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SKELLY v. BROOKFIELD LAGRANGE PARK SCH. DIST. 95

June 27, 1997

JEANETTE AND EDWARD SKELLY, JR., Individually, and as Parents and Guardians of EDDIE SKELLY, a minor, Plaintiffs,
v.
THE BROOKFIELD LAGRANGE PARK SCHOOL DISTRICT 95, Defendants.



The opinion of the court was delivered by: HOLDERMAN

 JAMES F. HOLDERMAN, District Judge:

 Plaintiffs, Jeanette Skelly and Edward Skelly, Jr., are the parents of Eddie Skelly, a four-year old boy who suffers from a rare neurological-muscular disease know as Pelizaeus-Merzbacher Leukodystrophy (referred to by the parties as "PMD"). As a result of his disease, Eddie is a developmentally delayed, disabled child. He requires a wheelchair, has a gastrointestinal tube ("G-tube") and has a tracheostomy tube which was put in place in January 1996. Before the placement of the tracheostomy tube, Eddie suffered from seizures. The tracheostomy tube is not used by Eddie for breathing but is used to keep Eddie's airway clear. Eddie's primary doctor, Dr. James Raettig, described that it is used "for pulmonary toilet." (Dr. Raettig Dep. at 11.) To keep Eddie's tracheostomy tube clear, it is periodically necessary to suction the pulmonary secretions that collect inside the tube. This suctioning is a common tracheostomy tube maintenance procedure and is performed by a person using a small, soft-plastic catheter connector similar to Plaintiffs' Exhibit 5. The connector is attached to a small vacuum-creating suctioning unit that has been provided for Eddie by his family and mounted onto Eddie's wheelchair. Eddie himself cannot operate, at this time, the tracheostomy suctioning equipment on his wheelchair.

 Eddie has not been hospitalized since the January 1996 placement of his tracheostomy tube. His tracheostomy tube has stabilized his condition and he lives with his parents and sixteen-year old sister, Jacqueline Skelly, in Brookfield, a Chicago suburb. Eddie's home is located within the boundaries of defendant Brookfield LaGrange Park School District 95 of Cook County, Illinois ("District 95"). All parties agree that Eddie is a child entitled to a "free appropriate public education" within the meaning of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (the "IDEA").

 On April 1, 1997, as a result of Level I and Level II Hearing and Review Officers' administrative decisions and after a multidisciplinary conference, Eddie began daily school attendance at Blair Early Childhood Center ("Blair"), a public school operated by the Chicago Public Schools for students who are physically disabled or medically fragile. Prior to April 1, 1997, Eddie's education was provided at his home by District 95. District 95 has filed an appeal to the Circuit Court of Cook County, Illinois from the Level II decision placing Eddie at Blair. For approximately the first two weeks of Eddie's attendance at Blair, his mother, Jeanette Skelly, accompanied him on the school bus provided by District 95 during Eddie's daily trips to and from Blair. Because Mrs. Skelly suffers from multiple sclerosis, it is difficult for her to continue this regime. Eddie's father's work schedule as an accountant does not permit him to travel on a regular basis on the bus with Eddie and Eddie's older sister attends high school near the Skelly home so she cannot make the daily trips with Eddie to and from Blair.

 On April 21, 1997, plaintiffs brought this civil action in this court pursuant to 20 U.S.C. § 1415(e)(2), see Dell v. Board of Educ., Township High Sch. Dist. 113, 32 F.3d 1053, 1055 (7th Cir. 1994), as parties aggrieved: (1) by the Level II Review Officer's findings affirming the Level I determination that tracheostomy suctioning is a "medical" service *fn1" excluded under the IDEA, and (2) by District 95's interpretation of the Level II Review Officer's decision regarding the "transportation services" District 95 is obligated to provide Eddie. More specifically, as to this second point, District 95 contended that any suctioning of Eddie's tracheostomy tube during Eddie's bus rides to and from Blair, if not performed by a member of Eddie's family, had to be performed by a licensed practical nurse and constituted a "medical" service that District 95 was not obligated to provide under the IDEA.

 The Level II Review Officer's opinion addressed the second point as follows:

 
The only question then is whether the care necessary for Eddie's tracheostomy amounts to the provision of a private duty nurse. The evidence suggests that his medical needs at the present time can be met by the school nurses and classroom aides at Blair School. Those needs are not beyond the competence of existing staff. Nor are they unduly expensive since additional nursing personnel would not have to be hired. As the Parents argue, meeting Eddie's needs at Blair School would not entail the provision of excluded "medical" services. Accordingly, the services required to care for Eddie at Blair, being "supportive" within the regulatory definition and not being excluded, are "related services" for which the District would be responsible if Eddie were placed there.

