No. 11-5070 IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________ R.K., Next Friend R.K., Next Friend J.K., Plaintiff-Appellant v. BOARD OF EDUCATION OF SCOTT COUNTY, KENTUCKY; PATRICIA PUTTY, Individually and in her Official Capacity as Superintendent, Defendants-Appellees _________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY _________________ BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PLAINTIFF-APPELLANT AND URGING REVERSAL _________________ CHARLES P. ROSE THOMAS E. PEREZ General Counsel Assistant Attorney General FRANCISCO LOPEZ SAMUEL R. BAGENSTOS Attorney Principal Deputy Assistant U.S. Department of Education Attorney General Office of General Counsel GREGORY B. FRIEL APRIL J. ANDERSON Attorneys Department of Justice Civil Rights Division Appellate Section - RFK 3724 Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 616-9405 Case: 11-5070 Document: 006110979482 Filed: 06/07/2011 Page: 1
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No. 11-5070 IN THE UNITED STATES COURT OF APPEALS …No. 11-5070 IN THE UNITED STATES COURT OF APPEALS . FOR THE SIXTH CIRCUIT _____ R.K., Next Friend R.K., Next Friend J.K., Plaintiff-Appellant
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No. 11-5070
IN THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
_________________
R.K., Next Friend R.K., Next Friend J.K., Plaintiff-Appellant
v.
BOARD OF EDUCATION OF SCOTT COUNTY, KENTUCKY; PATRICIA PUTTY, Individually and in her Official Capacity as
Superintendent,
Defendants-Appellees _________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY
_________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING PLAINTIFF-APPELLANT AND URGING REVERSAL
_________________
CHARLES P. ROSE THOMAS E. PEREZ General Counsel Assistant Attorney General
FRANCISCO LOPEZ SAMUEL R. BAGENSTOS Attorney Principal Deputy Assistant U.S. Department of Education Attorney General Office of General Counsel GREGORY B. FRIEL APRIL J. ANDERSON Attorneys Department of Justice Civil Rights Division Appellate Section - RFK 3724 Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 616-9405
IDENTITY AND INTEREST OF THE AMICUS CURIAE AND THE SOURCE OF ITS AUTHORITY TO FILE THIS BRIEF .................................................................................... 1
ISSUES PRESENTED ............................................................................................... 2 STATEMENT OF THE CASE .................................................................................. 2 STATEMENT OF THE FACTS ............................................................................... 3 SUMMARY OF ARGUMENT ................................................................................. 9 ARGUMENT I THE DISTRICT COURT FAILED TO APPLY THE CORRECT LEGAL STANDARDS IN ANALYZING WHETHER DEFENDANTS COMPLIED WITH SECTION 504’S FAPE AND GENERAL NON-DISCRIMINATION REQUIREMENTS .............. 11 A. Standard Of Review .................................................................. 12 B. Section 504’s FAPE Requirements ........................................... 12 C. The District Court Improperly Ignored The FAPE
Standards And The General Non-discrimination Requirements Imposed By The Department Of Education’s Section 504 Regulations .................................. 17
1. The District Court Failed To Determine (1) Whether Defendants Based The Placement Decision On An Individualized Assessment Of R.K.’s Specific Needs, And (2) Whether Denying Him Admission To His Neighborhood School Was Truly Necessary .......................................... 17
TABLE OF CONTENTS (continued): PAGE 2. The District Inappropriately Assumed That The Location Of R.K.’s Placement Was Irrelevant In Deciding Whether Defendants Met Their Obligations Under Section 504 .......................................................... 20 II UNDER THE SUPREMACY CLAUSE, A SCHOOL DISTRICT MAY NOT AVOID ITS OBLIGATIONS UNDER FEDERAL LAW EVEN IF COMPLIANCE MIGHT VIOLATE STATE LAW ...................... 23 CONCLUSION ........................................................................................................ 29 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE ADDENDUM
MISCELLANEOUS: PAGE American Diabetes Ass’n, Diabetes Basics: Common Terms, available at http://www.diabetes.org/diabetes-basics/ common-terms/common-terms-f-k.html ......................................................... 4 Ky. Bd. Med. Licensure, “Board Opinion Regarding Training of and Delegation to School Employees” (Dec. 17, 2009), available at http://www.kbml.ky.gov /board/ policies.htm ....................................................................................... 24 National Diabetes Education Program, Helping the Student with Diabetes Succeed: A Guide for School Personnel (2010), available at http://ndep.nih.gov/media / Youth_NDEPSchoolguide.pdf ........................................................ 4-5, 15, 20 57 Fed. Reg. 49,274 (Oct. 30, 1992) .................................................................. 19-20
Although R.K. “has become more comfortable with the use of his insulin
pump” as he has gotten older, he still needs help monitoring the pump and “some
assistance” in counting the carbohydrates he eats so that the correct information
can be entered into the pump. (R. 39, Opinion, pp. 2-3 & n.2). R.K.’s physician
prepared a “Diabetes Medical Management Plan,” which states that an adult must
supervise the boy’s use of the insulin pump and that he needs assistance in
counting carbohydrates. (R. 14-1, Diabetes Medicine Management Plan, pp. 5, 7).
