DOCUMENT RESUME

ED 249 755 EC 170 867

TITLE T. 43 Independent School District, Petitioner v.He Tatro, at Us., Individually and as Next Friendof Amber Tatro, a Minor. On Writ of Certiorari to theUnit .4 States Court of Appeals for the Fifth Circiut.No. td-558.

INSTITUTION Supreme Court of the U. S., Washington, D.C.PUB DATE 5 Jul 84N OTE 18p.PUB TYPE Legal/Legislative/Regulatory Materials (090)

E DRS PRICE MF01/iC01 Plus Postage.DESCRIPTORS *Comp iance(Legal); *Court Litigation;

*Disabilities; Elementary Secondary Education;Medical Services

IDENTIFIERS *Catheterization (Urinary); Education for AllHandicapped Children Act; Related Services

ABSTRACTA Supreme Court ruling is presented regarding the

provision of clean intermittent catheterisation as part of relatedservices mandated under P.L. 94-142, the Education for AllHandicapped Children Act. The case argued focused on the neees of ayoung girl with spina bifida for intermittent catheterisation toremove urine from her bladder. The court ruled that suchcatheterization is not a medical service but rather a related serviceunder P.L. 94-142. The court further held that section 504 of theRehabilitation Act of 1973 was not applicable when relief isavailable under the Education of the Handicapped Act to remedy adenial of educational services. (CL)

************************************************************************ Reproductions supplied by EDRS are the best that can be made *

* from the original document. *

***********************************************************************

01PAIMOSOI Of IDSCOTI011SATIONSI INSTITUTE Of IDUCATION

ttnitATOP4444. NISOUPCIS 0114ORMATIONIICP4IFR EfOCI

16fts document "hot own fsproldould OS

fletldwed from Ms godson of OfOodongdiefedy 4

tr SUPREME COURT OF THE UNITED STATE

No. 83-558

Polf of new of opinions Vinod fro WO dOCOmem do Hof odC0lardy ropfsdit "cast Nil0041of, of policy

NOTICE: Thu opinion is subject to fersol towhee* timbrestopiabtleation in Use

pirry print of tho tinned State' liespida. Radom nepleeted tonet* 1omit,tho Swann Court ales United Steak Wash-ington, IL C. MO, of ow typegraphioni other tome! era" is orderthat correetkins may be wade Woo the pi

atediminsry print g to press,

IRVING INDEPENDENT SCHOOL DISTRICT,PETITIONER v. HENRI TATRO, ET ux.,

INDIVIDUALLY AND AS NEXT FRIEND OFAMBER TATRO, A MINOR

ON WRIT.OF CERTIORARI TO THE UNITED STATES COURT OFAPPEALS FOR THE FIFTH CIRCUIT

Vuly 5, 19841

CHIEF JUSTICE BURGER delivered the opinion of theCourt.

We granted certiorari to determine whether the Educationof the Handicapped Act or the Rehabilitates Act of 1973 re-quires a school district to provide a handicapped child withclean intermittent catheterization during school hours.

I

Amber Tatro is an 8-year-old girl born with a defect knownas spina bifida. As a result, she suffers from orthopedic andspEech impairments and a neurogenic bladder, which pre-vents her from emptying her bladder voluntarily. Conse-quently, she must be catheterized every three or four hoursto avoid injury to her kidneys. In accordance with acceptedmedical practice, clean intermittent catheterization (CIC), a

N. procedure involving the insertion of a catheter into the ure-thra to drain the bladder, has been prescribed. The proce-

LN., duce is a simple one that may be performed in a few minutesby a layperson with less than an hour's training. Amber'sparents, babysitter, and teenage brother are all qualified tladminister CIC, and Amber soon will be able to perform thisprocedure herself.

2

2 IRVING INDEPENDENT SCHOOL DIST. n TATRO

In 1979 petitioner Irving Independent School Districtagreed to provide special educatice for Amber, who was thenthree and one -half years old. In consultation with her par-ents, who are respondents here, petitioner developed an indi-vidualized education program for Amber under the require-ments of the Education of the Handicapped Act, 84 Stat. 175,as amended significantly by the Education for All Handi-capped Children Act, of 1975, 89 Stat. 773, 20 U. a C.El 1401(19), 1414(aX5). The individualized education pro-gram provided that Amber would attend early childhooddevelopment classes and receive special services such asphysical and occupational tiwrapy. That program, however,made no provision for school perm:mud to administer CIC.

