IRVING INDEPENDENT SCHOOL DIST. v. TATRO

Print this transcript Transcript: 

ORAL ARGUMENT OF JAMES W. DEATHERAGE, ESQ., ON BEHALF OF THE PETITIONER

Chief Justice Warren E. Burger: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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.

Unidentified Justice: 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--

Unidentified Justice: Mr. Deatherage, let me interrupt.

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

James W. Deatherage: --Yes, Justice Blackmun.

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

James W. Deatherage: I have no personal knowledge of that, Justice Blackmun.

She may be.

I know it was one of the... it has been and always has been one of the goals for Amber through occupational therapy and other specialized instruction to... where she can ultimately do that.

Whether or not Friday at school she was able to take care of herself, I have no personal knowledge.

Unidentified Justice: Let me get back to Justice O'Connor's question, because it was going to be mine if she hadn't asked it, and I'm not sure of your answer.

Suppose this were a prescription drug, and it was just a question of the... someone in the school digging it out every four hours and handing it to Amber.

You would say this was not medical treatment.

James W. Deatherage: Under Texas law, Justice Blackmun, I don't think so.

I don't believe so.

There is a distinction.

When the doctor writes a prescription for medication, he writes the prescription directed to the pharmacist to fill this prescription.

He does not direct that prescription to the public school employee and does not delegate to the public school employee the administering of that pill.

That's dedicated to the... the prescription is written to the pharmacy.

The parent may choose to bring the medicine in its original container, under the state statute, and in writing authorize the school employee to give out of that original container that medication in accordance with the label on... on the container.

But in that instance, you see, the employee of the school is making no judgments, forming no judgments, is not exercising any medical judgment in merely removing the capsule and giving it to the student with the consent of the parent, because the prescription is not directed to the school employee.

Unidentified Justice: May I ask a follow up on that question?

Your reply brief has the statute about the immunity from liability if they follow that procedure.

Is it your suggestion that until that statute was passed, it would have been a violation of law for that procedure to have been followed?

James W. Deatherage: The public school employee at that time was subjected individually to claims for damages--

Unidentified Justice: I understand.

Had no immunity from liability.

But assume that there was no negligence, and all the employee did, they didn't follow... there's no statute to protect them... but could not the employee have performed the procedure without doing anything unlawful?

Just without immunity is all.

James W. Deatherage: --That was... yes.

They've done it for years.

Unidentified Justice: But there's no immunity issue in this case, is there?

James W. Deatherage: No, Justice Stevens, there's not.

Under the Texas Medical Practice Act, the district court found a physician may prescribe medical treatment and delegate its performance to a nonlicensed person or institution that he deems qualified subject to control, supervision and adequate monitoring by the physician; that the physician may prescribe the medical treatment to be furnished by the public school if he believes the school has personnel qualified to perform it.

The school employee was found... or the school was found to employ professional nurses that with sufficient training, the court found, the school's nurses are capable of performing the medical treatment, and that when the medical treatment is performed by such nurses in accordance with a valid doctor's prescription, it would not constitute the unlawful practice of medicine.

Until that occurs, the court had found, relying on an amicus brief of the Texas Medical Association attached to its memorandum opinion... opinions, that if the school had provided catheterization without a doctor's prescription valid under Texas law, it would have unlawfully been practicing medicine.

Also, the court found that if these conditions are met, the medical treatment then becomes services provided by a qualified school nurse or other qualified person, which is the definition of school health services under the regulations implementing the Education of All Handicapped Children Act.

Therefore, these are school health services and are therefore related services because also under the regulation they define related services to include school health services, and that's not mentioned in the statute.

The district court, based on these findings, ordered the petitioner to: one, secure the services of sufficiently trained persons to allow a trained doctor to prescribe medical treatment to be furnished by the school, and to modify Amber Tatro's individualized education plan to provide for the medical treatment as prescribed by her personal physician.

The Fifth Circuit--

Unidentified Justice: Mr. Deatherage, is it your position that under the Education for the Handicapped Act that if you're correct and the school does not have to provide CIC in a regular school, do you agree that nevertheless the state must provide then some kind of special, separate school for Amber's education?

James W. Deatherage: --The state and the Irving Independent School District must provide Amber Tatro with a free, appropriate public education as that's defined in the statute, as interpreted by this Court in Rowley; and that may include all gamut of specialized instruction.

It can include instruction in a regular classroom.

It may include resource room instruction.

It may include itinerant instruction.

Whatever the committee of professional school employees, with sufficient parental involvement, can reach as being an appropriate plan to meet Amber's individualized educational needs is their duty, at least to the basic floor of opportunity this Court articulated in Rowley.

