No “Child Find” Obligations in the Absence of Academic Struggles

The Western District of Pennsylvania recently granted partial summary judgment in a school district’s favor in a case arising out of a student’s death.  In Taylor v. the Altoona Area School District, a second grade student died following a massive asthma attack that occurred in the classroom.  The student had a history of asthma problems.  In the three years preceding his death, he was treated in an emergency room or in a hospital a total of 12 times for his asthma.  During the last year of his life, and not including the incident in which he actually died, the student went to the emergency room or the hospital 7 times including a January 18, 2003 occurrence when the student was life-flighted to Pittsburgh following an asthma attack.

The fatal asthma attack occurred on September 24, 2003, following recess.  The teacher stated that she observed that the student was having trouble breathing, and she asked the student whether he wanted to go to the nurse’s office.  At that time, the student was sitting upright and having difficulty breathing.  However, another second-grade student stated that the student requested to go to the school nurse and the teacher said “no, not now” and that the student actually had his head on his desk.  In either case, once it became clear that the student was having a massive asthma attack, both the principal and school nurse were notified, as were emergency personnel at 911.  The student was taken to Altoona Hospital and then life-flighted to Pittsburgh but died four days later.

The student’s mother brought claims against the school district for violations of IDEA, the Rehabilitation Act, the ADA, and Section 1983.  The mother also brought claims against the teacher under Section 1983.  The school district’s summary judgment motion was granted in part and denied in part.

The district court dismissed the IDEA claims.  The court noted that the student had a Section 504 service plan for his asthma and that there was an asthma reaction procedure in place.  However, the student did not have an individualized education plan (IEP).  It was also clear from the record that the student’s parents never attempted to avail themselves of any of the procedural remedies available under the IDEA.  However, the court held that waiver of the exhaustion of the administrative remedies was appropriate in this case because the child had actually died.  It would have been futile for the child’s mother to try to avail herself of the administrative procedures of the IDEA.  The court looked at the merits of the IDEA claim, but held that the IDEA claim was lacking because there was no evidence that the IDEA’s “child find” obligation was triggered.  The student’s academic performance was average, and there was no indication that the student was struggling in any fashion that would have necessitated an IEP.  The fact that the student had disabling asthma was not enough to trigger the school district’s “child find” obligations where there were no commensurate problems with academic performance.

However, the Rehabilitation Act and the ADA claims against the school district were not dismissed.  The court found that the mother’s claims under the Rehabilitation Act and the ADA were based upon the alleged failure to provide a reasonable accommodation of the student’s disability.  In other words, the question was whether the service plan and the asthmatic reaction procedure were sufficient.  The court found that the defendants did not address this question and that there were material facts at issue regarding the plan.  Thus, the court would not dismiss these claims on summary judgment.

Regarding the Section 1983 claims, the  claims were dismissed as to the school district but not as to the teacher.  The court dismissed the Section 1983 claims against the district because it found that there was no pattern, policy, or practice that violated the constitutional rights of the student.  However, the Section 1983 claims were not dismissed against the teacher because the court found that there was an issue of material fact regarding whether the teacher had refused to permit the student to go to the school nurse.  The Section 1983 claims against the teacher were predicated on the state-created danger theory of liability which requires proof that the teacher affirmatively used his or her authority in a way that created a danger to the citizen or that rendered a citizen more vulnerable than had the state not acted at all.  An affirmative act is required.  If the teacher refused to permit the student to go to the school nurse, such action could possibly be an affirmative act under the state-created danger theory. 

While a student’s physical health problems may not warrant an IEP in the absence of academic struggles, districts must ensure that adequate Section 504 action plans are in place to deal with chronic health issues.  In developing the plans, districts should work with parents/guardians, as well as the affected student’s physician and the school nurse, and most importantly, make certain that all those providing educational services to the student are aware of the Section 504 reaction procedures if a medical emergency occurs.