Respondents unsuccomdkilly pursued administrative reme-dies to secure CIC services for Amber during school, hours.'In October 1979 respondents brought the present action inDistrict Court against petitioner, the State Board of Educe-tion, and others. See I 1415(eX2). They sought an iqiune-tion ordering petitioner to provide Amber with CIC andsought damages and attorney's fees. First, respondents in-voked the Education of the Handicapped Act. BecauseTexas received finding under that statute, petitkner was re-quired to provide Amber with a "free appropriate public edu-

i cation," ft 1412(1), 1414(aXIXCXii), which is defined to in-clude "related services," §1401(18). Respondents arguedthat CIC is one such "related service." Second, respond-

' The Education of the Handicapped Act's procedures for administrativehearings are set out in 20 U. S. C. 111415. In this case a beset* officerruled that the Education of the Handicapped Act did require the school toprovide CIC, and the Texas Cconmiasionsr d Ethastion mapted the Mar-ing officer's decision. The State Board of Education reversed, holdingthat the Act did not require petitkiner to provide CIC.

As discussed more 1Wly later, the Educatim of the Handicapped Actdefines "related services" to include "supprative services (including . .

medical and counselim; services, except that such medical services shall befor diagnostic and evaluation purposes only) as may be required to assist

IRVING INDEPENDENT SCHOOL DIST. v. TATRO 3

ants invoked 1504 of the Rehabilitation Act of 1973, 87 Stat.394, as amended, 29 U. S. C. 1 794, which forbids an individ-ual, by reason of a handicap, to be "excluded from the partici-pation in, be denied the benefits of, or be subjected to dis-crimination under" any program receiving federal aid.

The District Court denied respondents' request for a pre-liminary injunction. Tatra v. Texas, 481 F. Supp. 1224 (NDTex. 1979). That court concluded that CIC was not a "re-lated service" under the Education of the Handicapped Actbecause it did not serve a need arising from the effort to edu-cate. It also held that f 504 of the Rehabilitation Act did notrequire "the setting up of governmental health care for peo-ple seeking to participate" in federally funded programs.Id., at 1229.

The Court of Appeals reversed. Tatra v. Texas, 625 F. 2d557 (CA5 19$0) (Tatra I). First, it held that CIC was a "re-lated service" under the Education of the Handicapped Act,20 U. S. C. 1 1401(17), because without the procedure Ambercould not attend classes and benefit from special education.Second, it held that petitioner's refusal to provide CIC effec-tively excluded her from a federally funded educational pro-gram in violation of 1 504 of the Rehabilitation Act. TheCourt of Appeals remanded for the District Court to developa factual record and apply these legal principles.

On remand petitioner stressed the Education of the Handi-capped Act's explicit provision that "medical services" couldqualify as "related services" only when they served the pur-pose of diagnosis or evaluation. See n. 2, supra. The Dis-trict Court held that under Texas law a nurse or other quali-fied person may administer CIC without engaging in theunauthorized practice of medicine, provided that a doctorprescribes and supervises the procedure. The DistrictCourt then held that, because a doctor was not needed to ad-minister CIC, provision of the procedure was not a "medical

handicapped child to benefit from special education." 20 U. S. C.0 1401(17).

4

4 IRVING INDEPENDENT SCHOOL DIST. u TATRO

service" for purposes of the Education of the HandicappedAct. Finding CIC to be a "related service" under that Act,the District Court ordered petitioner and the State Board ofEducation to modify Amber's individualised education pro-gram to include provision of CIC during school hours. Italso awarded compensatory damages against petitioner.:Tatro v. Texas, 516 F. Supp. 968 (ND Tex. 1981).

On the authority of Tatro I, the Distrkt Court then heldthat respondents had proved a violation of 11504 of the Re-habilitation Act. Although the District Court did not rely onthis holding to authorise any greater injunctive or compensa-tory relief, it did invoke the holding to award attorney's feesagainst petitioner and the State,Board of Educaticm. 516F. Supp., at 968; App. to Pet. for Cert. 55a-63a. The Re-habilitation Act, unlike the Education of the HandicappedAct, authorizes prevailing parties to recover attorney's fees.See 29 U. S. C. 11794a.