Unidentified Justice: Is that likely to cost more than to keep her in the public school and provide CIC?

James W. Deatherage: In relation to the cost of a person to insert and withdraw the catheter two times a day, and if that's the only cost, the catheterization, certainly it probably will.

But that is their obligation under the Act.

The Fifth Circuit on second appeal, feeling constrained by Tatro I, affirmed, which brings us to this Court.

The Education of All Handicapped Children Act was enacted by Congress to assist the states in their efforts to educate handicapped children.

It was enacted to encourage the states to provide more and better programs for handicapped students.

It mandates that the recipient of the funds provide handicapped children such as Amber a free, appropriate public education and an individualized education plan which is to include specialized instruction to meet her unique needs.

The statutory provision in question here is found in Section 1401(17) of the Act.

It defines related services to mean in pertinent part transportation and such developmental, corrective and supportive services, including medical services, as may be required to assist the handicapped child to benefit from special education.

But there is a limitation placed by Congress in its definition as it relates to medical services, and it limits medical services to diagnosis and evaluation only.

The implementing regulations define medical services to mean services of a licensed physician for diagnosis, evaluation of a handicapping condition only.

The question then becomes... has become in the lower courts whether or not clean intermittent catheterization, stipulated to be medical treatment, found by the court to be such, is a school health service... that is, services of a qualified... of a school nurse or a qualified person... or medical service.

Finding that it fits under either classification doesn't answer the question.

The question is did Congress intend that the nature and purpose of a particular procedure that is medical treatment be provided by the states and by the local educational agencies.

And we submit there is nothing in the Act, its legislative history or its stated purpose to reach that conclusion.

Unidentified Justice: Do you suppose we have to look, Mr. Deatherage, at what is a medical service to federal law for defining that for purposes of this Act without regard to how Texas law might treat it?

James W. Deatherage: If I understand your question, Justice O'Connor, at least... yes, I think... I think you must... I think this Court is going to have to look, and all the courts in this area, to some degree to state law in determining perhaps what is medical treatment.

Unidentified Justice: Well, that's my question.

Would we have to decide what is a medical service with reference only to federal law, or do we have to look to state law to determine that?

James W. Deatherage: I submit that is answered by looking to the state plan that is agreed to by the state and the Secretary under the Act, that's called for for the Act, in order for the state to get those... to get the federal funds; that the content of a state plan will address what the state provides as medical services, school health services, which is then agreed to by the Secretary.

Unidentified Justice: Do you think it can vary from state to state then--

James W. Deatherage: Yes, Justice O'Connor.

I think--

Unidentified Justice: --Under the Education for the Handicapped Act?

James W. Deatherage: --I think it does.

Unidentified Justice: The district court, I notice on page 11A of your petition, cited a commentary which indicated that in footnote 12 that it agreed with you; that the statute tolerated state-to-state variance.

James W. Deatherage: Yes, Justice Rehnquist.

That's included in the cites of part of the implementing regulations.

Unidentified Justice: Do you think the statute also admits school district to school district variations, depending upon the personnel that are available?

James W. Deatherage: Justice O'Connor, I don't see how that could apply, because the state is the one that enters into the contract with the federal government, and a part of that state contract is they require the local school district to... applying for funds to adhere to the provisions of a state plan.

So I... I don't believe... I can't envision a situation or a set of circumstances in which one school district is not required to provide certain services and another school district is within the same state.

Thank you.

Chief Justice Warren E. Burger: We'll resume here at 1:00, counsel.

Mr. Todd, you may proceed whenever you're ready.

ORAL ARGUMENT OF JAMES C. TODD, ESQ., ON BEHALF OF THE RESPONDENT

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

The true issue of this case before the Court is one of access to public education; more specifically, whether an eight-year old girl of normal intelligence who is capable of doing schoolwork in regular public elementary school will be able to attend class in a regular public elementary school alongside her nonhandicapped age group peers.

If she is to receive a free public education in the public schools, it's been found as a fact that she must be provided the safe, simple, quick, effective and inexpensive service of clean intermittent catherization.

As was brought out this morning in questioning by Justices O'Connor and Blackmun, the service of clean intermittent catheterization is closely analogous to the dispensing of medication by school personnel during the school day to permit a handicapped child to attend school.

And that service, even the petitioners concede, is not medical treatment within the meaning of the Act.

For example, an orthopedically handicapped child who suffers arthritic pain may have his physician prescribe for him aspirin at regular intervals during the school day.

