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Appeals Court Affirms Special-Ed. Services Ruling

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The U.S. Court of Appeals for the Fifth Circuit has upheld a lower-court ruling that requires a Texas school district to provide catheterization treatment for a special-education student under the related-services provision of the federal law protecting the educational rights of the handicapped.

Relying primarily on an earlier decision in the case by a panel of judges from the same court, the Fifth Circuit ruled last month that the catheterization treatment--for students who suffer from diseases that prevent them from controlling their urinary function--qualifies as a ''related service" under P.L. 94-142, the Education for All Handicapped Children Act of 1975.

Citing the U.S. Supreme Court ruling in Board of Education of the Hendrick Hudson Central School District v. Rowley, the Fifth Circuit found that the catheterization treatment was a necessary service that permitted the handicapped child to benefit from the educational program.

Moreover, the court found that the Irving Independent School District's refusal to provide the service violated Section 504 of the Rehabilitation Services Act of 1973. Section 504 prohibits discrimination against handicapped individuals in federally funded programs.

The court also ruled that the district and the state board of education, which were the defendants in the case, must pay about $30,000 in attorneys' fees for the plaintiffs.

The suit, Tatro v. State of Texas, was first filed in 1979 by the parents of Amber Tatro, who suffers from spina bifida, a birth defect that affects the spinal cord.

The child's parents had requested that the school district enroll their daughter, who was 3 years old at the time, in a special-education program for preschoolers. The school district agreed and developed an individualized education plan, but then refused to provide the required catheterization treatment.

The district has argued for the past four years that catheterization is not a related service, but a medical treatment, which schools are not required to provide under federal law.

U.S. District Judge Partick Higginbotham agreed with the school district, but the parents appealed that decision in 1980.

In Tatro I, as that case became known when it was appealed, the Fifth Circuit said that the lower court's decision was too narrow. The appeals court established a three-part test for determining eligibility for services in special education.

The court said that the handicapped child must require special education; that the life-support services must be those that someone other than a licensed physician can provide; and that the services must also be needed in order for the handicapped child to benefit from special education.

The case was then sent back to the district court, where Judge Higginbotham, using the criteria established by the appeals court, decided in favor of the parents and ordered the district to provide the catheterization treatment. The school district, however, appealed the lower court's decision.

Despite last month's decision against it, the Irving school district has again asked the Fifth Circuit for a rehearing by the full court. Meanwhile, according to James W. Deatherage, the lawyer for the school district, the catheterization treatment is being provided by a school nurse pending the final outcome of the case.

Although the courts have ruled that the schools must provide catheterization treatment in similar lawsuits--and many school districts have complied--the nation's school boards are opposed to its inclusion under the related services provision of P.L. 94-142.

Gwen Gregory, legal counsel for the National Association of School Boards, said that the organization is concerned not only about catheterization but also other medical procedures that the schools are being required to provide.

"Our position has been that it's an incorrect decision and that the Congress never intended to mandate medical services," Ms. Gregory said. She said that it may be necessary for the Supreme Court to decide the issue.

The Court, however, has refused to hear another case involving catheterization treatment--Scanlon v. Tokarcik--which was decided in U.S. Court of Appeals for the Third Circuit.

In another case involving the federal handicapped law, the U.S. Court of Appeals for the Sixth Circuit ruled last month that states may close schools serving handi-capped students for financial reasons without fear of violating the law.

In reaching its decision, the Sixth Circuit said that P.L. 94-142 does not compel school districts to abandon their authority over the allocation of educational resources as a consequence of their participation in the federal program for the handicapped.

The suit was filed by the parents of handicapped children who were enrolled in Jewel Manor, a treatment center in Jefferson County, Ky., that was closed by the state's department of human resources be-cause of budget problems, according to Robert Chenoweth, the assistant state attorney general representing the state department of education.

In the suit, the parents argued that the schools their children were subsequently assigned to could not provide the educational programs and services offered at Jewel Manor. Mr. Chenoweth said Jewel Manor provided 12 months of schooling, which is not possible at the other schools.

The lawyers for the parents in the case, Tilton v. Jefferson County Board of Education, have petitioned for a rehearing by the full court.

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