs-Appellees, Cross-Appellants, v. The STATE OF TEXAS, et al., Defendants, State Board of Education, Defendant-Appellant, The Irving Independent School District, Defendant-Appellant Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 823

703 F.2d 823

10 Ed. Law Rep. 73

Henri and Mary TATRO, Individually, and as Next Friend of Amber Tatro, A Minor, Plaintiffs-Appellees, Cross-Appellants, v. The STATE OF TEXAS, et al., Defendants State Board of Education, Defendant-Appellant The Irving Independent School District, Defendant-Appellant Cross-Appellee.

No. 81-1454.

United States Court of Appeals Fifth Circuit.

April 25, 1983.

James W. Deatherage, Irving, Tex., for Irving.

Tally F. Parker, Jr., O. Glenn Weaver, Irving, Tex., amicus curiae for Irving, Texas Ass'n of School Boards, Ass'n of School Administrators.

Martha H. Allan, Asst. Atty. Gen., Richard L. Arnett, Texas Educ. Ass'n, Austin, Tex., for State Bd. of Educ.

James Todd, Austin, Tex., for plaintiffs-appellees, cross-appellants.

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

Before BROWN, GEE and JOLLY, Circuit Judges.

GEE, Circuit Judge:

This is Amber Tatro's second appearance before this court. The facts and procedural history of her case are reported in detail in our prior opinion, 625 F.2d 557 (1980) (Tatro I ), and in those of the district court. 516 F.Supp. 968 (1981); 481 F.Supp. 1224 (1979). To aid the reader, we will briefly summarize them here. Amber is a seven year old girl afflicted with myelomeningocele, a birth defect commonly known as spina bifida. As a result of this handicap, she suffers from speech and orthopedic impediments and a neurogenic bladder. Because this last condition prevents voluntary emptying of the bladder, Amber must be catheterized several times daily to prevent injury to her health. The method chosen by Amber's doctors, the most widely accepted procedure, is Clean Intermittent Catheterization ("CIC").

In early 1979, when Amber was three and one-half years old, her mother asked the Irving Independent School District ("school district") to provide special education for Amber. The school district agreed, and in a series of meetings with the Tatros, developed an Individual Education Program ("IEP") for Amber as required by the Education of All Handicapped Children Act ("EAHCA"), 20 U.S.C. Secs. 1401(19), 1414(a)(5) (1976). The IEP provided for Amber's placement in the school district's Early Childhood Development ("ECD") classes and for the provision of various other services to Amber, including physical and occupational therapy. The IEP did not provide for CIC and the school district maintained that it had no legal obligation to administer it.

Amber's parents next pursued an administrative appeal from the school district's decision not to provide CIC. See 20 U.S.C. Sec. 1415 (1976) (setting out procedures). Pursuant to 20 U.S.C. Sec. 1415(b)(2), an impartial hearing officer conducted a hearing and determined that the EAHCA required the school district to provide CIC. The Texas Commissioner of Education adopted the hearing officer's decision. Amber T., bnf Mary T. v. Irving Independent School District, TEA Docket No. 115-SE-579 (August 6, 1979). The Texas State Board of Education ("State Board") reversed the decisions of the Commissioner and hearing officer and reinstated the school board's decision not to provide CIC. After thus exhausting state remedies as required by the EAHCA, the Tatros brought the present action in federal district court pursuant to 20 U.S.C. Sec. 1415(e)(2) (1976), naming the school board, the State Board, and others as defendants. ¹

The Tatros contended that the school district violated the EAHCA by failing to provide Amber with a "free appropriate public education," id. Sec. 1412(1), which is defined in part as "special education and related services." Id. Sec. 1401(18). Specifically, they argued that CIC is a "related service" the state must provide to fulfill its duty to Amber under the EAHCA. The Tatros also argued that the school district's refusal to provide CIC violated section 504 of the Rehabilitation Act of 1973 which prohibits discrimination against the handicapped in federally funded programs. 29 U.S.C. Sec. 794 (Supp. V 1981).

