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

Text File | 1993-01-14 | 25KB | 518 lines

/* This case is reported in 711 F.Supp. 1061 (M.D.Fla. 1989).
This is one of the more important cases concerning the
admission to school of child who is HIV positive and occurs
after the appeal to the Eleventh Circuit and permits admission
of the child, with some limitations to the regular program.
This court and Judge have had several cases involving HIV
including the civil suit by the Ray brothers (also available
in this service).*/
Elaine MARTINEZ, By and Through her next friend, Rose A.

MARTINEZ, her mother, Plaintiff,

v.

The SCHOOL BOARD OF HILLSBOROUGH COUNTY, FLORIDA,

Defendant.

United States District Court, M.D. Florida, Tampa Division.

April 26, 1989.

MEMORANDUM OPINION





KOVACHEVICH, District Judge.

This cause of action is before the Court on remand from the
Eleventh Circuit Court of Appeals.  The matter previously came
before the Court for trial, without jury, on July 13 and 14,
1988. The Court issued its memorandum opinion in the case on Au
gust 8, 1988. The Court made the following relevant conclusions
of law:


1.   The Rehabilitation Act of 1973 does not add to the rights
available to Plaintiff under the EHCA. Smith v. Robinson, 468
U.S. 992, 104 S.Ct. 3457, 82 L.Ed.2d 746 (1984).  As in that
case, the claims under the constitution are identical to those
under the EHCA and the legal and factual questions are thus the
same.  The Smith decision has been amended by Congress insofar
as recovery of attorney's fees under the EHCA has been added to
the statute. The Supreme Court's conclusions with respect to
identity of relief available under the two statutes and the
constitution are still valid.  Therefore, this cause may be
decided using the legal test developed under the EHCA.


2.   Under the Education for All Handicapped Children Act
(hereafter EHCA), 20 U.S.C.  1401, et seq., Plaintiff is
entitled to a free, appropriate public education in the least
restrictive appropriate environment.


3.   The EHCA does not require the State provide services
sufficient to maximize each child's potential  "commensurate
with the opportunity provided other children."   Hendrick
Hudson District Board of Education v. Rouley, 458 U.S. 176, 102
S.Ct. 3034, 73 L.Ed.2d 690 (1982). Implicit in the
congressional pur pose of providing access to a "free
appropriate public education" is the require ment that the
education to which access is provided be sufficient to confer
some educational benefit upon the handicapped child.  Id. at
200,102 S.Ct. at 3047.


4.   The parties agree that the appropriate standard for
placement of Eliana Martinez (hereinafter Eliana) is a "free
appropriate public education" in the "least restrictive
environment" appropriate to the circumstances of the case. The
parties, however, do not agree what the appropriate least
restrictive environment is in this case.
5.   Plaintiff asserts that the appropriate placement is in a
TMH
classroom, without further modification.  Plaintiff has
proposed some restrictions to that access, if the Court does
not agree to unrestricted access, such as placement in a non-
ambulatory TMH class or provision for a full-time aide for
Eliana; these are acceptable to Plaintiff in order to change
Eliana's placement.

6.   Defendant asserts,  on  the other hand, that the
appropriate
placement for Eliana remains homebound education, due to the
facts that Eliana has AIDS, is not potty trained, and therefore
poses a potential danger to the students of the TMH class which
she desires to attend. Defendant additionally alleges that the
EHCA does not require the School Board to provide one-on-one
education within the context of the integrated classroom.

7.   The homebound program which is now being provided to
Eliana
clearly deprives her of certain benefits of a classroom
education, including socialization and modeling processes.  The
question the Court must address is whether or not other factors
outweigh this clear deprivation of educational benefits so as
to prevent the placement of Eliana in a TMH classroom.

8.   The parties have offered the Court two divergent views on
what is the most appropriate and least restrictive educational
placement for Eliana Martinez: homebound education, and,
placement in an integrated TMH classroom, with or without
special accommodations.  The Court believes the appropriate
educational placement lies somewhere between these two
positions.