The Court of Appeals affirmed. Tatro v. Texas, 703 F. 2d823 (CA5 1983) (Tatro II). That court accepted the DistrictCourt's conclusion that state law permitted qualified personsto administer CIC without the physical pregame of a doctor,and it affirmed the award of relief under the Education of theHandicapped Act. In affirming the award of attorney's feesbased on a finding of liability under the Rehabilitation Act,the Court of Appeals held that no change of cintunstancessince Tatro I justified a different result.

'The Distract Court dismissed the claims against all defendants otherthan petitioner and the Mate Board, though it retained the members of theState Board "In their official capacities kr the purpose of Injunctive relief."515 F. Supp., at 972-974.

'The District Cart held that 1 506 of the Rehabilitation Act, 29U. S. C. 4 794a, which authorizes attorney's fees as a part of a prevailingparty's costs, abrogated the State Board's immunity under the EleventhAmendment. See App. to Pet. for Cert. 56a-60a. The State Board didnot petition for czrtiorari, and the Eleventh Amendment issue is not beforeus.

IRVING INDEPENDENT SCHOOL DIST. a TATRO 5

We granted certiorari, 464 U. & (1W). and we af-firm in part and reverse in part

II

This case poses two separate imues: The first is whetherthe Eduaitim of the Handier Act requires petitionerto provide CIC services to Amber. The seamd is whether

504 of the Rehalilitatkm Act creates such an obligatkm.We first turn to the claim presented under the Education ofthe Handicapped Mt.

States receiving famla under the Act are obliged to satisfycertain conditkms. A Fimaty conditim is that the state im-plement a policly kthat - all handicapped children theright to a free public edileatiOn." 20 U. EL C.*MAO. Fibch educational agency applying to a state for

must provide assurances hr tam that its programto provide "a free appropriate public education to all

children." 1114144X1XCAD.A "free appropriate public education" is explicitly defined

"specbd edwatkm and related services." 41401(18).°The term "special education" means

"specially designed hutruction, at no coat to parents orguardians, to meet the unique needs of a handicappedchild, including classroom indruction, instruction inphysical education, home instruction, and instruction inhospitals and inatitutima." *1401(16).

"Related services" are defined as"transportation, and such developmental, corrective,and other support ive services (including speech path&

"Spedfically, the "Swi! education and related servbses" mustIA) have been provided at public expense, ender while supervhdon anddirection, and without charge, (B) meet the standards of the State educa-tional agency, (C) include an appropriate preschool, elemezdary, or second-a17 aihool education in the bate involved, and (D) NJ Provided ix con-formity with the individusdized education program required under section1414(aX5) of this title." 1401(15).

IRVINE INDEPENDENT SCHOOL DIST. sa TATRO

o and amliology, psychobgied serving, ithysical endoccupational therapy, recreatkm, and medical and anm-saw services, except that such medical services shall befor diagmatic and evaluation pawns on/p) as may bermaired to assist a handicapped child to ben* fromspecial education, and inekubm the early identificationand assesennnt of handicapIgng conditions in children."

I 11401(17) (emphasis added).

The issue in this case is whether CIC is erelated service"that petitioner is obliged to provide to Amber. We mut an-swer two *natio= first, whether CIC Is a "supportive eery-We) . . . required to asabt a handicapped child to benefitfrom special education"; and ascend, whether CIC is excludedfrom this definitkm as a "medical servider serving purposesother than diagnosis or evaluation.

A

The Court of Appeals was clearly correct in holding thatCIC is aNsupprtive servicie] . . . required to moist a handl-capped child to benefit from special education."' It is clearon this record that, without having CIC services availableduring the sclumi day, Amber cannot attend school andthereby "benefit frmn special education." CIC services

Petitimer dabs that courts Amid* ones arising undo. thetine of ti the Hantheapped Ad are Bullied to inquiring whether a school as-trict has followed the repirements of the state plan and Ins followed theAd's procedund requhrements. However, we held in Board of Ethseatioaof' Madrid Hudson Modred School District v. Madam 4511U. 8.176, BAn. 27 (INA tint a court is respired not only to satis0 IWO** the Statehas adopted the state plan, polieles.and assurances required by the Ad,but also to determine that the State bus crested an lindividuanced eduea-den plan) for the child in question which contbrnm with the rewire:nem' of

1401(19) ideality such planar' Judicial review is equity appropriate inthis case, which presents the hIgal question of a school's sabstantive obliga-tion under the *related services' requirement of 1401(17).

