United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 26, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 04-20666
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SHELBY S, by next friend KATHLEEN T,
Plaintiff–Appellant,
v.
CONROE INDEPENDENT SCHOOL DISTRICT,
Defendant–Appellee.
Appeal from the United States District Court
for the Southern District of Texas
Before JONES, Chief Judge, and WIENER and PRADO, Circuit Judges.
Edward C. Prado, Circuit Judge:
Plaintiff-Appellant Shelby S. (“Shelby”) appeals the
district court’s grant of summary judgment in favor of Defendant-
Appellee Conroe Independent School District (“CISD”). Shelby
contends that the district court erred in affirming the decision
of the Special Education Hearing Officer (“Hearing Officer”).
The Hearing Officer concluded that there is a need for CISD to
perform a medical evaluation on Shelby in order to develop and
implement a special education program for her pursuant to the
Individuals with Disabilities Education Act (“IDEA”). The
Hearing Officer ordered that CISD be permitted to conduct a
medical evaluation of Shelby, despite objections from Shelby’s
guardian. For the reasons that follow, we AFFIRM.
Background:
Shelby is a student in the CISD and is eligible to receive
special education under the IDEA. She suffers from a rare
autonomic nervous system1 disorder known as Dysautonomia that
makes her medically-fragile: she is prone to sudden “crises” that
can result in unconsciousness, cyanosis, cardiac arrest, and
death. Kathleen T. (“Ms. T”) is Shelby’s grandmother, guardian,
and primary caregiver; she is most familiar with Shelby’s
physical cues that precede her crises and is the person most
experienced in responding to such crises. Shelby’s treating
physician is Dr. Dorothy Kelly. Dr. Kelly is a pediatric
pulmonologist and specialist in Shelby’s disorder.
Shelby’s autonomic nervous system dysfunction makes her
susceptible to periods where she has decreased cardiac output.
Shelby also has episodes where her larynx goes into spasms and
she cannot get air into her lungs. If left untreated, Shelby can
die from one of these episodes. In addition, Shelby is
particularly sensitive to room temperature: if she is in a room
where the temperature exceeds 72 degrees, she may experience life
threatening symptoms. She can also experience an adverse reaction
to emotional stressors or other stimuli.
1
The autonomic nervous system regulates bodily functions
and the activity of specific organs in humans.
2
Prior to the 2002-03 school year, Shelby was home-schooled
and made only brief visits to school to socialize with the other
children. At the beginning of the 2002-03 school year, Dr. Kelly
reported that Shelby could attend school under certain
conditions. On August 16, 2002, an Admission, Review, and
Dismissal committee (“ARD committee”) met and prepared an
individualized education program (“IEP”) report for Shelby.2 Ms.
T participated in the meeting and agreed with the
recommendations. The ARD committee was given written information
about Shelby’s special health needs and requirements. The ARD
committee agreed that Shelby would receive instruction in the
mainstream education classroom, but with modifications for her
needs. Additional support staff would be in Shelby’s classroom
and outside. Ms. T would be notified when Shelby had been
administered Belladonna.3 Special transportation would be
2
As we explained in Cypress-Fairbanks Independent School
District v. Michael F.:
The “free appropriate public education” that a disabled
student is entitled to receive under the IDEA must be
tailored to [her] particular needs by means of an
“individual educational program” (“IEP”), a written
statement prepared at a meeting attended by a qualified
representative of the school district, a teacher, the
child’s parents or guardians, and, when appropriate, the
child himself. In Texas, the persons charged with
preparing an IEP are known collectively as an
Admissions, Review and Dismissal Committee (“ARD
Committee”).
118 F.3d 245, 247 (5th Cir. 1997); see 20 U.S.C. § 1401(11)
(2000) (amended 2004); § 1404(d).
3
Belladonna is a drug that may be administered to Shelby
when she goes into cardiac arrest.
3
initiated for Shelby on September 3, 2002; Ms. T would bring her
to school until that date. There was no agreement that Ms. T, or
any other aide, would attend classes with Shelby on a daily
basis.
