HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/MART3.ASC

Text File | 1993-01-14 | 17KB | 319 lines

/* This case is reported in 861 F.2d 1502 (11thCir. 1988). This
case is the appeal of the decision made by the U.S. District
Court in Tampa (Middle District) of Florida regarding the
admission of a trainably mentally handicapped child, who is HIV
positive to school. It is a major case regarding the construction
of the laws related to this issue and important reading for those
with questions related to this type of case.*/

Eliana Martinez, by and through her next friend, Rosa E.
Martinez, her mother, Plaintiff-Appellant,

v.

School Board of Hillsborough County, Florida, a corporate body
public, Defendant - Appellee.

United States Court of Appeals, Eleventh Circuit.

December 1, 1988.



VANCE, Circuit Judge:

This case involves the appropriate educational placement of a
mentally retarded child infected with the human immunodeficiency
virus, the virus that causes Acquired Immunodeficiency Syndrome
(AIDS).  Appellant, Eliana Martinez, is seven years old and has
an I.Q. of 41.  This classifies her as a trainably mentally
handicapped child. Eliana was born prematurely and received
thirty-nine blood transfusions in the first four months of life.
In April 1985 Eliana was diagnosed as suffering from AIDS Related
Complex.  She now is in the late stages of AIDS but her condition
has been stabilized for several months.  The court below found
that Eliana is not toilet trained and suffers from thrush, a
disease that can produce blood in the saliva.  Eliana sucks her
thumb and forefinger frequently, resulting in saliva on her
fingers.  In the past Eliana has suffered from skin lesions. When
these occurred, Mrs. Rosa Martinez, her adoptive mother, has kept
her at home.

In the summer of 1986, Mrs. Martinez attempted to enroll Eliana
in the special classroom for trainably mentally handicapped
("TMH") children in the public school system of Hillsborough
County, Florida. Based on the recommendation of an
interdisciplinary review team, the Hills-borough County School
Board decided that the appropriate educational placement for
Eliana was homebound instruction.  Mrs. Martinez requested an
administrative hearing, pursuant to the Education of the
Handicapped Act, 84 Stat. 175 (1970) (codified as amended by the
Education for All Handicapped Children Act, 89 Stat. 775 (1975),
at 20 U.S.C.  1401-1461 (1982)) ("EHA"), to review the board's
decision. On August 25,1987, a hearing officer of the Florida
Division of Administrative Hearings upheld the school board's
decision. Having exhausted the administrative remedies prescribed
under the EHA, Mrs. Martinez brought this action on behalf of
Eliana challenging the hearing officer's determination.  She
alleged that the board's decision violated Eliana's rights under
the EHA, section 504 of the Rehabilitation Act of 1973, 87 Stat.
394 (1973) (codified as amended at 29 U.S.C.  794 (1982)), and
the equal protection clause of the fourteenth amendment.

The case was tried without a jury on July 13 and 14, 1988.  At
trial Mrs. Martinez argued that Eliana should be admitted to the
TMH classroom.  She contended that the following reasonable
accommodations could reduce the risk of transmission: requiring
Eliana to maintain a distance from other children; assigning a
full-time aide to assist with health precautions; placing Eliana
with non-ambulatory TMH students; using disposable diapers and a
separate potty chair for toilet training; limiting the number of
students in the classroom; and using gloves, disinfectants, and
other precautions in handling and disposing of waste materials.
The school board argued that homebound placement was proper
because Eliana is incontinent and mouths her fingers.  It
contended that because many of the mentally handicapped children
do not have control over their bodily functions, there is an
unacceptable risk of transmission of the AIDS virus to other
children and of transmission of communicable diseases from the
other children to Eliana.

The district court heard extensive expert testimony on the risk
of transmission.  It found that there was a "remote theoretical
possibility" of transmission of the AIDS virus through tears,
saliva and urine.  It held that the most appropriate educational
placement for Eliana is as follows: Eliana will be taught in a
separate room to be constructed in the TMH classroom with a large
glass window and sound system to allow Eliana to see and hear the
students in the main classroom.  A full-time aide will remain in
the room with Eliana and attempt to toilet train her and teach
her not to mouth her fingers.  Another child can enter the room
only if a waiver is obtained from the child's parents absolving
the school board from liability. Eliana can be taught in the main
classroom when she becomes toilet trained and no longer places
her fingers in her mouth. At that time, a full-time aide will
ensure that an appropriate distance between Eliana and other chil
dren is maintained. The school nurse will be available for
consultation if questions arise as to the advisability of Eliana
being in the classroom on a certain day. 692 F.Supp. 1293.

Mrs. Martinez appealed the trial court's decision.  We vacate and
remand for further proceedings consistent with this opinion.