9.   The Court, once again, is faced with the challenge of
making
a medical judgment based on divergent medical testimony and
opinion. The Court must balance the right of Eliana Martinez to
get the most appropriate education available, against the
danger, if any, posed to the specific population, the TMH
students, who will be exposed to Eliana. The children in this
TMH classroom are there because of their right to an
appropriate and free public education and as required by the
laws of the state for school at tendance. As this Court said in
Ray v. The School District of DeSoto County, 666 F.Supp. 1524,
1535 (M.D.Fla.1987): The public at large has several interests
to be considered here. First, is the concern of the public to
provide adequate, nondiscriminatory education to all the
children of the state.  The children of this state include
children like the Ray boys, who, through no fault of their own,
have contracted this disease; it clearly provokes in many, fear
and a desperate desire to segregate them from main stream life.
However, there is an equally important public interest in
protecting the health and safety of the public at large, and
here, specifically, the school population which would be in
contact with the Ray boys, if they are returned to an
integrated classroom.

10.  The Court's inquiry should focus on the following factors,
based upon reasonable medical judgment and the state of medical
knowledge: the nature of the risk, the duration of the risk,
the severity of the harm, and the probability of transmission
which will cause varying degrees of harm. See, School Board of
Nassau County v. Arline, 480 U.S. 273, 107 S.Ct. 1123, 94
L.Ed.2d 307 (1987).

11.  These factors have been addressed by this Court in the
findings of fact. The severity of the harm if transmission
occurs is clear; it is most likely fatal. At this time, the
only time transmission would not be fatal is if the
transmission resulted
in seroconversion which never became symptomatic; otherwise,
medical opinion is that all persons infected and symptomatic
will die at some future time, perhaps as little as six (6)
months from the onset of becoming symptomatic.

12.  To the best of medical knowledge, at this time, the
duration of the risk of transmission is perpetual; there is no
evidence that transmissibility changes during the course of the
disease.

13.  The last two factors are essential to the consideration of
this cause of action: the nature of the risk (How is the
disease transmitted?) and the probabilities of transmission.
AIDS has been proven to be transmitted in various ways: sexual
intercourse, homosexual or heterosexual; intravenous drug use,
sharing of needles and  other  equipment;   perinatally;
through breast milk; and through the transfusion of blood and
blood products.

14.  The virus has been isolated in other body secretions,
including tears, saliva, and urine; but it has not been proven
that transmission has occurred through any of these secretions.
The possibility of transmission is generally conceded to be a
"remote theoretical possibility." However, the CDC has not
changed its recommendation that children without control of
their bodily secretions might require a more restricted
educational placement. It has added to its educational
recommendations for schools, as of January 29, 1988, the
statement that deep, openmouthed kissing could theoretically
transmit the HIV virus through the exposure of mucous membranes
to infected blood and saliva.

15.  Eliana Martinez is a neurologically handicapped child who
has a case of  AIDS, in the last stages of that disease who is
incontinent and who mouths her thumb and forefinger on a
continuous basis. These bodily secretions, urine and saliva,
have a remote possibility of being a route of transmission to
the children of the TMH classroom that she desires to attend.
For these reasons, the Court cannot find that the appropriate
place ment for Eliana is the totally unrestricted placement
into the TMH classroom at Manhattan Elementary School; nor, on
the other hand, can the Court agree that the proper placement
for this child is in a homebound program.  The Court finds that
a restricted placement, as explained below, into the TMH
classroom of Manhattan Elementary School is the appropriate
least restrictive environment for Eliana Martinez, at this
time, in the present circumstances.

16.  As the Court noted earlier Eliana Martinez is free to
enjoy the public and private areas of this city, this county,
and this country in other respects. The only concern of this
Court, in this opinion, is to balance the factors in this cause
and devise an appropriate, free educational placement for
Eliana Martinez, in the least restricted appropriate
educational setting.