IRVING INDEPENPENT SCHOOL DIST. a TATRO 7

therefore fall squarely within the definition of a "supportiveservice." 7

As we have stated before, "Congress sought primarily tomake public education available to handicapped children" and"to make such access meaningful." Board of Education ofHendrick Hudson Central School District v. Rowley, 458U. S. 176, 192 (1982). A service that enables a handicappedchild to remain at school during the day is an importantmeans of providing the child with the meaningful access toeducation that Congress envisioned. The Act makes specificprovision for services, like transportation, for example, thatdo no Inure than enable a child to be physically present inclass, see 20 U. S. C. I 1401(17); and the Act specifically au-thoring grants for schools to alter buildings and equipmentto make them accessible to the handicapped, 111406; see S.Rep. No. 94-168, p. 38 (1975); 121 Cong. Rec. 19483-19484(1975) (remarks of Sen. Stafford). Service; like CIC thatpermit a child to remain at school during the day are no lessrelated to the effort to educate than are services that enablethe child to reach, enter, or exit the school.

We hold that CIC services in this case qualify as a "sup-portive servicle] . . . required to assist a handicapped child tobenefit from special education."'

" I ' l l ; D e p a r t m e n t o f E d u c a t io n h a s a g r e e d w i t h this r e a s o n i n g in an in-terpretive ruling that specifically found CIC to be a "related service." 46Fed. Reg. 4912 (1981). Accord Tokarrik v. Forest Hills School District,666 F. 2d 443 (CM 1981), cert. denied sub nom. Scanlon v. Tokarcik, 468U. S. 1121 (1982). The Secretary twice postponed temporarily the effec-tive date of this interpretive ruling, see 46 Fed. Reg. 12496 (1981); id. at18975, and later postponed it indefinitely, id. at 25614. But the Depart-ment presently does view C1C services as an allowable cost under Part Bof the Act. ibid.

'The obligation to provide special education and related services is ex-pressly phrased as a "conditioinr for a state to receive limb under theAct. See 20 U. S. C. 1412; see also S. Rep. No. 94-168, p. 16 (1975).This refutes petitioner's contention that the Act did not "imposIel anobligatim on the States to spend state money to Itind certain rights as acondition of receiving federal moneys" but "spoke merely in precatory

8 IRVING INDEPENDENT SCHOOL DIST. a TATRO

BWe also agree with the_Cmwt of Appeals that provision of

CIC is not a "medkuil servkiel," which a school is required toprwide only for imposes d diagnosis or evaluatam. See 20U. & C. 1 1401(17). We begin with the regulations of theDepartment of Education, which are entitled to deference.°See, e. g., Mum v. Bacon, 457 U. S. 132, 141 (1985). Theregulations one "related services" for handicapped chil-dren to include "s col health services," 34 CFR 1300.13(a)(1983), which are defined in turn as *services wovided by aqualified scluyal nurse or ether qualified perm," 300.13(b)(10). "Medical services" are defined as "services providedby a licensed physician." 1 310.13(bX4)." Thus, the Secre-tary has determined that the services of a school nurse other-wine qualifying as a "related service" are not subject to exclu-sion as a "medical servize," but that the services of aphysician are excludable as such.

This definition of "medical services" is a reasonable inter-pretation of congressional intent, Although Congress de-voted Kt* discussim to the "medical services" exclusion, theSecretary could reasonably have concluded that it was de-

terms," Peondaunt Slate Scheel and Hospital v. Haldeman, 451 U. S. 1,18 (158U.

"The Secretary of Education is empowered to issue such regWatknis as'nay he necessary to carry out the provisions the Act. 20 U. & C.I 1417(b). This function was initially voted in the Commissioner of Edu-cation of the Department of Health, Education, and Weave, who pronml-gated the regulations in question. This functim was transkiTed to theSecretary of Education when Congress created that position, see Depart-ment of Education Organhatkm Act, fil)301taX1h12XM 9S Stat. 6T1, 20U. S. C. 8441(aX1), (200.

"The regulations actually define only those 'medical services" that areowed to handicapped children: "services provided by a &eased physician todetermine a child's medically related handicapping condition which resultsin the child's need for spechd education and related senicaa." 34 CFR

300.134b84) (11,83). Presumably this means that °medical services" notowed under the statute are those "services by a licensed physician" thatserve other purposes.

9

IRVING INDEPENDENT SCHOOL DIST. u TATRO li

signed to spare schools from an obligation to provide a serv-ice that might well prove unduly expensive and beyond therange of their competence." From this understanding ofcongressional purpose, the Secretary could reasonably haveconcluded that Congress intended to impose the obligation toprovide school nursing services.