Shelby attended school that year for five days during the
first two weeks of the 2002-03 class year. Ms. T accompanied
Shelby to the classroom each day. Ms. T would sit at the back of
the class, but would periodically go to Shelby’s desk to talk to
her and give her snacks. She also called to Shelby from the back
of the room, reviewed the desks of other children, and commented
to Shelby’s teacher about other children. Ms. T sometimes left
Shelby’s class and her absences would last a few minutes to an
hour.
On August 27, 2002, because Ms. T’s presence was
unacceptable to the administration at Shelby’s school,4 the
principal of the school informed Ms. T she could no longer attend
class with Shelby. As a result, Shelby did not return to class.
On August 28, 2002, Dr. Kelly sent a fax to Shelby’s school,
identifying Ms. T as Shelby’s designated caregiver. Dr. Kelly
gave instructions to the school that Ms. T was to train an
appropriate classroom aide for Shelby and estimated that it would
take about two to four weeks to train an aide. Dr. Kelly
suggested that Ms. T accompany Shelby in the classroom in order
4
According to Shelby’s teacher, Ms. T’s presence was
disruptive in class.
4
to attend to her healthcare needs until an aide could be trained.
The ARD committee met on September 6, 2002, recessed and met
again on September 26, 2002, to discuss Shelby’s IEP and Dr.
Kelly’s fax. The purpose of the meetings was to address
modifications to Shelby’s IEP that were not addressed at the
August 16, 2002 ARD committee meeting. At the September 6
meeting, the ARD committee requested permission to speak with Dr.
Kelly regarding the need for supportive services in the
classroom, but Ms. T limited her consent. Ms. T told the ARD
committee to put its questions in writing — fourteen specific
questions, subject to Ms. T’s approval — to be delivered to Dr.
Kelly. Ms. T edited Dr. Kelly’s responses to the questions
before they were provided to the ARD committee. She specifically
limited the access between Dr. Kelly and members of Shelby’s ARD
committee because she was concerned about Shelby’s privacy. Ms.
T did allow the school nurse and Shelby’s second grade teacher to
talk to Dr. Kelly regarding the fourteen questions, for the
purpose of obtaining information for educational purposes but not
for prognosis.
The ARD concluded it needed additional information about
Shelby, in order to reevaluate her IEP. The ARD committee asked
Ms. T for consent to seek its own evaluation of Shelby. The ARD
committee wanted to arrange for an outside medical evaluation by
a Dysautonomia specialist. Ms. T refused consent on September 6,
2002. She claimed that the outside medical specialist’s
5
anticipated examination of Shelby was likely to cause Shelby
serious harm, and in any case, was unwarranted.
In September and November the school district and Ms. T
remained in disagreement regarding whether Shelby’s guardian
needed to be present in the classroom, the proper accommodations
for Shelby, and whether CISD would be able to conduct further
evaluations. Shelby received instruction for the remainder of
the school year as a homebound student.
Procedural History:
In February 2003, CISD requested that the Texas Education
Agency hold a hearing, pursuant to the IDEA, so that it could
proceed with its evaluation of Shelby in the absence of parental
consent. CISD stated that Ms. T refused to send Shelby to
school; Ms. T claimed Shelby’s health status was fragile, and
that Shelby risked serious injury or death if required to come to
school without her guardian. CISD explained that it did not
believe that Shelby’s guardian needed to be present in the
classroom. It stated it needed to perform a medical evaluation
of Shelby to verify the nature and extent of her health problems.
The Hearing Officer, Stephen P. Webb, conducted a hearing in
June 2003. He determined that because there was conflicting or
missing information about Shelby’s eligibility for special
accommodations and support services, CISD was justified in
attempting to augment its information about Shelby in order to
develop an IEP that would meet her needs.
6
Shelby filed a complaint in district court, challenging the
Hearing Officer’s decision under the IDEA. Shelby asked the
district court to find that CISD was not entitled to a medical
evaluation without parental consent. CISD filed a motion to
dismiss, and alternatively, for summary judgment. It argued that
it is entitled to evaluate Shelby to determine the nature of her
disability.
The district court determined that CISD was entitled to
summary judgment and affirmed the Hearing Officer’s decision that
granted the school district the right to conduct an independent
medical evaluation of Shelby. The district court entered final
judgment on June 15, 2004. Shelby filed a motion for rehearing,
which the district court denied. On August 5, 2004, Shelby
timely filed her notice of appeal of the final judgment. On
appeal, Shelby asks this court to review the district court’s
affirmance of the Hearing Officer’s decision.
