Irving Independent School District v. Tatro

PETITIONER: Irving Independent School District
RESPONDENT: Henri Tatro, et ex.
LOCATION: Irving Independent School District

DOCKET NO.: 83-558
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 468 US 883 (1984)
ARGUED: Apr 16, 1984
DECIDED: Jul 05, 1984
GRANTED: Dec 05, 1983

James W. Deatherage - on behalf of the Petitioner
James C. Todd - on behalf of the Respondent

Facts of the case

Henri and Mary Tatro’s three-and-a-half year old daughter Amber had spina bifida. As a result, Amber suffered from a neurogenic bladder, which required the use of a catheter every three or four hours each day to avoid kidney injury. The preferred method of catheterization was called clean intermittent catheterization (CIC). Amber was unable to perform this method herself because of her age, but a layperson could easily learn to perform the procedure.

In 1979, Irving Independent School District agreed to provide special education for Amber as required by the federal Education of the Handicapped Act (EHA). This law required Texas to provide handicapped children with a free public education including ‘related services’. It only required ‘medical services’ for purposes of diagnosis or evaluation. Amber’s individualized education program provided that she would attend early childhood development classes and receive physical and occupational therapy. Her program, however, made no provision for school personnel to administer CIC. The Tatros unsuccessfully pursued administrative remedies to secure CIC services during school hours.

In October 1979, the Tatros filed an action against the district, the Texas State Board of Education, and others. They sought an injunction requiring the district to provide Amber with CIC. They also sought damages and attorneys’ fees through the Rehabilitation Act (RA), which forbade programs receiving federal aid from excluding handicapped people from participation and allowed prevailing parties to recover attorneys’ fees. The district court denied the Tatros' request for a preliminary injunction, concluding that CIC was not a ‘related service’ under the EHA because it did not arise from an effort to educate. The United States Court of Appeals, Fifth Circuit reversed, holding that CIC was indeed a ‘related service’ under the EHA, and remanded the case to the district court. The district court then ruled that CIC was not a ‘medical service’ under the EHA because a doctor was not needed to administer the procedure. It found that CIC was a ‘related service’ and ordered the defendants to modify Amber’s individualized education program accordingly. It also held that the Tatros had proved a violation of the RA. The Fifth Circuit affirmed both holdings.


Was the provision of CIC for a student with a neurogenic bladder a required ‘related service’ under the Education of the Handicapped Act?

If so, could the Tatros seek attorneys’ fees through the Rehabilitation Act although other relief was available under the EHA?

Media for Irving Independent School District v. Tatro

Audio Transcription for Oral Argument - April 16, 1984 in Irving Independent School District v. Tatro

Warren E. Burger:

We'll hear arguments next in Davis against Scherer.

Mr. Deatherage, I think you may proceed whenever you're ready now.

James W. Deatherage:

Mr. Chief Justice, and may it please the Court:

This case is here on writ of certiorari to the court of appeals of the Fifth Circuit.

The battle lines were drawn in this case on the issue of whether or not the Education of All Handicapped Children Act requires public schools to provide and perform medical treatment prescribed by a private physician and delegated to the school as a related service in order for the child to benefit from education, special education, and to receive a free, appropriate public education.

Initially, the plaintiffs, the respondents here, filed an application for preliminary injunction seeking an order from the district court ordering the district, the Irving Independent School District, to provide a medical procedure subsequently stipulated and found to be medical treatment to the respondent, Amber Tatro.

The school district denied the application... I'm sorry... the district court denied the preliminary application for injunction relief and held that the medical treatment requested did not arise from the effort to educate, and that Section 504 of the 1973 Rehabilitation Act could not be converted into a statute requiring the setting up of governmental health care.

Mr. Deatherage, I guess there's some question, is there not, whether this is indeed medical treatment?

James W. Deatherage:

Justice O'Connor, the record reflects there is no question at all.

Ultimately, the plaintiffs stipulated... or the respondents stipulated in the pretrial order found in the joint appendix that clean intermittent catherization, the procedure in question, was medical treatment.

Their physician... Dr. George Hurt, who was one of the co-authors of the document ultimately adopted by the American Medical Association... testified it was the medical treatment of choice of a disease state suffered by Amber; that is, an urgent bladder.

So there's never been a question or a dispute, at least since the administrative hearing, as to whether or not the procedure is medical treatment.

If... if a child had to have some medication administered routinely during the school day in order to remain in school would it be your position that it constitutes medical treatment for someone at the school to administer the medication?

James W. Deatherage:

Under Texas law, Justice O'Connor, I don't believe that is construed as medical treatment by the school employee who gives the medication.

It is medical treatment when the doctor prescribes it so that the parent or the child can go to the pharmacy and obtain the medication.

Well, isn't this the same kind of a thing?

The doctor prescribes it, but it doesn't have to be administered by a physician?

James W. Deatherage:

Whether or not it has to be administered personally by the physician does not take it out of the realm of medical treatment as defined under the Texas Medical Practice Act.

Under that act as amended since trial of this case, the physician... and at the time of trial... the physician may, in accordance with the act and the Board of Medical Examiners rule, prescribe certain medical tasks and delegate them to another party, a third party other than the patient, for performance, such as a scrub nurse in surgery, so long as that physician retains supervision and control of the delegatee and the act to be performed; but it is still medical treatment.

Well, then, is giving medication medical treatment, in your view and in Texas law?

James W. Deatherage:

Prescribing it by the physician is.

There is a specific statute... even if we construe it as being medical treatment, if the school teacher gives what the parent had brought, the pill, in a container... there is a Texas statute attached as an appendix to our reply brief that specifically authorizes the public school employee under certain conditions, if the parent sends the medication in its original container, that allows the schoolteacher to give that child that pill and be immune from civil liability for damages if something adverse happens.

There is no similar statute in Texas that is applicable to this type of procedure involved in this case.

The district court initially, as I related earlier, held that the requested medical treatment did not arise from the effort to educate and that it could not be converted into a statute requiring the setting up of governmental health care under Section 504.

The Fifth Circuit panel initially in Tatro I held that the district court was wrong on both counts and vacated and remanded for further proceedings consistent with what we believe... we believe to be an advisory opinion, since the court acknowledged initially it had no facts before it.

On remand, the district court, feeling constrained by Tatro I, found that the petitioner, the school district, could not lawfully provide the medical treatment under Texas law without additional services of a licensed physician; that under--

Mr. Deatherage, let me interrupt.

The little girl Amber is a good bit older now, isn't she?

James W. Deatherage:

--Yes, Justice Blackmun.

Do you know... maybe I should ask your opposing counsel... is she able herself to administer CIC at this point?