Congress plainly required schools to hire various specialtytrained- personnel to help handicapped children, such as"trained occupational therapists, speech therapists, psycholo-gists, social workers and other appropriately trained person-nel." S. Rep. No. 94-1 , supra, at 33. School nurses havelong been a part of the educational system, and the Secretarycould therefore reasonably conclude that school nursing serv-ices are not the sort of burden that Congress intended to ex-clude as a "medical service." By limiting the "medical serv-ices" exclusion to the services of a physician or htIpital, bothfar more expensive, the Secretary has given a permissibleconstruction to the provision.

Petitioner's contrary interpretation of the "Medicokserv-ices" exclusion is unconvincing. In petitioner's view, rm isa "medical service," even though it may be provided by anurse or trained laypersoN that conclusion rests on its read-ing of Texas law that confines CIC to uses in accordance witha physician's prescription and under a physician's ultimate su-pervision. Aside from conflicting with the Secretary's rea-sonable interpretation of congressional intent, however, sucha rule would be anomalous. Nurses in petitioner's schooldistrict are authorized to dispense oral medications and ad-minister emergency injections in accordance with a physi-cian's prescription. This kind of service for nonhandicappedchildren is difficult to distinguish from the provision of CIC to

" Children with serious medical needs are still entitled to an education.For example, the Act specifically ineludeS instruction in hospitals andat hunw within the 'definition of "special education." See 20 U. S. C.1 1001(16).

10 IRVING INDEPENDENT SCHOPL DIET, a TATRO

the handicapped.° It wuukt be strange indeed if Congress,in attempting to extend special services to handicapped chil-dren, were unwilling to guarantee them services of a kindthat are routinely provided to the nonhandimmed.

To keep in perspective the obligation to provide servicesthat relate to both the health and educational needs of handi-capped students, we note several limited= that should min-imise the burden petitioner fears. First, to be entitled to re-lated services, a child must be handicapped so as to requirespecial education. See 20 U. S. C. fl1401(1), 34 CFR *300.5(1983). In the absence of a handicap that requires specialeducation, the need for what otherwise might qualify as a re-lated service does not create an olAigation under the Act.See 34 CFR MO.14, Comma (1) (1983).

Second, only those services necessary to aid a handicappedchild to benefit from special education must be proves, re-gardless how easily a school nurse or layperson could furnishthem. For example, if a particular medication or treatmettmay appropriately be administered to a handicapped childother than during the school day, a school is not required toprovide nursing services to administer it.

Third, the regulations state that school nursing servicesmust be provided only if they can be performed by a nurse or

Petitioner attempts to distinguish the tion of prescriptiondrugs from the administration of CIC on the ground that Texas law ex-pressly limits the liability of school personnel performing the brew, seeTex. Edw. Code Ann. 1121.914(c) (Supp. 19e4), but not the latter. Thisdistinction, however, bears no relation to whether CIC is a *related serv-ice." The introductkor of handicapped children into a mimed creates nu-merous new possibilities for injury and liability. Many of these risks aremore serious than that posed by CIC, which the courts below ibund is asafe procedure even when performed by a 9-year-old girl. Congress as-sumed that states receiving the generoto grants under the Mt were up tothe job of managing those new risks. Whether petitioner deckles to pur-chase more liability insurance or to persuade the state to extend the limita-tion on liability, the risks posed by C1C should not prove to be a largeburden.

IRVING INDEPENDENT SCHOOL DIST. v. TATRO 11

other qualified person, not if they must be performd by aPhysician. See 34 CFR n30013(01 (bX4), (bXIO) (1983).It bears mentioning that here not even the services of a nurseare required; as is conceded, a layperson with minimal train-ing is qualified to provide CIC. See also, e. g., Departmentof Education of Ifasvaii v. Katherine D., wr F. 2d 809 (CA91983).

Finally, we note that respondents are not asking petitionerto provide equipment that Amber needs for CIC. Tr. ofOral Mg. 18-19. They seek only the services of a qualifiedperson at the school.

We conclude that provision of CIC to Amber is not subjectto exclusion as a "medical service," and we affirm the Courtof Appeals' holding that CIC is a ."related service" under theEducation of the Handicapped Act."