Without the provision of that medication, the pain that is a symptom of his handicap may prevent him from participating in a public education.

With the provision of the medication, the child has access to a free public education.

A similar analogy would be the child disabled by the handicap of epilepsy whose physician prescribes anti-seizure medication during the school day.

Unidentified Justice: What if you had a pupil who had a lower back disk problem or a cervical disk problem and had to be in traction periodically?

Would you think traction would be required as a related--

James C. Todd: Probably not, Your Honor, in that the traction would actually remove the child from the public educational setting, so that this would not be a service.

Unidentified Justice: --You could have some kinds of traction right in the classroom.

James C. Todd: Riqht.

Well, the... to the extent that medical equipment... equipment is involved, the school district would not be required to provide the equipment, just as it is not required to provide the catheter in this case, and just as it is not required to provide, for example, a hearing aid.

However, the school district would have to make some accommodations so that a... a child who is in traction, and if there are not other reasons to remove him, would be able to attend and participate.

I think that the... what makes the catheterization so analogous to the type of service we talked about this morning is that although it is prescribed by a physician, it is actually delivered quite easily by nonmedical school personnel.

And although it can be said to treat a health-related symptom of the handicap, it is a service that's needed to enable the child to have access to the public education.

Unidentified Justice: Well, I didn't understand from your colleague on the other side that under Texas law that a nonmedical person would be allowed to administer... to perform the CIC.

James C. Todd: Oh, under Texas law it's quite permissible, and as a matter of fact--

Unidentified Justice: I don't mean a doctor.

I mean how about a nurse?

James C. Todd: --Well, or even someone other than a nurse such as the aide.

Unidentified Justice: Well, my question really is will the school have to employ somebody that they ordinarily wouldn't employ in order to carry out this procedure?

James C. Todd: No, Your Honor, they would not.

As a matter of fact, the--

Unidentified Justice: Well, what if they did?

James C. Todd: --Well, they could choose to.

They could choose--

Unidentified Justice: I know.

What if it were... what if they... what if under the law or in their judgment in order to carry out this procedure they would have to hire an additional person that they wouldn't ordinarily do?

James C. Todd: --That would still not offend the Act, Your Honor, in that if you'll notice--

Unidentified Justice: Well, would the Act require them to do that?

James C. Todd: --Yes.

And, for example--

Unidentified Justice: Even though it wouldn't require them to buy a piece of equipment like a catheter.

James C. Todd: --Right.

And the example I wanted to give you, the Act specifically requires physical therapy, occupational therapy, speech pathologists and audiologists, and then it states that state standards must determine the qualifications of these individuals.

A licensed physical therapist is the person who must provide physical therapy.

In the past, school districts were not required to hire physical therapists.

Now they are.

This is something that Congress recognized needed to be done.

It was... it was discussed and considered that one of the implications of the Education of the Handicapped, as amended, is that school districts would be doing things they had not done in the past and would be hiring certain types of personnel.

One type of personnel they don't have to hire is a physician, but we haven't asked them to do that.

The... the... the service of catheterization, it has to be remembered, is so simple, it's so simple that a person of average intelligence can be trained to do it in about 30 minutes.

Unidentified Justice: Have you ever been catheterized?

James C. Todd: I never have, Your Honor.

The--

Unidentified Justice: And it's so simple?

James C. Todd: --Well, I'm relying upon the record and the testimony of the people who have at least been engaged in providing it.

For example, it's undisputed in the evidence that almost certainly and probably very soon Amber will be able to provide this service herself, possibly--

Unidentified Justice: I asked your opposition whether at her now more advanced age she is able to do this herself.

James C. Todd: --She's not quite able to do all the steps, but she's very close.

She can actually do the insertion, for example; and it's not inconceivable that this summer she may even be able to do it.

So that at base, what the petitioner's claim comes down to is that a service which an eight-year old handicapped child can... can do is so complicated, so burdensome, so expensive that a... and so medical that a school district shouldn't be required to do it.

Surely this is not among the greater burdens that a school district will ever be required by the Education of the Handicapped Act to incur.

Unidentified Justice: Don't we have to decide this case on the assumption that the entire procedure must be performed by someone else?

James C. Todd: Yes, Your Honor.

That... that she needs adult assistance in the sense that, for example, obviously it's clear from the record that clean intermittent catheterization functions as a substitute for voluntary urination.

No child could attend school throughout a school day without provisions made for certain normal bodily functions like eating, like toilet--

Unidentified Justice: Do Texas schools provide a nurse for every school, or do they have a visiting nurse that moves around from one to another?