The district court denied the Tatros' motion for a preliminary injunction to require the school board to provide CIC. 481 F.Supp. at 1229. That court concluded that CIC is not a "related service" within the meaning of the EAHCA because the need for it does not arise from the effort to educate. Id. at 1227. The district court further concluded that section 504's prohibition of discrimination does not impose a duty upon the school board to take affirmative action such as the provision of CIC. Id. at 1228-29.

The Tatros appealed from the district court's order, and based upon facts that were assumed for purposes of the appeal, this court reversed. Tatro I, 625 F.2d at 558 n. 1, 562. This court held that CIC falls within the literal terms of the statutory definition of "related services," which includes "supportive services ... as may be required to assist a handicapped child to benefit from special education." Id. at 564 (citing 20 U.S.C. Sec. 1401(17) (1976)). Because, under the assumed facts, Amber would be unable to attend ECD classes without provision of CIC during the school day, this court concluded that CIC was essential if she was to benefit from special education, and that CIC was therefore a "related service" in her case. The district court had thought it necessary to limit the statutory language to services arising from the effort to educate in the absence of any evidence of Congressional intent to require provision of life support services through an education statute. 481 F.Supp. at 1227. This court concluded that the district court's limiting construction of the EAHCA's literal language was erroneous because the EAHCA contained its own limitations on the types of life support services falling within the ambit of "related services." 625 F.2d at 562. This court further held that the school district's refusal to provide CIC violated section 504.

I. The EAHCA Claim

Were we writing on a clean slate, we would share the district court's reluctance to read a statute designed to aid education to require provision of medical necessities of life which are required by a child whether or not she participates in the state's educational program. Nevertheless, Tatro I is the authoritative interpretation of the EAHCA in this circuit, and under "law of the case" principles, must be followed by us in this subsequent appeal "unless (1) the evidence on a subsequent trial was substantially different, (2) controlling authority has since made a contrary decision of the law applicable to such issues, or (3) the decision was clearly erroneous and would work a manifest injustice." White v. Murtha, 377 F.2d 428, 432 (5th Cir.1967) (footnote omitted; enumeration added); see Goodpasture, Inc. v. M/V Pollux, 688 F.2d 1003, 1005-06 (5th Cir.1982); United States v. McClain, 593 F.2d 658, 664 (5th Cir.), cert. denied 444 U.S. 918, 100 S.Ct. 234, 62 L.Ed.2d 173 (1979). None of these considerations justifies departure from Tatro I by this panel.

Although we perhaps would have taken a different view of the EAHCA upon de novo consideration, we cannot say that the well-documented Tatro I decision was not also a principled interpretation of that undeniably delphic statute. It is not clearly erroneous and certainly does not work manifest injustice. Further, neither the parties' briefs nor our own research has revealed any supervening authority. ² Thus, the only remaining issue under the EAHCA in this case is whether the evidence adduced on remand from Tatro I is so different from the assumed factual basis for that decision that its legal conclusions no longer apply. The school district argues that such is the case.

Tatro I did not hold that all life support services are "related services" under the EAHCA, nor that school districts must always provide CIC to children who need it. Derived from the statute and its regulations were three conditions that must obtain before a school board must provide services such as CIC:

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. Sec. 121a.14 (1979) (comment one); see 20 U.S.C.A. Sec. 1401(1).... Second, the life support service must be necessary to aid a handicapped child to benefit from the special education to be provided. See id. Sec. 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. 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. Sec. 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. Sec. 121a.13(4). 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.

625 F.2d at 562-63 (footnotes omitted).

All parties agree that Amber is handicapped and in need of special education. The school district argues that the district court erred in finding the other two Tatro I conditions met in this case. It is argued first that under Texas law, CIC may not be performed by a nurse or other qualified person unless a physician is physically present to control and supervise the procedure. The argument concludes that such participation by a physician transforms CIC into "medical treatment" which the school district need not provide under Tatro I. Id. at 563; 20 U.S.C. Sec. 1401(17) (1976) (medical treatment is a related service only if provided for diagnostic and evaluation purposes). The district court, guided by its extensive experience in applying Texas law, and...