United States District Court, E.D. Kentucky, Central Division, Lexington
R.K., by next friends, J.K. and R.K., Plaintiff,
BOARD OF EDUCATION OF SCOTT COUNTY, KENTUCKY, Defendant.
MEMORANDUM OPINION AND ORDER
JOSEPH M. HOOD, Senior District Judge.
This matter is before the Court on the parties' cross-Motions for Summary Judgment [DE 81, 84]. The matter has been fully briefed by the parties [DE 89, 91, 102, 103] as well as amici curiae, the United States of America [DE 90] and the American Diabetes Association [DE 101]. These motions are now ripe for this Court's review.
This action centers around a diabetic child, R.K., who Defendant the Scott County Board of Education (the "Board") placed in a school other than his neighborhood or "zoned" school because his neighborhood school did not have a full-time nurse on staff. The Board considered it necessary to have a full-time nurse available for R.K. to monitor his glucose levels and administer insulin injections. R.K., through and by his parents J.K. and R.K., as next friends,  brought this suit against the Board, arguing that non-medical personnel should have been trained to monitor R.K. and assist with his insulin injections, thereby allowing R.K. to attend his neighborhood school. Plaintiff argues that by placing him at a location other than his designated neighborhood school, without proper consideration of alternative accommodations at his neighborhood location, the Board violated 29 U.S.C. § 794 (Section 504 of the Rehabilitation Act of 1973), 42 U.S.C. § 12132 (the Americans with Disabilities Act [ADA]), the 14th Amendment to the United States Constitution through 42 U.S.C. § 1983, and Chapter 344.130 of the Kentucky Civil Rights Act. For the reasons stated herein, this Court finds that Defendant is entitled to summary judgment on Plaintiff's claims under the Rehabilitation Act, the ADA, and the 14th Amendment. Genuine issues of material fact exist that preclude the granting of summary judgment for either party as to Plaintiff's claim under the Kentucky Civil Rights Act.
II. Procedural Background
Plaintiff's original Complaint [DE 1] in this matter, dated October 20, 2009, brought claims against Defendants the Board of Education of Scott County, Kentucky, and Patricia Putty, both individually and in her official capacity as Superintendent of the Scott County Schools for compensatory damages, as well as declaratory and injunctive relief for violations of Section 504 of the Rehabilitation Act, the ADA, the 14th Amendment to the United States Constitution through 42 U.S.C. § 1983, and KRS Chapter 344.
Following limited discovery by the parties, Defendants moved for summary judgment. [DE 26]. By Memorandum Opinion and Order [DE 39] entered December 15, 2010, this Court entered summary judgment in favor of Defendants on all claims. A subsequent motion for relief from summary judgment under Federal Rule of Civil Procedure 60 [DE 42] was denied by Memorandum Opinion and Order [DE 45] on May 19, 2011. Plaintiff timely appealed from both orders of this Court.
On August 16, 2012, the United States Court of Appeals for the Sixth Circuit affirmed that portion of the summary judgment which had been granted in favor of Defendant Patricia Putty and no further relief was sought by the Plaintiff against Defendant Putty, thereby eliminating her as a party Defendant. [DE 47]. The Sixth Circuit vacated all remaining portions of the judgment and remanded the matter to this Court for further proceedings, including amendment of the Complaint and further discovery. The Opinion suggested particular topics upon which the parties may have wished to gather additional evidence to assist this Court in considering Plaintiff's claims.
Upon remand, the Amended Complaint [DE 59] included claims relating to the 2010-11 school year and added allegations that the Defendant failed to comply with certain federal regulations. The Amended Complaint asserts claims under Section 504 of the Rehabilitation Act of 1973, the ADA, the 14th Amendment to the United States Constitution through 42 U.S.C. § 1983, and the Kentucky Civil Rights Act. During the renewed discovery period the parties exchanged written discovery and Plaintiff took the deposition of Tony Harrison-a registered nurse and District Health Services Manager for the Scott County Board of Education during much of the relevant time period. These cross-motions for summary judgment followed.
III. Factual Background
R.K. was diagnosed with Type 1 diabetes in June 2008, when he was four (4) years of age. [DE 59 at ID# 452]. In individuals with Type 1 diabetes, the pancreas does not produce sufficient insulin, the hormone that regulates the glucose level in the blood, causing high blood glucose levels. [DE 59 at ID# 452]. Insulin must be injected throughout the day into the body, either through direct injections or an insulin pump, to control glucose levels. [DE 59 at ID# 452].