IIIRespondents sought relief not only under the Education of

the Handicapped Act but under 11504 of the RehabilitationAct as well. After finding petitioner liable to provide CICunder the former, the District Court proceeded to hold thatpetitioner was similarly liable under *504 and .that respond-ents were therefore entitled to attorney's fees under fi 506 ofthe Rehabilitation Act, 29 U. S. C. * 7944. We hold today,

" We need not address respondents' claim that CIC, In addithm to beinga "related service," is a "supplementary audi and servicier that petitionermust provide to enable Amber to attend classes with nonhandkappedstudents under the Act's "mainstreaming" directive. See 20 U. a C.

1412(5X10. Respondents have not sought an mhr prohlbtting petitionerfrom educating Amber with handkapped &Wren alone. Indeed, any re-quest for such an order might not present a live controversy. Amber'spresent individuaiked education program provides for regular publicschool classes with nonhandicapped children. And petitkmer has admittedthat it would be far more costly to pay for Amber's instruction and CICservices at a private school, or to arrange for home tutoring, than to pro-vide CIC at the regular public school placement provided in her currentindividualized education program. Tr. of Oral Arg. 12.

12

12 IRVING INDEPENDENT SCHOOL MST. tt TAICTO

in Smith v. Robinson, 0. S. (1984), that' O4 is

APP le when relief is available under the Educationof the Handicapped Act to remedy a denial of educationalservices. Respondents are thereftw not entitled to reliefunder 1504, and we reverse the Court of Appeals' holdingthat respondents are entitled to recover attorney's fees. Inall other respects, the judgment of the Court of Appeals isaffirmed.

It is so ordered.

3

SUPREME COURT OF 'TIIE UNITED STATIM

No. 143-658

IRVING INDEPENDENT SCHOOL DISTRICT,PETITIONER HENRI TATRO, sr UX.,

INDIVIDUALLY AND AS NEXT FRIEND ix?AMBER TATRO, A MINOR

ON WRIT OF CERTt TO THE UNITED STATES COURT OFAPPEALS 'TEE nrr CIRCUIT

Pub, 5, 1994]

Awn: BRENNAN, wfth whom Jun= MARSHALL joins,concurring in part and dissenting in part.

I join all but Part III of the Court's opinion. For the rea-sons stated in ray dissenting opinion in Smith v. Robinson,ante, at I would affirm the award of attorney's fees tothe responde;Ita.

14

SUPREME COURT OF THE UNITED STATES

No. WSW

IRVING INDEPENDENT SCHOOL DISTRICT,PETITIONER it HENRI TATRO, ET UX.,

INDIVIDUALLY AND AS NEXT FRIEND OFAMBER TATRO, A MINOR

ON WRIT OF CERTIORARI 'ID THE UNITED STATES COURT OFAPPEALS FOR THE FIFTH CIRCUIT

(July 5 141

JUSTICE STEVENS, concurring in part and dissenting inpart.

The petitkm for certiorari did not challenge the award ofattorney's fees. It contested only the award of relief on themerits to respondents. Inasmuch as the judgment on themerits is supported by the Court's interpretation of the Edu-cation of the Handicapped Act, there is no need to exiaessany opinion concerning the Rehabilitation Act of 1973.*

'The "Statement of the Questions Presented" in the petition for certio-rari reads as follows:

"I. Whether 'medical treatment' such m dean htermittent catheterisa-tion Is erelated service' required under the Education for All HandicappedChildren Act and, there fire, required to be provided to the minorresptmdent.

"2. Is a public school required to provide and perftwm the medical treat-ment prescribed by the physician of a handkapped *Mid by the Educationof All Handicapped Children Act or the Rehabilitation Act of 19121'

"43. Whether the Fifth Circuit Court of Appeals ndsconstrued the win-ions of this Court in Southeastern Community College, Pennhunt StateSchool & Hospital v. Haldeman, and State Board of Education v. Row-ley." Pet. for Cert.

Became the Court does not hold that the Court of Appeals answered anyof these questions incorrectly, it is not justified in reversing in part thejudgment of that court.

15

2 IRVING INDEPENDENT SCHOOL DIST. a TATRO

Accordingly, while I join Parts I and II f the Court's opin-ion, I do not join Part III.

16

4023

NM

(Slip Opinion)

NOTE: Where it al tom, a syllabus (headset.) Ise be released. as isbeing done in cannectien with this mme. at the thee the a is issued.

cuatitstes as_part of tha OPMEMO at the Coed bet has beenhy the Repartee of kr the convenience et the reader. See

v. Dein* Gumbo? Co.. SUS U.S. , W.