James C. Todd: --It varies... it varies from... from district to district.

But the... the--

Unidentified Justice: Well, if there were a school nurse in the building, that would solve the problem, wouldn't it?

James C. Todd: --If... well, actually the problem wouldn't even be there unless you assume that a school nurse has to do it.

But certainly if there is a school nurse present and... and it's preferred that a nurse do it... certainly a nurse is among those who can... then that makes it much easier.

Other arrangements... because it is such a simple service, we're not facing the type of situation as, for example, school districts where there is a shortage of physical therapy personnel.

It's... it's unquestionable in the Act that they have to provide physical therapy to those children who need it in order to benefit from education, and there are arrangements for the state to assist local districts who don't have the resources themselves.

But we're not even faced with that problem here because we're dealing with a service, and even the... which even the amicus brief which is attached as an appendix to the district court opinion that was by the Dallas Medical Society and the Texas Medical Association, recognized that average lay people with a minimum of training can provide this service.

It's... it's not one that requires highly technical training, highly specialized credentials or a great deal of trouble.

Unidentified Justice: But would this not mean that that person, after training, would be required to be there at least five hours a day?

Is that the school day in Texas?

James C. Todd: Well, probably--

Unidentified Justice: Five or six hours a day.

James C. Todd: --Within range.

Certainly available.

There should be somebody who will be available at the times needed.

There is some variation.

This is why it's so much more feasible for the... for the school district to employ personnel to do it and why in many cases it... it just simply can't be done unless the school provides personnel to do it.

And if it's not done, the child doesn't go to school.

And this is what must be balanced.

Whenever examining whatever burden it's concluded this service imposes on the school district--

Unidentified Justice: Well, from what you just said, Mr. Todd, then would your answer to Justice White's earlier question... does the school district have to hire someone who would not have to be hired without this provision... wouldn't that be yes?

James C. Todd: --No, it does not have to hire someone.

I think the answer would be no.

The aide or the teacher--

Unidentified Justice: Who... whom do they use?

James C. Todd: --There are adults present in the school environment.

They could choose to, if they--

Unidentified Justice: You mean make the teacher leave the class or what?

James C. Todd: --Or aide.

There are classroom... one of the provisions under the Act is that there be classroom aides to assist handicapped children to be in... in regular classrooms.

The preference in the Act is wherever it can be done, handicapped children be educated alongside nonhandicapped children.

One way of facilitating that is that there are classroom aides who assist the teacher; and since we're only talking about a small amount of time, the aide could... I think it could be feasibly arranged... there are certainly more difficult arrangements in other cases that have to be made... for an adult already present in the educational environment to assist Amber with this.

Now, if it should turn out that the only feasible way to do it is to hire an additional person, the additional person that's hired does not have to be a highly specialized, i.e., expensive, person to hire.

And there's... just the fact of having to hire additional personnel does not offend the Act because of--

Unidentified Justice: Mr. Todd, did you stipulate that it's a medical service?

James C. Todd: --It was stipulated that it can be called a medical treatment, and if I could, I would like to address that.

One of the things that's led to so much misunderstanding is the assumption that the word "medical" has a fixed meaning from one context to another, and I'd like to give you an example.

In the Education of the Handicapped Act, medical service is defined not to include physical therapy, occupational therapy, speech pathology, audiology, psychologic services.

Now, in another act of Congress, the Medicaid statute, 42 U.S. Code 1396 and the sections following, those very same services, by name, are defined as medical services.

So it's obvious that Congress is not using the word "medical" with as much scope in each situation.

And it was the task of the Department of Education to determine in the first instance where to draw the line.

And I think what the Department did was to balance two policies that are clear in the Act.

One is the policy of nonexclusion, or as this Court pointed out in the Board of Education v. Rowley case, the inclusion into public school of previously excluded handicapped children.

On the other hand, balanced against that was that strictly medical services are not included in the array of related services.

And the way they drew the line was to define medical services as the services of a licensed physician.

That protects the school district from the most expensive type of medical services they might be called upon to provide and--

Unidentified Justice: But you stipulated that it was such a service?

James C. Todd: --That it can be... it's... it was... well, I didn't do the stipulation, but it was stipulated that it's medical in the sense that a physician prescribes it for medical reasons, but that... just as a physician might prescribe physical therapy, for example, for a medical treatment purpose, for example, the prevention of the atrophy of muscle tissue.

But that would not exclude it as a service that is also needed during school hours to enable the child to be educated.

We're not asking here that a school district cure the child of the handicap.