In March 2009, R.K.'s parents tried to enroll R.K. in kindergarten at his neighborhood school, Eastern Elementary School, located in Scott County, Kentucky. [DE 59 at ID# 453-53; DE 84-4 at ID# 1158]. R.K.'s father, J.K., states in his affidavit that R.K.'s parents chose their home because it was zoned for Eastern Elementary and that R.K.'s friends attended Eastern. [DE 82-2 at ID# 588]. When R.K.'s parents tried to enroll R.K., they informed school personnel of his diagnosis and his need for insulin injections during the day. [DE 59 at ID# 452-53]. They also submitted the "Preventative Health Care Examination Form, " filled out by R.K.'s treating physician, which noted that "[f]or [R.K.'s] diabetes, will require frequent finger stick glucose checks nurse to help with insulin administration." [DE 84-6 at ID# 1166] (emphasis added). At the time of enrollment, R.K.'s insulin was injected through a "pen needle" device. [DE 82-2 at ID# 588]. Insulin dosage is dialed in on the device, which resembles a large ink pen, containing a dial on one end and a needle on the other. Once the needle is inserted in the skin, a button is pressed and insulin is injected into the skin. [DE 82-2 at ID# 588].
J.K., R.K.'s father and a physician practicing internal medicine, states that in April 2009, Jan Sharpe, Director of Child and Family Health Services for Scott County Schools, offered placement for R.K. at Anne Mason or Western Elementary, the only two schools with a full-time nurse available. [DE 82-2 at ID# 588]. R.K.'s parents refused both locations. Id.
A 504 meeting was held on August 6, 2009. [DE 82-2 at ID# 589; DE 82-2 at ID# 596]. In attendance were J.K., Jan Sharpe, Martin Hendrix, who was Scott County's 504 Coordinator, as well as the principals and kindergarten teachers from Eastern Elementary and Anne Mason Elementary schools. [DE 82-2 at ID# 589]. According to J.K.'s affidavit, "[n]o medical records were requested or provided, nor any input from R.K.'s endocrinologist, or any information about R.K.'s control of his diabetes (such as his A1C levels or target ranges)." [DE 82-2 at ID# 589]. J.K. reports that during the meeting, he explained details about R.K.'s diabetes treatment and told the panel that R.K. would be transitioning to a pump in a matter of months. [DE 82-2 at ID# 589].
J.K. confirms that everyone present at the meeting agreed that R.K. met the criteria under § 504 and that a § 504 Individual Accommodation Plan was developed. [DE 82-2 at ID# 602]. The Plan stated that:
Self-care is substantially limiting to [R.K.] when considering at this time the regulation of carbohydrate intake, monitoring of sugar levels and monitoring of activity level. The 504 Committee acknowledges this may change as [R.K.] grows older. In addition, [R.K.] does not self-inject at this time which under self-care is considered substantially limiting.
[DE 84-11 at ID# 1175-76]. The Plan went on to discuss plans for action if R.K.'s blood glucose levels were low, provision of supplies necessary for R.K.'s treatment and advance notice of any food that might be brought in to the school for special occasions. [DE 84-11 at ID# 1175-77]. Based on J.K.'s affidavit, he asked that R.K. be permitted to attend Eastern Elementary while at the meeting. In response "Ms. Sharpe stated that Eastern Elementary placement was not a possibility because an injection for R.K.'s diabetes is solely a nursing function and Scott County did not have a nurse on-site at Eastern Elementary." [DE 82-2 at ID# 590]. According to J.K., he disagreed that injection was "solely a nursing function" and contended that someone could be trained to assist R.K., including some personal friends at Eastern Elementary who had volunteered to help. [DE 82-2 at ID# 591]. Further, he contended that R.K. only needed one shot per day, around lunch, and that a nurse could travel to Eastern Elementary at the lunch hour to assist R.K. [DE 82-2 at ID# 591]. According to J.K., Ms. Sharpe rejected the option of training non-medical personnel at Eastern or allowing a nurse to travel to Eastern at lunch time. [DE 82-2 at ID# 591]. Thus, the 504 meeting on August 9, 2009, concluded without an agreement as to R.K.'s zoned school. [DE 82-2 at ID# 591]. According to J.K., he merely received a fax several days later stating that R.K. was enrolled in Anne Mason Elementary. [DE 82-2 at ID# 591].
By September 2009, R.K. had transitioned to an insulin pump for the administration of insulin. R.K.'s parents renewed their request that he be transferred to his zoned school, Eastern Elementary, now that injections were not required.
Diabetes medical management plans, signed by physicians at the University of Kentucky Pediatric Endocrinology Department, dated August 10, 2009, and September 18, 2009, are also found in the record. [DE 84-12 at ID# 1179]. Both plans state that "[t]he student must be supervised by an adult with dose administration via pump." [DE 84-12 at ID# 1181; DE 84-12 at ID# 1189]. ...