Based on the finding of fact and conclusions of law, the Court
ordered that Eliana be placed in the Trainable Mentally Handi
capped (hereinafter TMH) classroom of Manhattan Elementary
School under certain "conditions, limitations, and
restrictions, to be strictly adhered to by all parties and
subject to the review of this Court."  The conditions imposed
by the Court included the construction of a separate glass room
in which Eliana was to attend school only so long as she
remained incontinent and continued to mouth her fingers.
despite instruction to the contrary.

At the point she became potty trained and no longer mouthed her
fingers she was to be removed from the constructed room and
placed in the general TMH classroom. Upon entering the general
classroom. Eliana was to be provided a full-time aide to assist
in the education of the child, to maintain a reasonable
separation of other children and Eliana, and to assist in the
control of accidental spillage of bodily fluids in the case of
an emergency.  The order contained two further restrictions: 1)
Eliana was restricted from the integrated classroom at anytime
she has open sores or lesions, either on the body or in the
mouth and 2) if a question of the advisability of the child
being in the integrated classroom arose, the school nurse was
to be consulted.

Plaintiff originally appeared to be prepared to accept this
Court's imposed conditions and restrictions for attendance in
the TMH classroom.  Defendant, therefore, constructed the room
required by the Court's order.  However, on August 16, 1988,
Plaintiff filed a notice of appeal to the Eleventh Circuit
Court of Appeals. The order of August 8, 1988, was stayed and
Eliana remained in homebound instruction pending resolution of
the appeal.

The appellate court's opinion vacating and remanding the cause
was issued December 1,1988, 861 F.2d 1502. That court found
that, in determining a case pursuant to the Education of the
Handicapped Act (EHA) in conjunction with Section 504 of the
Rehabilitation Act of 1973 (Section 504), the Court must first
determine the most appropriate educational placement for the
handicapped child that has an infectious disease under the EHA.
Then, the question is whether the child is otherwise qualified
pursuant to Section 504 to be educated in that setting despite
the communicable disease. If the child is not otherwise quali
fied, the final question for the court is whether reasonable
accommodations could reduce the risk of transmission so as to
make the child otherwise qualified to be educated in that
setting.

The Eleventh Circuit opinion stated the following relative to
the issues they expostulated:

1.   As the parties agreed, the appropriate educational
placement for Eliana under the EHA would be the regular TMH
classroom if she did not suffer from AIDS.

2.   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 TMH classroom.

3.   The court below made no findings with respect to the
overall risk of transmission from all bodily substances
including blood in the saliva, to which other children might be
exposed in the TMH classroom.

4.   [W]e remand with directions that the trial court made
findings as to the overall risk of transmission so that it can
determine whether Eliana is otherwise qualified to attend
classes in the TMH classroom.

5.   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.

6.   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 minimum,
re late to the effect of the proposed remedy on her (Eliana's)
psychological and educational development.

Based on the remand from the appellate court, this Court, on
January 10, 1989, reopened the case and ordered that the
parties submit, by affidavit, deposition or otherwise, such
additional evidence as they deem necessary to the Court's
consideration of the effect of any contemplated accommodation.

Various affidavits and depositions have been filed in response
to this Court's order of January, 1989. The Court has reviewed
all of the submissions made since the remand order. The Court
finds that the following findings of fact are relevant to the
decision of the educational placement of Eliana Martinez:

1.   The American Academy of Pediatrics' Redbook contained the
following recommendation at the time of the trial and previous
order in this cause:

Some infected students may pose an increased risk to others in
school. Students who lack control of their body secretions, who
display behavior such as biting, or who have open skin sores
which cannot be covered require a more restricted school
environment until more is known about the transmission of the
virus in these circumstances. Arrangements for special
education should be made for children who are unable to attend
regular classes.  (Emphasis supplied).

2.   The revised AAP Redbook, the 1988 edition, has amended
that recommendation as follows:

Some infected students may pose an increased risk to others in
school. Students who display biting behavior or who have
exudative, weeping skin sores that cannot be covered require a
more restricted school environment until more is known about
the transmission of the virus in these circumstances.  Special
education should be provided for children who are unable to
attend regular school classes.