SUPREME COURT OF THE UNITED STATE;

Syllabus

IRVING INDEPENDENT SCHOOL DISTRICT v. TATROET UX., INDIVIDUALLY AND AS NEXT FRIENDS

of TATRO, A MINOR

CERTIORARI 10 THE UNITED STATES COURT OF APPEALS FORTHE FIFTH CIRCUIT

No. 83-558. Argued April 16, 1984Decided July 5, 1984

Respondents' 8-year-old daughter was born with a defect known as spinabifida. As a result she suffers from orthopedic and speech impairmentsand a neurogenic bladikr, which prevents her from emptying her blad-der voluntarily. Consequently, she most be catheterized every three or!bur hours to avoid injury to her kidneys. To accomplish this, a proce-dure known as clam intermittent catheterization (CIC) was prescribed.This is a simple procedure that can be performed in a few minutes by alayperson with less than an hour's training. Since petitioner School Dis-trict received federal fondling under the Education of the HandicappedAct it was requind to provide the child with "a free appropriate publiceducation," which is defined in the Act to include "related services,"which are defined in turn to include "supportive services (including . .medical . . . services except that such medical services shall be for di-agnostic and evaluation purposes only) as may be required to assist ahandicapped child to benefit from special education." Pursuant to theAct, petitioner developed an individualized education program for thechild, but the program amide no provision for school personnel to admin-ister CIC. After unsuccesfully pursuing administrative remedies to se-cure CIC services for the child during school hours, respondents broughtan action against petitioner and others in Federal District Court, seekinginjunctive relief, damages, and attorney's fees. Respondents invokedthe Education of the Handicapped Act, arguing that CIC is one of theincluded "related services" under the statutory definition, and also in-yoked if 504 of the Rehabilitation Act of 1973, which forbids a person, byreason of a handicap, to be "excluded from the partkipation in, be deniedthe benefits of, or be subjected to discrimination under" any program re-

114<.

fk3 17kkk

ts IRVING INDEPENDENT SCHOOL DIST. a TATRO

Syllabus

cawing *demi aid. After its initial deubd of relief was reversed* theCourt of Appeals, the District Court, on remand, held that CIC was a"related service" under the Education of the Handlaipped Act, orderedthat the child's education progrmn be modified to hselude parrhdre ofCIC cur thg adiool hours, and awarded compensatory danaages againstpetitioner. The mart farther held that respondents had pr wed a viola-tion of 1150iNd the Rehabilitation Act, and awarded attorney's *es torespondeMs under I506 of that Act. The Court of Appeals affirmed.

Reid:1. CIC is erelated service" under the Education of the Handicapped

Act. Pp. 5711.(a) CIC services quali as a "supportive servide) . required to

assist a child to benefit from rpechd education," wilhth themeaning of the Without CIC services available daring the schoolday, respondents' child aumot attend school and thereby °benefit fromspecial educatkm.' Such services are no less Mated to the effort toeducate than are services that mashie a child to reach, enter, or exit aschool. Pp. 5-7.

Osi The provision of CK: is not subject to exclusion as a "mdicalservke." The Department of Education regulations, which are entitledto deference, define "related services" firr haudicapped children to in-clude 'school health services," which are defined in turn as "services pro-vied by a qualified school nurse or other quelikel person," and define'Medea' services" as "services provided by a licensed physician? Thisdefinition of "medical services" is a mamma* interpretation of congres-aimed intent to exclude physidan's serviees as such and to impose an ob-ligation to provide school =oh* services. Pp. 7-11.

2. Section 504 of the Rehabilitation Act is inapplicable when relief isavailable under the Education of the Handicapped Act to remedy a de-nial d educational services, Smith v Robinson, post, p. and there-fore resprackets are not entitled to any relief under 4 50d, including re-covery of attorney's fees. Pp. 11-12.

703 F. 2d 323, affirmed in part and reversed in part.

BURGER, C. J., delivered the opinion of the Court, in which Mart,BLCKMUN, Powsm, Rionsquise, and O'Cutason, JJ., joined, and in allbut Part III of which BRENNAN, MAMMA., and Bravais, J.1., joined.BRENNAN, J., filed an opinion ensuing in pert and dissenting in part, inwhich MARMiALL, J., joined. Simms, J., filed an opinions concurring inpart and dissenting In part.