The type of suctioning of Eddie's tracheostomy tube that Eddie needs during the bus rides to and from Blair is considered surface suctioning. This procedure is performed by inserting into the tracheostomy tube a soft-plastic catheter, a two inch to three and one-half inch tube, that is attached to the catheter connector (Pl. Ex. 5) which is attached to a suctioning unit mounted onto Eddie's wheelchair. When the thumb-sized vent hole of the catheter connector is covered, a suction is created in the soft-plastic catheter and mucus secretions that have collected on the inside wall of Eddie's tracheostomy tube are suctioned. Deep suctioning of Eddie's tracheostomy tube, unlike the suctioning performed with the soft-plastic catheter, is very rare and is performed only when Eddie is sick, in which case he would not be sent to school.
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.
The bus ride between Eddie's home and Blair takes approximately, on average, twenty minutes but depending on traffic can take up to thirty minutes. Elizabeth Barnes, a LPN, has been the principal person who has accompanied Eddie on the bus to and from Blair since the entry of the temporary restraining order. Ms. Barnes generally suctions Eddie's tracheostomy tube one to three times during the morning transport, unless Eddie is sleeping, and between three to five times on the way home when Eddie is more active and excited due to his daily school day interaction with the other students and staff at Blair. Ms. Barnes, who appears to be a caring and conscientious person, also sings and plays with Eddie during the bus rides. Ms. Barnes could provide health care services for other children, if these children were on the bus with Eddie.
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.
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 education of all children with disabilities, and to assess and assure the effectiveness of efforts to educate children with disabilities.
20 U.S.C. § 1400(c).
The statutory definition of "special education" is:
(16) The term "special education" means specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including--