 (Adm. Rec. at 1491-92 (footnotes in original).)

 The footnotes accompanying the above text in the Level II Review Officer's opinion are as follows:

 
The G tube feeding is not a "medical" service. It is not life threatening if not promptly attended. It comes at regularly scheduled intervals and can be accomplished by a school nurse, even at Brook Park.
 
The District vehemently argues that a "medical" service cannot be magically transformed into a non-medical service simply by moving the child. However, the cases which it has cited suggest differently. If a private duty nurse need not be provided at a more fully staffed location, what was excluded now becomes included. The hiring of a single "one-on-one" nurse not the amount of the expenses makes the service unduly burdensome. Lesser services are not.
 
Transportation is, by definition, a related service. Its expense is irrelevant to this decision. Moreover, it may be partly reimbursable. Since an aide to accompany Eddie during transportation need not be solely devoted to monitoring him, but could monitor other children at the same time, it is part of the transportation service.

 (Adm. Rec. at 1492.)

 District 95 has refused, absent a court order, to provide the services of a one-on-one licensed nurse during Eddie's rides to and from Blair arguing that such services are excluded "medical" services under the IDEA. Eddie's primary physician Dr. Raettig testified that the aide who rides the school bus with Eddie does not have to be a one-on-one licensed nurse. District 95 offered the testimony of nurses who were associated with either District 95 or Blair. There nurses testified to their beliefs that Eddie's tracheostomy tube suctioning, during the bus rides to and from Blair, required the services of a nurse. No physician testified in support of District 95's position. Plaintiffs agree with Dr. Raettig's position and are not asking that the aide who rides the bus with Eddie be a licensed nurse but merely that the aide be a competent adult who has been adequately trained by a member of Eddie's family on how to suction Eddie's tracheostomy tube.

 Upon plaintiffs' request, this court entered a temporary restraining order that required District 95 to "provide a competent adult to address any emergency as any adult would for any child to ride the school bus twice a day to and from Blair School with Eddie Skelly." (Apr. 28, 1997 Order, P 2.) The court, thereafter, conducted a multi-day evidentiary hearing as to plaintiffs' request for a preliminary injunction while, with the parties' consent, the temporary restraining order remained in effect. The temporary restraining order also has remained in effect to allow counsel time to file and the court to review post-hearing briefs.

 Before the court and ready for decision is plaintiffs' request for relief that District 95 be primarily enjoined from further non-compliance with the IDEA. The singular issue before the court is whether the suctioning of Eddie's tracheostomy tube, when necessary, during the bus rides between Eddie's home and Blair is excluded as a "medical" service from the definition of the term "related services" defined in 20 U.S.C. § 1401(a)(17) which District 95 is statutorily obligated to provide Eddie Skelly under the IDEA.

 FACTUAL FINDINGS

 The sources of the facts upon which the court is relying include the administrative record, the evidentiary hearing testimony, the documents introduced at the evidentiary hearing, as well as the videotaped deposition of Dr. James A. Raettig, who has been Eddie Skelly's primary physician since 1994. Not all of the facts in dispute between the parties in this litigation are pertinent to the court's determination of the narrow issue raised by plaintiffs' request for preliminary injunctive relief.

 Eddie Skelly was born on April 8, 1993. At approximately the age of one year, Eddie was diagnosed with PMD, a rare neurological-muscular disorder that impairs communication as well as ambulation. In October 1995, Eddie began to experience seizures. In December 1995, Eddie began to use medication to control the seizures. On January 31, 1996, Eddie had a tracheoscopy operation during which a tracheostomy tube was placed in Eddie's upper trachea to serve as a means to assist Eddie in removing mucus and pulmonary secretions to keep his windpipe clear. Eddie does not use the tracheostomy tube to breath. Eddie has had no seizures since mid-February 1996. His condition has stabilized. Because Eddie has difficulty swallowing, he also has a gastrointestinal tube, referred to as a "G-tube," which allows Eddie's nourishment to by-pass his esophagus and be introduced directly into his gastrointestinal system. The G-tube feeding takes one to three minutes.

 Developmentally, Eddie is delayed but is very interactive, alert, and loves interaction with other people. He is motivated by other children and enjoys being with other children. Educationally and emotionally, Eddie has made remarkable progress during the past few months he has attended Blair.