Standard of Review:
When we address a district court’s review of a state hearing
officer’s decision in an impartial due process hearing under the
IDEA, we treat mixed questions of fact and law de novo and review
underlying fact-findings for clear error. Houston Indep. Sch.
Dist. v. Bobby R., 200 F.3d 341, 347 (5th Cir. 2000).
Discussion:
The issue before the court is: under what circumstances may
7
a school district compel a medical examination of a student,
necessary for IDEA-mandated reevaluation purposes, when the
student’s guardian refuses consent? The IDEA sets out a
comprehensive scheme to evaluate each student in order to meet
the IDEA’s education goals.5 See 20 U.S.C. §§ 1400-1487. After a
designated period, or as need be, the IDEA requires reevaluations
of each child educated under the act. 20 U.S.C. §
1414(a)(2)(2000)(amended 2004).6 However, prior to conducting any
reevaluation, a local education agency must obtain informed
parental consent. 20 U.S.C. § 1414(c)(3). If the legal guardian
of a child refuses consent, the local education agency may
continue to pursue its evaluation through an impartial due
process hearing.7
Under the circumstances at hand, CISD is entitled to perform
a reevaluation of Shelby. The IDEA states that a reevaluation is
5
The purpose of the IDEA is “to ensure that all children
with disabilities have available to them a free appropriate
public education that emphasizes special education and related
services designed to meet their unique needs.” 20 U.S.C. §
1400(d)(1)(A) (2000)(amended 2004). The applicable version of
section 1400 was effective from June 4, 1997 to June 30, 2005.
6
The applicable version of section 1414 was effective from
July 1, 1998 to June 30, 2005.
7
20 U.S.C. § 1414(a)(1)(C)(ii) (“If the parents of such
child refuse consent for the evaluation, the agency may continue
to pursue an evaluation by utilizing the mediation and due
process procedures under section 1415 of this title.”); §
1414(c)(3)(applying subsection (a)(1)(C) to reevaluations); §
1415(f) (2000)(amended 2004) (providing for an impartial due
process hearing).
8
warranted when the school district requires evaluation materials
that are essential to assessing a child’s special education
needs. See 20 U.S.C. § 1414(c)(1)-(2). In order for CISD to
know how to formulate an IEP consistent with Shelby’s extreme
symptoms, Shelby’s ARD committee needed access to her medical
history and specialist, Dr. Kelly. However, Shelby’s guardian,
Ms. T, limited the medical information that was available to
Shelby’s ARD committee by scripting the main encounter between
Dr. Kelly and the ARD committee with fourteen pre-approved
questions. Ms. T then edited Dr. Kelly’s answers to the ARD
committee’s questions. Without more complete medical information
about Shelby, the ARD committee was not able to fashion an IEP
that would allow CISD to perform its IDEA-mandated duty.
The Hearing Officer and the district court concluded that
CISD was within its right to evaluate Shelby in order to obtain
necessary evaluation materials. We agree and conclude that where
a school district articulates reasonable grounds for its
necessity to conduct a medical reevaluation of a student, a lack
of parental consent will not bar it from doing so.
Shelby also argues that allowing a medical evaluation
without consent violates her right to privacy, but CISD’s
reevaluation of Shelby is not constitutionally problematic.
Shelby is free to decline special education under IDEA rather
than submit to CISD’s medical evaluation. See generally, Gregory
9
K. v. Longview Sch. Dist., 811 F.2d 1307, 1315 (9th Cir. 1987)
(“If the parents want Gregory to receive special education under
the [IDEA],8 they are obliged to permit [reassessment] testing.
If the parents wish to maintain Gregory in his current private
tutoring program, however, the District cannot require a
reassessment.”) (internal citations omitted).
AFFIRMED. We will treat CISD’s Motion to Strike Appellant’s
Memorandum of Errors and for Sanctions as a motion to strike and
GRANT the motion.
8
In 1987, the relevant provisions were entitled the
Education for All Handicapped Children Act.
10