9:54am

Tue February 21, 2012
Education

Diabetic Boy v Scott County Schools

An ongoing dispute between a second-grader at Anne Mason Elementary School and the Scott County Board of Education is emerging as an issue with potential national implications, pitting the board against the U.S. government and the American Diabetes Association. The case involves a 7-year-old, fitted with an insulin pump, who wants to attend school with his siblings and friends at Eastern Elementary.

The Scott County School District insists the boy attend Anne Mason Elementary, where a full-time school nurse is assigned and can make daily adjustments to the insulin pump, based on the amount of carbohydrates in each day’s lunch.

The family argues that non-medical school personnel at Eastern can be trained to adjust the insulin pump.

“We’re dealing with a medical condition that is regularly treated by not-medically trained parents, siblings, grandparents and other regular people,” said Alan Yatvin, a Philadelphia, Pa., attorney who volunteers with the American Diabetes Association legal team.

But the National School Boards Association and the Kentucky School Boards Association say a victory by the family could require school districts across the nation to employ caregivers for disabled children in neighborhood schools at enormous expense.

“We believe that districts, in complying with federal law ... need to be able to determine locally which services can be provided to every school in the district,” said Brad Hughes, spokesman for the KSBA.

Scott County Superintendent Patricia Putty declined comment Wednesday, saying it is a pending lawsuit. She referred the News-Graphic to board attorney Robert Chenoweth.

“We obviously believe there is that aspect to this case,” Chenoweth said, referring to the national and state school boards associations’ argument.

The case is spelled out in a suit filed in U.S. District Court in Lexington in 2009. The suit claimed the district violated the child’s civil rights under the Americans with Disabilities Act, the 14th Amendment and state law.

The News-Graphic is not identifying the child to protect his privacy.

Federal District Judge Joseph M. Hood ruled in favor of the school district in December 2010, but the family appealed the case to the federal Sixth District Court of Appeals.

Last summer, friend-of-the-court briefs were filed by the U.S. departments of Justice and Education and the ADA offering support to the family. In October, the National School Boards Association and the Kentucky School Boards Association filed a brief supporting the Scott County Board.

The government’s brief said Judge Hood erred by not applying proper legal standards on whether the school district complied with the Americans with Disabilities Act. The judge also failed to apply standards that require it to obey federal law even if it might violate state law, the brief states.

The ADA’s brief argues the type of care the boy’s insulin pump needs does not require a registered nurse.

No date has been set for the appellate court’s review.

The case began in 2009, when the boy’s parents learned he has Type 1 diabetes. His parents planned to enroll him in kindergarten at Eastern, but school district officials assigned him to Anne Mason because he needed daily insulin injections by a nurse.

That December, doctors fitted the boy with an insulin pump. The boy attended Anne Mason through kindergarten, but the discussion renewed after he had been fitted with the insulin pump.

The parents asked the school district to reassign him to Eastern and to train non-medical personnel at the school on how to adjust the insulin pump to offset carbohydrates in each day’s lunch.

The school district refused, expressing concern about liability issues and a state Board of Nursing opinion that a nurse should adjust the pump.

The family responded by filing its suit in the U.S. District Court for the Eastern District of Kentucky in Lexington.

Hood agreed with the district’s position and dismissed the family’s suit in December 2010. The next month, the family filed its appeal.

One point of contention in the case involves a section of Kentucky state law governing health care in schools. The section requires health services be provided by a licensed physician; an advanced practical registered nurse, registered nurse or licensed practical nurse; or “a school employee who is delegated responsibility to perform the health service by a physician, advanced practical registered nurse or registered nurse.”

In addition, the section requires that the designated school employee be trained by the delegating physician or delegating nurse for the specific health service, and be approved in writing by that doctor or nurse.

The section also provides protection from lawsuits to the designated school employee under federal law unless clear and convincing evidence shows harm was caused by the employee that “constitutes negligence, willful or criminal misconduct or a conscious, flagrant indifference to the rights and safety of the individual harmed.”

In their brief, the National and Kentucky school boards associations site that section of law as mandating “that all insulin injections and carbohydrate counting done in public schools be performed by a licensed nurse.”

The brief cites information from the federal Bureau of Labor Statistics that indicates registered nurses earn from $51,640 to $76,570 a year.

“The cost of hiring additional nurses would be staggering and put an unnecessary financial strain on public school district,” the brief states.

In remarks about the case, NSBA Executive Director Anne L. Bryant said, “School districts routinely place students with similar special needs in one location where personnel qualified to address the particular need are employed. This is done to create economies of scale that permit districts to ensure that the needs of children with disabilities receive services from the limited number of qualified, professional staff members available in the district.

“This case threatens the common practice of deploying the district’s resources in a manner that is both fiscally responsible and educationally sound.”

But the ADA’s Yatvin noted that this case is not trying to force school districts to place medical personnel in every school. 

Bryant, he said, “is painting with a very broad brush.”

The case involves this particular second-grader, whose insulin pump can be adjusted by trained, non-medical personnel who already are at the school, he said.

Bryant’s statement “lumps all kids with disabilities into one box, while the law requires school districts to make individualized assessments of children with disabilities in determining their appropriate program and placement,” Yatvin said.

“It may be the case that some children, with certain disabilities, might not be able to receive the services they need in their neighborhood school, but those decisions need to be made on an individualized basis,” he said.

“They’re altering that child’s life for what we believe is an unnecessary reason,” Yatvin said.