 Eddie's parents, grandmother, sister, aunt, and a family friend provide care for Eddie, including G-tube care and tracheostomy tube care, at his home. None of these people who care for Eddie at his home have had any formal nursing training. Eddie's mother testified that it takes only a matter of minutes to train someone to take care of Eddie's needs. Eddie coughs up most of the pulmonary secretions in his tracheostomy tube himself. His tracheostomy tube suctioning is used mainly as an aid to help Eddie bring up and clear mucus. There are many times when all that is necessary is simply for someone to wipe off the top of the tracheostomy tube. When Eddie is sleeping, he does not need suctioning. When Eddie is active or excited, he needs more frequent suctioning than when he is sedentary.

 On two occasions prior to his tracheoscopy operation on January 31, 1996, Eddie had a mucus plug, which means that mucus was lodged in his airway and was either too thick or too heavy for Eddie to cough out on his own. Since the placement of his tracheostomy tube, Eddie has suffered no mucus plugs. Eddie has never pulled out the tracheostomy tube, nor has it ever come out as a result of Eddie's activity. Since the placement of his tracheostomy tube in January 1996, Eddie has always been able to cough up his secretions to aid the suctioning of his tracheostomy tube. Eddie has had no respiratory distress since the placement of the tracheostomy tube.

 The ability of any person to learn to suction a tracheostomy tube does not require medical licensure. It only requires some training which, as Dr. Raettig testified, would best be provided to the trainee by Eddie's family members. Suctioning of Eddie's tracheostomy tube, especially the type of brief suctioning that Eddie may need during the bus rides to and from Blair, is a maintenance procedure and is not an invasive procedure. Suctioning takes, at most, one or two minutes and does not require any additional equipment beyond the equipment that travels with Eddie on his wheelchair which has been provided by his family. During Eddie's bus ride to and from Blair, Eddie needs a properly trained aide to accompany him, but that aide need not be a Registered Nurse ("RN") or a Licensed Practical Nurse ("LPN"). On occasion during Eddie's rides on the bus, he does not need suctioning. For example, on April 29, 1997, the first day after this court entered the temporary restraining order, when Eddie's mother rode the school bus with District 95's nurse, Mrs. Shirley Ziemmer, Eddie did not require any suctioning. If an emergency ever arose during one of Eddie's bus rides to and from Blair or Eddie needed a doctor, there is an emergency plan in place established by Dr. Raettig. That emergency plan is for paramedics be called and for Eddie be taken to Loyola Hospital which is a near by suburban hospital with which Dr. Raettig is affiliated.

 Each school day, once Eddie arrives at Blair he is required to wear a thermal vent or vent cap, similar to Plaintiffs' Exhibit 10, on the outer opening of his tracheostomy tube. This vent cap is used at Blair by all the children who have tracheostomy tubes for hygienic purposes; to avoid their secretions from being transmitted to others if they were to cough so hard that the secretions in their respective tracheostomy tubes were to be expelled out the top of the tube. The vent cap makes it somewhat more difficult for Eddie to clear his pulmonary secretions. This increases the frequency of the suctioning needed to clear the secreted pulmonary mucus from Eddie's tracheostomy tube while he is at Blair but is easily suctioned by the staff at Blair. Eddie does not wear the vent cap during the bus rides to and from Blair.

 Currently, Eddie is the only child who uses the bus route that takes Eddie to and from Blair. Eddie's needs during these bus rides do not preclude other children from taking that bus. Eddie does not need one-on-one or private duty nursing care during the bus rides to and from Blair. Any aide assigned to that bus route could be assigned to observe and, if needed, provide care to other children using that bus route.

 There are four children at Blair, in addition to Eddie, who have tracheostomy tubes and G-tubes. Two of these children, unlike Eddie, are ventilator dependant. These two children require one-on-one attendants. The other two children at Blair who have tracheostomy tubes and G-tubes and who, like Eddie, are not ventilator dependent do not require one-on-one care at Blair.

 During Eddie's approximately two months at Blair, he has had primarily one-on-one nursing service. Ms. Thelma Watson, the school nurse at Blair, believes that Eddie needs one-on-one nursing service during the school day. Dr. Raettig, however, does not believe that Eddie needs one-on-one nursing service at Blair.

 DISCUSSION

 I. Federal Statutory and Regulatory Law

 The Individuals with Disabilities Education Act (IDEA), which amended the Education of the Handicapped Act, was enacted in 1990 for the congressional purpose articulated in the IDEA:

 
(c) It is the purpose of this chapter to assure that all children with disabilities have available to them, within the time periods specified in section 1412(2)(B) of this title [primarily between the ages of three and eighteen], a free appropriate public education which emphasizes special education and related services designed to meet their unique needs, to assure that the rights of children with disabilities and their parents or guardians are protected, to assist States and localities to provide for the ...

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