The plan does not state that a nurse or other licensed health care provider must be
the one who supervises and assists R.K. with his insulin administration. R.K. has
successfully attended a summer day camp and an after-school program, neither of
which had a nurse on duty. (R. 32-1, Affidavit, pp. 2-3). The staff members at the
camp and after-school program assisted R.K. in operating the pump and counting
carbohydrates. (R. 32-1, Affidavit, pp. 2-3).
After R.K. started using an insulin pump, his parents asked school district
officials to permit their son to attend his neighborhood school and requested that
the school district train an employee at that school to help R.K. operate the pump
and calculate his carbohydrate intake. (R. 39, Opinion, pp. 2-3). The school
( . . . continued) and Prevention. Helping the Student with Diabetes Succeed 1, 128. The United States Department of Education supports the use of this publication, and prepared pages 113-118 of the guide. Id. at 5.
THE DISTRICT COURT FAILED TO APPLY THE CORRECT LEGAL STANDARDS IN ANALYZING WHETHER DEFENDANTS
COMPLIED WITH SECTION 504’S FAPE AND GENERAL NON-DISCRIMINATION REQUIREMENTS
The district court failed to apply the proper legal standards in analyzing
R.K.’s claim that defendants violated his right to a FAPE under Section 504. As
explained below, the Section 504 FAPE requirements are set forth in regulations
promulgated by the Department of Education, see 34 C.F.R. 104.33-104.36, and
are consistent with Section 504’s general non-discrimination requirements, see 34
C.F.R. 104.4. But in rejecting R.K.’s Section 504 claim, the district court did not
mention, much less apply, the standards that the Department of Education
mandated in the Section 504 regulations.3
3 The district court included, in a string cite, a parenthetical explaining that
“IDEA regulations indicate preference not mandate for neighborhood school unless IEP requires placement elsewhere.” (R. 39, Opinion, p. 14). But the district court never mentioned, even in passing, any Section 504 regulations that apply to R.K.’s FAPE claim.
The district court failed to apply those
standards even though R.K. stated in his pleadings that his Section 504 claim was
based, in large part, on the alleged denial of a FAPE (R. 1, Complaint, pp. 4, 7),
and even though he specifically invoked the Department of Education’s FAPE
regulations in support of that claim. (See R. 18, Pls.’ Resp. to Opp’n to Mot. For
Preliminary Injunctive Relief, p. 3 (explaining that 34 C.F.R. 104.33 provided the
right to a FAPE)).4
A. Standard Of Review
Because the district court failed to apply the relevant legal
standards governing Section 504 FAPE claims, this Court should vacate the grant
of summary judgment and remand for reconsideration under the correct standards.
This Court reviews de novo the grant of summary judgment, including the
question whether the district court applied the proper legal standard. Merritt v.
International Ass’n of Machinists & Aero. Workers, 613 F.3d 609, 618 (6th Cir.
2010).
B. Section 504’s FAPE Requirements5
Most students with diabetes are covered by Section 504 of the Rehabilitation
Act, which provides that “[n]o otherwise qualified individual with a disability * * *
shall, solely by reason of her or his disability, be excluded from the participation
in, be denied the benefits of, or be subjected to discrimination under any program
4 Appellant also relies on the Section 504 FAPE requirements in this appeal.
See Appellant’s Opening Br. 16, 18-19, 32-33 & n.1. 5 Although this brief focuses on the Section 504 FAPE requirements, we
note that Title II of the ADA and its regulations “shall not be construed to apply a lesser standard than the standards applied under [Section 504] or the regulations issued by Federal agencies pursuant to that [statute].” 28 C.F.R. 35.103(a); see also 42 U.S.C. 12134(b). Thus, the protections of Title II can be greater, but not less, than the rights provided by the Section 504 regulations. This brief does not address all of the mandates that Section 504 and Title II impose in the education context.
education” (FAPE) to students with disabilities “regardless of the nature or
severity” of the students’ disabilities. 34 C.F.R. 104.33(a); see also Smith v.