And so the amount of catheterization that Amber happens to receive during the school day would not by itself be enough to accomplish the complete medical purpose, because she still needs it elsewhere.

But it is what she needs in order to be present in class.

The related services include those supportive services which are needed to assist the child to benefit from education; and this Court in the Rowley case stressed educational benefit as the crux of an appropriate education.

It's clear from the--

Unidentified Justice: Is there also a requirement that it not be an undue burden on the state?

James C. Todd: --Yes... well, there is the requirement discerned by this Court in the Southeastern Community College v. Davis case concerning Section 504 that the accommodations... that a state cannot be required to undertake undue burden in order to accommodate someone who's not an otherwise qualified handicapped individual.

However, in this case, Amber is... clearly falls within the definition of an otherwise qualified handicapped individual.

She meets all the requirements that are needed to qualify a child or make a child eligible for a free public education.

Given that, there are some accommodations that need to be made to permit her access to public school.

Here--

Unidentified Justice: But under the Act, not medical services.

James C. Todd: --Right.

As used in the Act.

And this has been the... right.

As medical services are treated in the Act... and remember again that medical services is defined... is used in such a way that it doesn't include physical things like physical therapy, which usually requires a doctor's prescription; occupational therapy, which in some states requires a doctor's prescription; audiology, some of whose functions require a physician's prescription.

And exercising its discretion as the executive agency charged with implementing the statute, the Department of Health, Education and Welfare, looking at the total situation, drew the line at physician-provided services.

Unidentified Justice: Is that the current definition?

And at the present time has the Department of Education focused specifically on CIC to define whether that is or is not a medical service?

James C. Todd: The Department of Education considered... considered excluding clean intermittent catheterization, or at least they took up the question of whether or not it should be, because it was receiving a lot of discussion.

There's a passage from the most recent Department of Education commentary on this point that's quoted in part, in part by the petitioner's reply brief.

The very next sentence of that passage, which is not included in the petitioner's reply brief, states that

"Clean intermittent catheterization will continue to be a service for which a state can be reimbursed under the Education of the Handicapped Act. "

So the Department of Education has not made any definitive ruling to exclude it.

They've considered the question, they've heard a lot of arguments on both sides just as this Court is hearing, but there is no policy ruling that excludes it.

Unidentified Justice: Do you think your... the case is over if we agree with you that this is not a medical service?

Isn't there still a... isn't there still an argument that the kind of supportive services that the... supportive services covered by the related services provision are services connected with the learning process?

Well, I think that the answer to the first question is no... is I don't believe the case is completely over, but I do think that when you go through the analysis of what a related service is supposed to do, it still supports the decision of the district and circuit court.

The statute requires those supportive services that are needed to assist the child to benefit from education, and I think there are three ways that have been identified.

Of course, you wouldn't... if you're right, they wouldn't needed to have listed transportation at all, would they?

James C. Todd: Well, I think they were listing those as... as examples.

Unidentified Justice: Well, they only listed one... one specific supportive service.

James C. Todd: Well, they listed... they gave an example.

They gave a limited set of examples.

If you take seriously the requirement that the school districts are going to meet the unique needs of handicapped children on an individualized basis, it has to be recognized that in 1975 Congress couldn't have listed all the services that might have been provided.

Unidentified Justice: No.

I agree.

James C. Todd: They gave an illustrative list.

And if the... if I can, I think there are three ways that I can discuss in which this service is needed to assist Amber to benefit from special education.

Congress clearly envisioned a number of types of educational benefit.

One, of course, is the benefit of an academic instruction in the classroom; and we've discussed how this is needed in order to get Amber to the classroom and allow her to remain there, just as physical therapy might work with a child's mobility so that a child can move from room to room or so that a child can get into a desk and get out of it.

But there's another important educational benefit to which Congress attached at least as much importance, and that's the benefit derived from just being in that classroom with nonhandicapped children, with sharing the normal educational experience in public schools that shapes most people and prepares them for independent life in the community.

That's a key benefit, and so much stress is laid on it in both the legislative history and the key words of the Act that it's clear that... in fact, it even goes so far as to say that a child is not to be denied that benefit unless it just can't be provided, even with the use of supplementary aids and services.

So that the only children who should be removed from this normal educational experience are those whose special instructional needs are so complex and so special that they can only be provided in an environment that's separate.

But here there's no question but that the type of instruction that Amber can benefit from, not to mention the extracurricular activities that the National School Board Association amicus referred to, all the attributes of normal public school experience, that for Amber the type of instruction needed is precisely the kind that can be provided in a regular public school setting.

