Shelby S Ex Rel. Kathleen T v. Conroe Independent School District

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

))))))))))))))))))))))))))

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