Robinson, 468 U.S. 992, 1016-1017 (1984) (discussing FAPE requirement under
Section 504 regulations).7
7 The IDEA also includes a FAPE requirement that applies to students with
disabilities who are eligible for special education and related services. See 20 U.S.C. 1400(d)(1)(A), 1412(a)(1) & (5). Some children with diabetes are covered by the IDEA. See 34 C.F.R. 300.8(c)(9); Helping the Student with Diabetes Succeed 115. This Court has held that, if a plaintiff brings FAPE claims under both the IDEA and Section 504, a failure to prove a violation of IDEA’s FAPE requirements necessarily requires rejection of the plaintiff’s Section 504 FAPE claims. See N.L. v. Knox Cnty. Schs., 315 F.3d 688, 695-696 (6th Cir. 2003). N.L.’s holding is inapposite here because, as the district court recognized, R.K. did not allege a violation of the IDEA’s FAPE requirements. (See R. 39, Opinion, pp. 5-9).
These Section 504 regulations define FAPE to include
“the provision of regular or special education and related aids and services” that
are “designed to meet individual educational needs of handicapped persons as
adequately as the needs of nonhandicapped persons are met.” 34 C.F.R.
104.33(b)(1). Such “educational and related services” must be provided “without
cost to the handicapped person or to his or her parents or guardian” (except for fees
also imposed on nondisabled students and their parents). 34 C.F.R. 104.33(c)(1).
For those students who have a Section 504 plan requiring insulin doses during the
school day, insulin administration is considered one of the “related aids and
services” that the school must provide as part of its FAPE obligations under the
Section 504 regulations. See Helping the Student with Diabetes Succeed 114.
persons unless such action is necessary.” 34 C.F.R. 104.4(b)(iv) (emphasis
added); see p. 14, supra.
C. The District Court Improperly Ignored The FAPE Standards And The General Non-discrimination Requirements Imposed By The Department Of Education’s Section 504 Regulations
1. The District Court Failed To Determine (1) Whether Defendants
Based The Placement Decision On An Individualized Assessment Of R.K.’s Specific Needs, And (2) Whether Denying Him Admission To His Neighborhood School Was Truly Necessary
As previously explained, the Section 504 FAPE regulations require schools
to conduct an individualized assessment of a student’s needs before making a
school placement decision. 34 C.F.R. 104.35(a); see also 34 C.F.R. Pt. 104, App.
A, Subpt. D, No. 25 at 409 (2010) (“Section 104.35(a) requires * * * an individual
evaluation” of a student’s needs). When making this individualized assessment,
the school must consider a variety of factors, including the particular student’s test
scores, teacher recommendations, physical condition, social or cultural
background, and adaptive behavior. 34 C.F.R. 104.35(c)(1).
In interpreting the Section 504 FAPE regulations, the Department of
Education has emphasized that “the needs of the handicapped person are
determinative as to proper placement.” 34 C.F.R. Pt. 104, App. A, Subpt. D, No.
24 at 408. Accordingly, the Department has made clear that “[t]he overriding rule
regarding placement is that placement decisions must be made on an individual
basis,” and that such decisions “may not be based on category of disability, the
him effective services. Notably, the court did not determine whether a lay person
could adequately provide R.K. the assistance he needed with insulin administration
or whether only a nurse or physician could safely and effectively provide such
assistance.
On remand, the district court should assess whether the school district
conducted an appropriate inquiry into R.K.’s specific needs or, instead, simply
applied a blanket policy that children needing assistance with insulin
administration must attend one of two schools with a nurse. Because “the needs of
the [student] are determinative as to proper placement,” 34 C.F.R. Pt. 104, App. A,
Subpt. D, No. 24 at 408, a categorical rule is not an appropriate ground for a
placement decision under the Section 504 FAPE regulations, see 57 Fed. Reg.
49,274, 49,275 (Oct. 30, 1992).
In considering whether the school district adequately assessed R.K.’s
individual needs, the court should take into account the possibility that the nurse
assigned to R.K.’s current school could be absent or occupied with assisting
another student when R.K. needs help, or may be unavailable to go on field trips or
attend after-school activities with R.K.8
8 Non-academic services, including health services, and extracurricular
services and activities are also part of a recipient’s education program, and students with disabilities must be afforded an equal opportunity to participate in those
allowing non-nurse employees to assist with insulin administration may interfere
with its ability to provide R.K. the “related aids and services,” 34 C.F.R.