And for that reason, the Act mandates that she be given a service, especially a service as simple as this, which in a certain amount of time she'll even be able to do for herself.

Unidentified Justice: What if you had a paraplegic patient?

James C. Todd: Excuse me?

Unidentified Justice: A paraplegic pupil.

James C. Todd: Right.

Unidentified Justice: And it required a wheelchair with a special lift onto a bus or car.

James C. Todd: Yes.

Unidentified Justice: And then assistance in leaving at the time when he arrived at the school.

Would that all be covered by transportation?

James C. Todd: It is covered.

And while we're on the subject of wheelchair, let me recall a very important example that's given in the legislative history by both the principal co-author of Section 504, Senator Humphrey, and one of the major co-authors of the Education for All Handicapped Children Act, Senator Stafford.

They gave the example of a building that's architecturally inaccessible, and said... each of them said it's still discrimination not to do something, even if... whether it's a ramp or whether it's adult assistance to go and get the child and bring the child up; that for a school district... a school district is still violating both acts by failing to extend that additional service needed to overcome this obstacle.

Now, in Amber's case, the obstacle is different, but it's an obstacle posed by the handicap; that is, to get through a school day she needs adult assistance with her toileting function.

If she receives that adult assistance, which involves a very small amount of time and trouble, then she can share with other children the public school experience that Congress wanted to make available to the maximum extent practicable to handicapped children.

If she doesn't receive the service, then she can't be there.

And the cost... it was brought out in questioning this morning, I believe by Justice O'Connor, as to the disparity in cost between excluding her and segregating her from the regular public school system.

I'd like to say that the cost is not only in terms of the extra amount of dollars which the taxpayers have to pay to support her in this expensive private school; there's a cost in frustrating the intent of Congress.

Congress made the judgment that the... whatever additional burdens are required to admit handicapped children and integrate them into the normal public school experience is more than offset by the savings in that by being part of this normal experience, which is social as well as instructional, they are better prepared to be independent in later life, which means that for the rest of their lives they don't have to be paid, for example, supplemental security income, or they don't have to be paid as much; they don't have to be institutionalized; they don't have to have as many adults or as many publicly paid caretakers to assist them.

And this also is... it's a policy judgment Congress made, for better or for worse.

Looking at that policy and trying to judge the facts of this case in terms of it, it's clear that... I think, that the balance should be struck in favor of Amber to provide this service, allow her to participate, and that this falls well within the meaning of the Act, especially as illuminated by the regulations involved.

And it also is a reasonable accommodation under the nondiscrimination against the handicapped statute.

Unidentified Justice: Is there an issue here about... about a violation under another statute?

James C. Todd: Yes, Your Honor.

The courts below also found a violation under Section 504 of the Rehabilitation--

Unidentified Justice: And you defend that?

James C. Todd: --Yes, sir.

It's the... it... the Section 504 prohibits discrimination on the basis of handicap against a qualified handicapped individual by recipients of federal financial assistance.

And it was stipulated that these... that this school district does receive federal financial assistance for its special education program.

Amber is an otherwise qualified individual.

All she needs to be to be otherwise qualified at a preschool or elementary school level is that she's of the proper age and in the jurisdiction of the school district.

Unidentified Justice: Didn't our Davis case pretty much say there was... there was no affirmative action requirement?

James C. Todd: Your Honor, the Davis case did address the question of affirmative action, but in that case you had a college student seeking to have the standards of admission altered so that she could qualify for a program that she didn't qualify for.

Here, you have the... the public secondary and elementary context, and we're not asking for the lowering of standards.

Congress, at the elementary and secondary level, has already made the judgment, and state laws have already made the judgment that it's a free public... that everyone should have access to it.

So it's not a question of lowering standards in order to enable people who were not otherwise qualified to become qualified, as has been sometimes the issue in some of the affirmative action cases dealt with by this Court--

Unidentified Justice: I think Davis goes a little further than that, indicating that it's a question of not discriminating rather than providing special services.

James C. Todd: --Right.

Unidentified Justice: And I think the argument... I think that your argument is much stronger under the first act than it is under this act.

James C. Todd: Well, if... if... the Davis case went on to say that technological advances can bring about services which can accommodate the needs of the handicapped at no undue burden.

And I think this case is a very good illustration of just such a service.

Its predecessor, sterile catheterization, was burdensome and somewhat expensive.

The technology has produced a service which is very easy, which even a ten-year old child can do, and which makes all the difference in the world to the... to the child's acceptance and admission.

And the legislative history covered not only the kind of overt discrimination when you put up a sign that say no handicapped need apply, but it also covered this example of failure to remove barriers that prevent an otherwise qualified handicapped person from admission.