Two overlapping federal statutes establish the framework for
determining appropriate educational placement for handicapped
children-the Education of the Handicapped Act (the "ERA"), and
section 504 of the Rehabilitation Act of 1973 ("section 504"). In
the Handicapped Children's Protection Act of 1986, Congress
affirmed that the ERA was not intended to supplant rights
otherwise available to handicapped children under the
Rehabilitation Act. The Supreme Court had held that the ERA was
the exclusive remedy for equal protection claims to a public
education.  Smith v. Robinson, 468 U.S. 992, 104 S.Ct. 3457, 82
L.Ed.2d 746 (1984).  In response Congress enacted the Handicapped
Children's Protection Act of 1986, 100 Stat. 796, 797 (1986)
(codified  as  amended  at  20  U.S.C.A.  1415(f) (West Supp.
1988)), which added the following provision to the EHA:

Nothing in this chapter shall be construed to restrict or limit
the rights, procedures, and remedies available under the
Constitution, title V of the Rehabilitation Act of 1973 ... or
other Federal statutes protecting the rights of handicapped
children and youth, except that before the filing of a civil
action under such laws seeking relief that is also available
under this subchapter, the procedures under subsections (b)(2)
and (c) of this section shall be exhausted to the same extent as
would be required had the action been brought under this sub
chapter.

20 U.S.C.A.  1415(f) (West Supp.1988).

See 132 Cong.Rec. S9279 (daily ed.  July 17,1986) (statement of
Sen. Simon) (1986 Act "will restore the intended protections [of
the ERA] to all handicapped children....  The enactment [of the
ERA] in no way deprived handicapped children of existing
constitutional and statutory provisions protecting their
rights.")

When the ERA and section 504 are read together, a complementary
set of standards emerges to determine the appropriate educational
setting for a handicapped child. The ERA requires participating
states to provide a "free appropriate public education" to
handicapped children. 20 U.S.C.  1412(2)(B) (1982).  Educational
authorities must develop an individualized educational program
stating the educational program and setting forth specific goals
for each handicapped child. The ERA sets forth an administrative
procedure whereby parents who do not agree with the educational
placement of their child can request a due process hearing
conducted by the state or local educational agency. Id.
1415(b)(2).  If the hearing is before a local or intermediate
educational entity, either party may appeal to the state edu
cational agency for an impartial review. After exhausting this
administrative procedure, either party may bring a civil action
in state or federal court.  The court will review the records of
the administrative proceedings and, at the request of a party,
hear additional evidence. Under the ERA, the trial court must
first determine if the state has complied with the procedures pre
scribed under that statute.  Board of Educ. v. Rowley, 458 U.S.
176, 206,102 S.Ct. 3034, 3050-51, 73 L.Ed.2d 690 (1982). These
procedures include the requirement that

to the maximum extent appropriate, handicapped children ... are
[to be] educated with children who are not handicapped, and that
special classes, separate schooling, or other removal of
handicapped children from the regular educational environment
occurs only when the nature or severity of the handicap is such
that education in regular classes with the use of supplementary
aids and services cannot be achieved satisfactorily.

20 U.S.C.  1412(5)(B). See Department of Educ. v. Katherine D.,
727 F.2d 809 (9th Cir.1983), cert. denied, 471 U.S. 1117, 105
S.Ct. 2360, 86 L.Ed.2d 260 (1985).  This is referred to as the
"least restrictive environment" requirement. See 34 C.F.R.  300.-
550.556 (1987).  Second, the court must determine whether the
educational program developed by the state was "reasonably
calculated to enable the child to receive educational benefits."
Rowley, 458 U.S. at 207, 102 S.Ct. at 3051.  The court then may
"grant such relief as [it] determines appropriate," based on the
preponderance  of the  evidence.   20  U.S.C.  1415(e)(2) (1982).

Section 504 of the Rehabilitation Act more broadly provides:

No otherwise qualified handicapped individual ... shall, solely
by reason of his handicap, be excluded from the participation in,
be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial
assistance or under any program or activity conducted by any
Executive agency or by the United States Postal Service.

29 U.S.C.  794 (1982).  In considering whether an exclusion is
prohibited by section 504, a trial judge must first determine
whether the individual is "otherwise qualified." When a person is
handicapped with a contagious disease this task requires the
judge to conduct an individualized inquiry and to make
appropriate findings of fact, "based on reasonable medical
judgments ... about (a) the nature of the risk (how the disease
is transmitted), (b) the duration of the risk (how long is the
carrier infectious), (c) the severity of the risk (what is the
potential harm to third parties) and (d) the probabilities the
disease will be transmitted and will cause varying degrees of
harm."  School Bd. v. Arline, 480 U.S. 273,107 S.Ct 1123, 1131,
94 L.Ed.2d 307 (1987).  As a second step the court must evaluate
whether reasonable accommodations would make the handicapped
individual otherwise qualified.  Id.

When a child with an infectious disease seeks relief under both
the ERA and section 504 of the Rehabilitation Act, the
relationship between these two statutory frameworks is
particularly intricate.  The trial judge must first determine the
most appropriate educational placement for the handicapped child
under ERA procedures. Next, the court must determine whether the
child is otherwise qualified within the meaning of section 504 to
be educated in this setting, despite the communicable disease.
See Arline, 107 S.Ct. at 1131 n. 16. If not, the court must
consider whether reasonable accommodations could reduce the risk
of transmission so as to make the child otherwise qualified to be
educated in that setting.  In considering accommodations that
would make the child "otherwise qualified," the court must bear
in mind the requirement that to the maximum extent appropriate,
the child is to be educated in the least restrictive environment.