104.33(b)(1), that it must offer as part of its FAPE obligations under the Section
504 regulations. See p. 15, supra. The blanket ban, if enforced during field trips
or after-school events when no nurse is available, might also conflict with the
school district’s obligation to “provide non-academic and extracurricular services
and activities in such manner as is necessary to afford handicapped students an
equal opportunity for participation in such services and activities.” 34 C.F.R.
104.37(a). See also Helping the Student with Diabetes Succeed 16 (noting children
with diabetes need supervision during field trips and similar activities and
recommending that additional personnel be trained to provide routine and
emergency care).
2. The District Inappropriately Assumed That The Location Of R.K.’s Placement Was Irrelevant In Deciding Whether Defendants Met Their Obligations Under Section 504
In determining where to educate a student with a disability who, like R.K.,
needs assistance with diabetes care, a school district must ensure that its placement
deliberations are consistent with the general non-discrimination provisions of the
Department of Education’s Section 504 regulations. 34 C.F.R. 104.4. Under these ( . . . continued) services. See 34 C.F.R. 104.37(a); see also 34 C.F.R. Pt. 104, App. A, Subpt. D., No. 26 at 410.
Even if Kentucky law barred a lay person from administering insulin in
public schools, such a state law requirement must yield to federal obligations.10
( . . . continued) government entity is required to implement to bring itself into compliance with federal law. A defendant should be allowed to choose the option that comports with state law, so long as it is equally effective in providing equal opportunity to the person with a disability. In addition, a court can permissibly consider the policy reasons underlying a state law (for example, health and safety concerns) in determining whether federal law requires a proposed change in a defendant’s policy. But if federal law would otherwise require a change in policy, a defendant cannot refuse to make the change simply because doing so would violate state law.
Under the Supremacy Clause, state law must give way to the extent it “conflicts
with federal law.” Crosby v. National Foreign Trade Council, 530 U.S. 363, 378-
10 The district court did not decide whether Kentucky law actually
prohibited the school district from allowing non-nurses to assist R.K. with his insulin pump and carbohydrate monitoring. Although the United States takes no position on the proper interpretation of Kentucky law, we note that the district court seems to have overlooked a number of factors potentially relevant to the state law question. Defendants relied on two advisory opinions of the Kentucky Board of Nursing, but those opinions are not “regulation[s]” and do “not have the force and effect of law.” (R. 26-4, Ky. Bd. of Nursing, Advisory Opinion Statement No. 15, p. 5). And one of the statutes on which defendants relied authorizes physicians to delegate health-related duties to properly trained school personnel who are not medical professionals. See Ky. Rev. Stat. 156.502(2)(c). The Kentucky Board of Medical Licensure has issued an advisory opinion that would allow physicians “to delegate carbohydrate counting, insulin dose calculations, and insulin administration (injection or pump bolus)” to unlicensed school employees under Section 156.502 in appropriate circumstances. See Ky. Bd. Med. Licensure, “Board Opinion Regarding Training of and Delegation to School Employees” (Dec. 17, 2009), available at http://www.kbml.ky.gov/board/policies.htm. The district court’s opinion does not discuss whether a physician, rather than a nurse, would be willing to delegate the responsibility for the insulin administration to lay persons at R.K.’s neighborhood school.
assistance with insulin administration from attending a school without a nurse on
staff. That was error. To the extent Kentucky law impedes defendants’ ability to
comply with their FAPE obligations under the Section 504 regulations, state law
must “give way.” Swann, 402 U.S. at 45.12
12 A finding of preemption in R.K.’s case would not require the Court to
invalidate any state laws or regulations on their face, and would not prevent them from being applied in any context where they do not stand as an obstacle to the achievement of the purposes of federal law.
This Court should reverse the district court’s judgment and remand for
reconsideration under the proper legal standards.
Respectfully submitted,
CHARLES P. ROSE THOMAS E. PEREZ General Counsel Assistant Attorney General FRANCISCO LOPEZ SAMUEL R. BAGENSTOS Attorney Principal Deputy Assistant U.S. Department of Education Attorney General Office of General Counsel
s/April J. Anderson GREGORY B. FRIEL APRIL J. ANDERSON Attorneys Department of Justice Civil Rights Division Appellate Section - RFK 3724 Ben Franklin Station P.O. Box 14403 Washington, DC 20044-4403 (202) 616-9405