The American Academy of Pediatrics has thereby eliminated the
recommendation that children who cannot control their bodily
secretions should be placed in a more restricted environment.

3.   The Center for Disease Control (hereinafter CDC)'s June
24, 1988, update states:

Universal precautions do not apply to feces, nasal secretion,
sputum, sweat, tears, urine and vomitus unless they contain
visible blood.  The risk of transmission of HIV and HBV from
these fluids and materials is extremely low or non existent.

4.   At trial Dr. Russell, one of Eliana's treating physicians
at the University of South Florida, stated he felt Eliana
should be set apart from other children by six (6) to eight (8)
feet and there would have to be a guarantee that there would be
no contact between children and no contact between bodily
secretions.

5.   In his most recent testimony, Dr. Russell has receded from
that position. Dr. Russell stated that his testimony about the
separation of the children was probably more for his comfort
than for the degree of risk involved. The doctor now states
that the risk is so low statistically that he doesn't feel the
risk warrants such precautions.  Dr. Russell would still feel
better if an aide was assigned to Eliana, as he feels the risk
is greater that Eliana will contract something from another
child that will
kill her than any risk to another child from her.  (Dr. Russell
deposition of January 13, 1989).

6.   At the time of the trial and first order, Eliana was
fairly continuously sucking on her fingers.  That behavior is
now controllable. The testimony and evidence now reveals that
Eliana can be instructed to refrain from placing her fingers in
her mouth, that she will obey those instructions, that she has
learned to sign a request to place her fingers in her mouth and
wait for permission to do so, and that the finger sucking is
primarily evident when Eliana is tired, bored or not involved
in the surrounding events. When participating in activities
which are interesting, Eliana does not tend to put her fingers
in her mouth.  (Depositions and affidavits of Rosa Martinez,
Dr. McClowrey, and Peggy Kelly).

7.   Previously, Eliana had not been and was not being potty
trained. Since the August, 1988, order there has toilet
training has been commenced with some success.  Eliana has
become an active participant in the training since about
November or December of last year. Eliana is no longer content
with wearing a soiled or wet diaper. She has started to sign
'toilet ' when the procedure is necessary, she may be in the
process of the act but she has connected the act with the
appropriate response of needing the toilet.  (Deposition and
affidavits of Rosa Martinez, Dr. McClowrey, and Peggy Kelly).

8.   Eliana's thrush will typically follow only a regimen of
broad spectrum antibiotics and is only intermittent. (Dr.
Russell deposition).  There has been no report of visible blood
in Eliana's mouth during an onset of active thrush.  (Affidavit
of Rosa Martinez).

9.   Although she does not believe them necessary, Rosa
Martinez states she is willing to accept a one-on-one aide for
Eliana and is willing to submit Eliana to a daily nurse s
examination to ascertain that school attendance is advisable
that day.

10.  Plaintiff requests that the Court require the school
system to undertake an aggressive and extensive education
program to educate all adults and children involved with Eliana
about AIDS.

The Court in this case, as in any case involving such a
potentially lethal disease, must be cautious, considerate, and
deliberate regarding any decision.  The medical testimony in
this cause is polarized; unfortunately, judicial decisions must
be made before medical science has definitive answers.

This Court's decision in Ray v. The School District of DeSoto
County, 666 F.Supp. 1524 (M.D.Fla.1987), was founded upon one
word: responsibility; responsible conduct of the children and
their families was mandated.  The Court has the obligation to
focus on the concept of responsibility within the parameters of
this case, also.

Voluntary associations at parks, malls, playgrounds, and other
public facilities is a matter of choice; a person may elect to
come, or to go, and, to associate or not to associate as they
may see fit.  In a public school setting, the association is
both involuntary and compulsory; eligible students do not have
a choice. Therefore, the obligation is clear to create an
environment that is reasonably risk-free for all who must
associate with one another.