However, as to whether... as to which basis relief is grounded on, obviously our primary concern is that Amber receive the service and that she be enabled to participate in public school and receive this education.

Unidentified Justice: Would you just automatically say that anything that violates... that because it violated the Education Act that it violates Section 504?

James C. Todd: I wouldn't automatically say that, no, Your Honor.

There are some--

Unidentified Justice: Well, then, you... you... you... you think you could have just proceeded under 504 alone.

James C. Todd: --Or under--

Unidentified Justice: And... and would have won.

James C. Todd: --Under Education of the Handicapped Act alone also.

Either... I think that that... and there are cases sometimes where the plaintiffs choose to go under one or the other.

Here, the plaintiffs, you know, sought relief under every statute that might--

Unidentified Justice: Well, has... has it been held that... that the Education of the Handicapped Act is not exclusive?

I know that the lower court here held that.

James C. Todd: --Right.

I believe this Court recently heard arguments on that point.

The--

Unidentified Justice: Do you think... and do you anticipate that that case may settle this particular issue?

James C. Todd: --Well, it could.

If you ruled that the Education of the Handicapped Act preempts 504, then that would settle that.

However--

Unidentified Justice: It preempts attorney's fees, too, then.

James C. Todd: --Well, that would... that would certainly be a consequence.

I may say this, although I don't know in what detail you want me to argue the preemption issue, if you look at the legislative history--

Unidentified Justice: Well, it's just a question of how worried you are about it.

[Laughter]

James C. Todd: --It's a long story.

Actually, it's someone else's fees that are at stake.

[Laughter]

Chief Justice Warren E. Burger: And the fact that you have three minutes left.

James C. Todd: Okay.

Thank you, Your Honor.

I think that I can just summarize by going back to the original point.

This is really an access case.

This is a case that poses the question of whether a child who's capable of doing schoolwork in the public schools, who's entitled by law, will be given the simple and safe and inexpensive service that will permit her access and prevent her exclusion and segregation.

Thank you.

Chief Justice Warren E. Burger: Do you have anything further, Mr. Deatherage?

ORAL ARGUMENT OF JAMES W. DEATHERAGE, ESQ., ON BEHALF OF THE PETITIONER -- REBUTTAL

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

Let me answer one issue or, as counsel says, the only issue, and that is access.

If I read this Court's opinion in Rowley and if I read the intent and purpose of the Education of the Handicapped Act, it is... I don't find any... anything... any authority to say that it's to guarantee access to any particular, specific class, program or activity.

But as I believe this Court said in Rowley, it is access to special education and to an appropriate public education.

The underlying theory or philosophy of the Education of the Handicapped Act, in addition to its purpose of providing for early identification, proper evaluation and appropriate placement, is the individualization of an education plan for a child.

And as Rowley again said, I believe in footnote 4 of that opinion, Congress recognized that not all children are going to be able to be safely educated in what is referred to as the least restrictive environment.

It recognizes the health and safety conditions of a child.

So to characterize the issue in this case as access to a particular classroom is to disregard a record made in this case since June of 1979 which has been always, until counsel's brief, whether or not medical treatment required to be prescribed by a private physician is mandated by Congress to be provided as a related service by the public schools.

That is the issue.

Unidentified Justice: Well, I suppose... I suppose, Counsel, that physical therapy can often be by... on prescription of a physician and nonetheless required to be provided by the public school under the Education for the Handicapped Act.

James W. Deatherage: Yes, Justice O'Connor, it may be, depending on the doctor's purpose in the prescription and to the degree whether it's related to benefitting from special education.

But to merely prescribe a particular physical therapy may or may not in a given case fall within the requirements of the Education of the Handicapped Act.

Further, the recitation of physical therapy in the statute doesn't have the limiting language volume as medical services does, which says except for diagnosis and evaluation only.

As to what other courts deal with the extent or parameters of physical therapy, I would not represent to this Court today.

But certainly, there would appear on the face of the statute exceptions, and there are in the state plan.

Another issue or a matter to keep... that's involved in this case is remembering what qualified Amber for special education under the Act in the first place.

That was an orthopedic impairment.

That is what entitled her to special education.

The medical treatment prescribed by the doctor in this case is for treatment of a condition completely unrelated to what qualifies her for special education.

And there's never been a dispute in that in this case, and in fact, that has been stipulated to as to the orthopedic impairment, and that the neurogenic bladder to which this case is designed is not related to that.

