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S.P. v. Knox County Board of Education

United States District Court, E.D. Tennessee, Knoxville

May 14, 2019

S.P., next friend of M.P., T.P., next friend of M.P., and D.H., next friend of E.E., Plaintiffs,
v.
KNOX COUNTY BOARD OF EDUCATION, KNOX COUNTY, And TENNESSEE DEPARTMENT OF EDUCATION, Defendants.

          POPLIN, JUDGE

          MEMORANDUM AND ORDER

          REEVES, CHIEF UNITED STATES DISTRICT JUDGE.

         Plaintiffs allege that Knox County has a policy and practice of busing children with epilepsy from schools without nurses to schools with nurses for administration of the medication Diastat. Plaintiffs contend this practice violates the Individuals with Disabilities Education Act (IDEA) and incorporated state law, Title II of the Americans with Disabilities Act (ADA), and Section 504 of the Rehabilitation Act. Defendants moved for summary judgment on plaintiffs' claims. The court granted defendant Tennessee Department of Education's (TDOE) motion as to a violation of Tenn. Code Ann. § 49-50-1602 and dismissed the claim on the basis of Eleventh Amendment immunity. In all other respects the motion of TDOE was denied as was the motion for summary judgment filed by Knox County and the Knox County Board of Education (KCBE).

         This matter is back before the court on TDOE's motion for reconsideration.

         I. Positions of the Parties

         A. TDOE

         TDOE asks the court to reconsider its denial of TDOE's motion for summary judgment in which the court found that the IDEA provides a remedy for actions “unrelated to the denial of a free and appropriate public education” (FAPE). TDOE maintains that the IDEA provides no such remedy.

         B. Plaintiffs

         Plaintiffs argue they are using both the incorporated Tennessee law and the zoned preferences of the IDEA to bring an access case and TDOE must enforce the IDEA and incorporated state law concerning zoned school access.

         II. Background

         During the 2015-16 and 2016-17 school years, E.E. and M.P. were enrolled in two different elementary schools in the Knox County school system. Both children were prescribed the anti-seizure medication Diastat. The Knox County Board of Education (KCBE) had in effect a policy that required Diastat to be administered only by a nurse.

         KCBE's 2008 “Health Services Seizure Disorder Protocol” states that “Students with protocol, which requires Diastat rectal medication or oxygen administration, will attend a school (transferred if necessary) where there is a full-time on-site nurse.” The Protocol was updated in 2013, but no change was made to the Diastat administration “transfer if necessary” language. The Protocol was updated for a third time in June of 2016. The mandatory language requiring administration of Diastat by a nurse remained, but the “transfer if necessary” language was removed.

         Plaintiffs allege that KCBE required students with a Diastat prescription to transfer to a school with a full-time nurse if their zoned school was not staffed with a full-time nurse, per the Protocol. Plaintiffs contend this violates Tenn. Code Ann. § 49-50-1602(g)(7): “An LEA [local education agency] shall not assign a student with epilepsy or other seizure disorder to a school other than the school for which the student is zoned . . . because the student has a seizure disorder.” KCBE and Knox County state that if a student with a Diastat prescription is zoned to attend a particular school that does not have a fulltime nurse, they offer the student's parents the opportunity to transfer to a school with a nurse. Alternatively, the school system would transfer a full-time nurse to the zoned school. Plaintiffs respond they were never offered this option.

         Plaintiffs allege that the Tennessee Department of Education (TDOE) knew KCBE had an illegal policy to transfer students with epilepsy to non-zoned schools and permitted it to continue. Plaintiffs claim that TDOE violated its oversight, supervisory, and monitoring authority over KCBE.

         A. Plaintiff M.P.

         M.P. is an eligible child with a “disability” under the IDEA. Due to a neurological impairment, she receives special education through an Individualized Education Plan (IEP). M.P. was scheduled to attend kindergarten at her zoned school, West View Elementary, for the 2016-17 school year. In March 2016, prior to the beginning of the school year, an IEP meeting was held for M.P. Her parents did not inform school officials of the Diastat order until after the meeting concluded. Another meeting was planned for May 2016. In April 2016, the principal at Fort Sanders Educational Developmental Center called M.P.'s father about the Diastat prescription. She stated that Diastat required a full-time nurse to be at the school and that West View Elementary did not have a full-time nurse. She further stated that KCBE had a policy where students with Diastat were transferred to a school with a full-time nurse if their zoned school did not have a nurse. She did not say anything about being able to request that a school nurse be installed at West View, just that transfer was required. M.P.'s father examined the 2013 Health Services Protocol, which on its face, was consistent with the principal's explanation. Neither the principal, nor the Protocol, said anything about a student's ability to request that a nurse be provided at West View. M.P.'s father then met with his daughter's neurologist and was advised the risk of ...


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