Eliana is entitled to a free appropriate public education under
the ERA. She suffers from two handicaps under section 504 of the
Rehabilitation Act: she is mentally retarded and has AIDS; each
condition results in a "physical or mental impairment which
substantially limits one or more major life activities." 45
C.F.R.  84.3(j)(1)(i) (1987). See Arline v. School Bd., 772 F.2d
759, 764 (11th Cir.1985) affd 480 U.S. 273, 107 S.Ct. 1123, 94
L.Ed.2d 307 (1987). Applying the standards under these two
statutes to the facts of this case, the trial court first had to
determine the most appropriate educational placement for Eliana
under the ERA. Next, it had to consider whether Eliana was
otherwise qualified to be educated in this setting.  If the trial
court found that Eliana was not otherwise qualified, it then had
to consider whether reasonable accommodations would make her so.
If, after reasonable accommodations, a significant risk of
transmission would still exist, Eliana would not be otherwise
qualified.  See Arline, 107 S.Ct. at 1131 n. 16.

As the parties agreed, the appropriate educational placement for
Eliana under the ERA would be the regular TMR classroom if she
did not suffer from AIDS. This presented the question whether the
exclusion of Eliana from that setting is unlawful under section
504.  In conducting this inquiry, the trial court had to
determine whether Eliana was otherwise qualified to be educated
in the regular TMH classroom. The trial court found a "remote
theoretical possibility" of transmission with respect to tears,
saliva and urine. This does not rise to the "significant" risk
level that is required for Eliana to be excluded from the regular
TMR classroom. See Arline, 107 S.Ct. at 1131, n. 16;  Chalk v.
United States Dist. Court, 840 F.2d 701, 70708 (9th Cir.1988);
New York State    Ass'n for Retarded Children, Inc. v. Carey, 612
F.2d 644, 650 (2d Cir.1979); Thomas v. Atascadero Unified School
Dist., 662 F.Supp. 376, 380 (C.D.Cal.1987).  The court below made
no findings with respect to the overall risk of transmission from
all bodily sub stances, including blood in the saliva, to which
other children might be exposed in the TMR classroom.
Accordingly, we remand with directions that the trial court make
findings as to the overall risk of transmission so that it can
determine whether Eliana is otherwise qualified to attend classes
in the TMR classroom.

If the risk of transmission supports a finding that Eliana is not
"otherwise qualified" to attend classes with the other children
in the TMH classroom, the court must consider whether reasonable
accommodations would make her so.  In evaluating possible
accommodations, a trial court must consider the effect of each
proposed accommodation on the handicapped child and the
institution. See Carey, 612 F.2d at 65051. The court must be
guided by the require ment that, to the maximum extent
appropriate, these accommodations place the child in the least
restrictive environment that would make the child otherwise quali
fied. Additionally, the court must consider the financial burden
the accommodation would impose on the institution.  See
Southeastern  Community  College  v. Davis, 442 U.S. 397, 412, 99
S.Ct. 2361, 2370, 60 L.Ed.2d 980 (1979) (accommodation not
reasonable if it imposes "undue financial and administrative
burdens").

Under the EHA a trial court enjoys discretion to determine
appropriate placement consistent with these goals based on the
evidence before it and giving "due weight" to state
administrative procedures.  See Rowley, 458 U.S. at 206,102 S.Ct.
at 3050 51.  Central to the administrative frame work under the
ERA is the requirement that relief be tailored to the particular
needs of each child. [footnote 1]  Accordingly, a trial court
must base its remedial decision on evidence of the probable
effect of a proposed accommodation on the child.  The record
below contains no findings with respect to the effect on Eliana
of isolating her with an aide in a separate room in the TMH
classroom.  On remand, the court -must hear evidence concerning
the effect of any accommodation that would be reasonable based
upon the risk of transmission.  This evidence must, at the mini
mum, relate to the effect of the proposed remedy on her
psychological and educational development. See, e.g., Carey, 612
F.2d at 651 (discussing stigmatizing effect of separation from
other children).

We vacate the judgment of the district court and remand the case
so that the district court may make the further required
findings. The district court should receive such additional
evidence as it deems necessary in light of such requirements. It
should thereafter enter such judgment as is appropriate.

VACATED and REMANDED with instructions.



FOOTNOTE

1.   The individual nature of relief is emphasized throughout the
EHA and accompanying regulations.  A public agency "in selecting
the least restrictive environment [shall consider] any potential
harmful effect on the child or on the quality of services which
he or she needs." 34 C.F.R.  300.552 (1987). The comment to this
regulation makes clear that ·"[t]he overriding rule in this
section is that placement decisions must be made on an individual
basis." Id.