Under the court's reasoning below, whatever--

Unidentified Justice: Is it your position that a child with the spina bifida condition cannot qualify as a handicapped child under the Act?

James W. Deatherage: --No, Justice O'Connor, I'm not saying it cannot qualify.

I only say the record in this case indicates that only the orthopedic impairment with some speech impairment is what qualified.

In another case it very well could, in a more severe case.

Unidentified Justice: May I ask what the orthopedic impairment was?

There seems to be a great mystery about it?

James W. Deatherage: Developmental delays in gross and fine motor skills, which is why the physical therapy was designed for the improvement of gross motor skills, so the child can benefit from special education, can participate in physical activities, i.e., physical education classes offered by the school district; occupational therapy designed to develop and improve fine motor skills in which Amber was developmentally delayed, so she can grasp a pencil to write, so some day she can learn to grasp a catheter and take care of her own self.

Unidentified Justice: Well, we've had comments all through the argument about an orthopedic impairment, and no one ever said what it was.

Because it seemed to me we're talking basically about a urological problem, and urology and orthopedics are somewhat different.

James W. Deatherage: Correct, Justice Blackmun.

And my point is that the urology problem is not what qualifies her for special education, but is what the respondent seeks the medical treatment for.

Unidentified Justice: Well, to the extent this case turns on whether... whether under state law administering CIC is a medical service, aren't we... aren't we entitled to rely on the court of appeals for that?

James W. Deatherage: Justice White, let me answer it this way.

As I said in my opening argument, the history of this case has been a battle as between whether this is a medical service or whether it is a school health service.

We submit to the Court that the question is whether or not this medical treatment is required.

It's not who may be qualified to perform it under either the federal act or the state act.

It is the nature and purpose of the treatment.

Unidentified Justice: Well, so let's suppose that it was... that you just agreed that this was not a medical service within the... within the meaning of... of the... of the Act.

It was not medical service.

Then would you concede that this is a... another supportive service?

James W. Deatherage: If the fact situation in another case were different, Justice White--

Unidentified Justice: Well, no.

For this case.

James W. Deatherage: --In this case I cannot concede that, because the district court found that the school could not lawfully provide this treatment without a doctor's prescription.

Unidentified Justice: Well, I know, but the court... that may be true, but the court of appeals nevertheless said it was not a medical service within the meaning of the Education for the Handicapped Act, didn't it?

And that nothing in state law made it so.

It had to hold that.

James W. Deatherage: The court of appeals had no facts and did not have the facts that this Court has before it now.

It had no record.

But in that regard, Justice Goldberg in the Tatro I opinion in his three-pronged test in dealing whether a life support system is a related service, said that excluded from the term "related services" are those health-related activities which must be performed by a licensed physician that are not provided to determine a child's medically related handicapping condition which results in the child's need for special education.

By looking at Texas Medical Association brief requested by the trial court, made a part of its memorandum opinion, page 25 and 6 of our brief are listed numerous services of a licensed physician that are required in this case in order for the school district to provide what is prescribed.

And we have listed some seven or eight Texas Medical Association--

So by... under the Fifth Circuit's own reasoning and its exclusion, in this case this medical record falls within that exclusion, because it requires the services of a licensed physician.

Under the reasoning of this... of this case and of the courts below, whether the treatment prescribed by the doctor is simple or complex, whether it is costly or cheap, will have to be provided by the public school, whether that treatment might be sterile catheterization, which prior to CIC was considered the treatment of choice.

If a doctor, who may not be knowledgeable of the current standard of practice, prescribes sterile catheterization or another procedure to empty the bladder called purveying the bladder, and delegates that treatment to the school, under the reasoning of the courts below, the school will have to provide it or will have to challenge that prescribing physician over his standard of medical practice.

They'll either have to do it or be subjected to having knowledge it's not the current treatment of choice and yet going on and doing what the doctor prescribed.

Unidentified Justice: Are you... are you confident that you're not asking us to disagree with the court of appeals on a matter of Texas law?

James W. Deatherage: I'm sorry, Justice White.

Am I comfortable or--

Unidentified Justice: Are you confident that you are not asking us to disagree with the court of appeals on a matter of Texas law, strictly Texas law, about Texas doctors and medicine and things like that?

James W. Deatherage: --Justice White, I'm not asking you to disagree with the interpretation of Texas law.

The district court looked to the Texas Medical Practices Act to answer the question.

Our position is it should have looked to the state plan approved by the Secretary to answer the question.

Chief Justice Warren E. Burger: Your time has expired.

Thank you, gentlemen.

The case is submitted.

We'll hear arguments next in Davis against Scherer.