In the special education classes, these children generally
possess bodies that have some type of handicap that relegates
them to special, involuntary, and compulsory associations.  In
this setting, disease transmission is not a one-way street; a
child may be a sender, and, a receiver.  With AIDS, it is a
lifethreatening delivery. It is the duty of this Court to
determine if the risk of transmission of AIDS to the other
students of the TMH class, or, the risk of transmission of
other diseases to Eliana Martinez requires the exclusion of
Eliana from the classroom, and, if any accommodation would
negate such exclusion if it is otherwise required.

The Court has seriously considered the allegations now being
raised that the risk to Eliana far outweighs any benefit to her
from attending school with other children. This risk is not
unique to Eliana Martinez; the Ray boys faced similar risks in
attending school as do other immune suppressed children,
including children with cancer. The decision must balance the
risk to the child versus the benefit which flows from the
attendance at school.  Keeping this child out of school does
not guarantee her safety and long life; death if it seeks and
takes Eliana may  come  from  various sources which are
available to her without restriction: the park, the mall, or
her home. Upon conscientious consideration of the issue from
all sides, the Court cannot find that the risk is significant
enough to coun terbalance the benefit and rights to this child
inherent in attending school with other children.

Following the Ray precedent of responsible conduct upon the
part of the children and their family, it would appear that sub
stantial compliance with personal hygiene as conditions
precedent in order to interact with other children has been
accomplished. The evidence reveals that Eliana is capable of
being instructed not to suck or mouth her fingers and that she
is well on her way to being fully toilet trained. This
evidence, in conjunction with the previously stated changes in
the testimony of Dr. Russell, whose testimony was a major
factor in the Court's previous decision, and, the changes in
Pediatric Redbook is the basis of the following conclusions of
law:

1.  The appropriate educational placement for Eliana Martinez
under the Education for All Handicapped Children would be the
regular Trainable Mentally Handicapped classroom if she did not
suffer from AIDS.

2.  The possibility of transmission with respect to tears,
saliva, and urine is remote and theoretical and does not rise
to the "significant" risk level that is required to bar Eliana
Martinez from the regular Trainable Mentally Handicapped
classroom.

3.  The evidence does not support a finding that the overall
risk of transmission from all bodily substances, including
blood in the saliva, rises to the "significant" risk level of
requiring this child's exclusion from the classroom. The Court
finds that the previously defined conditions precedent to
integration into the Trainable Mentally Handicapped have been
substantially com plied with by Plaintiff.

4.  The Court finds that Eliana Martinez is "otherwise
qualified" to attend the Trainable Mentally Handicapped
classroom at Manhattan Elementary School, which is the most
appropriate educational setting for this child pursuant to the
EHA.

5.  Since the Court finds Eliana Martinez "otherwise qualified"
to attend this classroom, it is unnecessary for the Court to
consider the effect of any accommodation.

6.  The Court readopts its previous conclusion of law stating
that if there is a question of the advisability of Eliana being
in the classroom on a certain day, the school nurse should be
consulted for an evaluation of either Eliana, or another child,
if the danger may be an infection from another child to Eliana.
It is not necessary for Eliana, nor the rest of the TMH
students, to be seen by the nurse or other health practitioner
on a daily basis to determine if Eliana should be in the
integrated classroom that day.

7.  The Court will require that the Hillsborough County School
Board provide educational programs to the school parent
population, and, student population as far as is practicable,
that will be associated with Eliana Martinez in the classroom,
with the aim of educating and informing them regarding the
realities of AIDS, and, the proper procedures in order to deal
with the situation and minimize the risk of transmission to
others.  In addition a copy of this Order is to be made
available to the public at the office of Manhattan Elementary
School. Accordingly, it is



ORDERED that Defendant The School Board of Hillsborough County,
Florida admit Plaintiff Eliana Martinez to the Trainable
Mentally Handicapped classroom of Manhattan Elementary School
within the parameters of this order.



DONE and ORDERED.