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Overview:
For more than twenty-five years public
school systems here in Virginia and across this nation have been
working hard to provide access to educational opportunities for
students with disabilities. Suffice it to say, one might think
that today’s courts would see fewer cases taken by parents who
claim that their child is not being provided for under either
federal or state law. Such is not the case. To understand why, a
brief look back at the following interrelated factors is
appropriate: (1) the enactment, sustained development, and
consistent enforcement of the very comprehensive Individuals
with Disabilities Education Act (IDEA), and (2) the
rapidly expanding population of school age children with unique
educational needs (many directly linked to an existing
medical condition).
The Education for All
Handicapped Children Act. Following
closely on the heels of the Rehabilitation Act of 1973,
Congress passed, and President Gerald Ford signed into law in
1975, the Education for All Handicapped Children Act (EHCA).
A comprehensive statute, the new law required that all children
with educational disabilities (defined by specific category)
receive a free appropriate public education (FAPE), including
necessary related services, in the least restrictive environment
(LRE). Each student covered by the new law would have an
individualized educational program (IEP) designed to meet the
unique needs of that student. Specified for coverage in the EHCA
were children identified as mentally retarded, learning
disabled, or emotionally disturbed.
During the
late-1970’s, the United States Supreme Court and the courts
below it were busy as parents sought the law’s benefits for
their children. In doing so federal judges were placed in the
position of legitimizing special education in public education
and, at the same time, applying and enforcing EHCA’s mandates in
the states.
As public education
moved through the 1980’s and 1990’s, the term special education
was interpreted as specifically designed instruction to meet the
unique needs of a child with a disability. Over time each state
adopted this definition and included it in law (see, e.g., Code of Virginia 22.1-213, et seq.). In addition,
special education was said to include more than the academic
aspects (i.e., subjects studied) of an educational
program. Nonacademic and extracurricular activities were
included as well. School Board of Collier County, FLA. v K.C.
(2002). What is more, special education had to be provided
at no cost to either the child or the child’s parent(s).
FAPE: What does it mean?
The first major issue area emerging from the early application
of special education law involved the meaning of the free
appropriate public education (FAPE) requirement. In 1982,
however, the United States Supreme Court provided some
clarification. The spirit of the EHCA was met, opined the Court,
when a student receives “some benefit” from his/her educational
program. It was the Court’s view that a “free appropriate public
education” was not synonymous with the “best education;” rather,
the FAPE requirement is solely intended to provide a student
with access to a “basic floor opportunity.” The intent of
the law, said the Supreme Court, is to ensure that each eligible
student receive access to a “meaningful educational
opportunity.” Board of Education v Rowley (1982).
Contemporary courts consistently apply Rowley. In doing
so, they rule that a special education student’s educational
program must be “reasonably calculated to provide educational
benefit, and that IDEA does not require maximizing a student’s
potential.” Coale v Delaware Dept. of Education (2001), and
White v School Board of Henrico County, Va. (2001).
Special Education Law
Expands. The EHCA was retitled the
Individuals with Disabilities Education Act (IDEA) and its
coverage made more comprehensive by Congress, in 1990. IDEA’s
guarantees were extended and made available to growing numbers
of kids (2 to 21 years old) with special needs (many with
related medical conditions) entering the public schools. Covered
by the reauthorized IDEA were children identified as dyslexic,
autistic, traumatic brain injured, attention deficit disordered,
and other health impaired.
In 1997 Congress
once again reauthorized IDEA and made it more comprehensive.
IDEA was expanded to include the following thirteen categories
of disabilities: developmentally handicapped/mental retardation,
hearing impairments, speech or language impairment, visual
impairments, serious emotional disturbance, orthopedic
impairment, autism, traumatic brain injury, other health
impairment, specific learning disability, deaf-blindness, and
multiple disabilities. Congress also made it clear that students
covered by IDEA were not excluded solely because they were
confined to their home, or in an institution (including
correctional institutions), or in a hospital setting, or because
they are homeless. In addition, the reauthorized IDEA required
that eligible students be educated with their general education
counterparts in the general curriculum of a regular school to
the extent practicable. Popson v West Clark Community
Schools (2002) As a general rule this is referred to as the
“mainstream presumption.”
IDEA 1997 also
required school officials to contemplate an evaluation when it
comes to their attention (i.e., receive notice) that a
student “might need” special education and related services.
Such an evaluation may be triggered when a parent expresses a
verbal concern or submits a written request to a school
official, or when a student’s school performance or misbehavior
indicates this to be the case, or when a school staff member
suggests that a student might need special education.
S.W. v Holbrook (2002)
Necessary Related Services.
Beginning in the mid-1980’s and extending through the decade of
the 1990’s, federal and state courts decided a variety of
special education cases. One emerging area of controversy among
several involved the requirement that the expanding population
of children covered by IDEA be provided with necessary
related services. Arlington County, VA v Smith (2002)
Currently, IDEA defines related services as “transportation and
such developmental, corrective, and other services necessary to
assist a student with a disability to benefit from special
education.” 20 U.S.C. 1401(a)(22) Such services, states the law,
must be made available “at no cost to parents.”
By the year 2000, the list of
necessary related services was very comprehensive. For example,
the list included physical and occupational therapy,
psychological services, speech and language pathology, social
work services, counseling services, school health services,
transportation, therapeutic recreation and numerous others.
34 CFR 300.24(a) It is important to note that most
controversies involving parental requests for related services
typically are resolved without going to a court of law. Most are
settled through the IEP process, or through mediation, or
through the due process hearing option of the law.
Emerging Issue:
Excluded
from IDEA’s related services requirement are medical services
(i.e., services solely performed by a licensed physician,
and in some states a nurse practitioner also is included),
except when necessary for “diagnostic or evaluation purposes.”
20 U.S.C. 1401(17) The need to obtain information from
physicians and other outside school system health providers, in
an effort to fully evaluate a student’s needs, has been
emphasized by the courts. J.S. v Shoreline School District
(2002) In this writer’s opinion, however, it is the
medical services exemption of IDEA that currently holds the
most potential for future litigation. The cases presented below
illustrate this point.
Case Law Examples:
The leading
case to reach the United States Supreme Court involving the
medical services exemption of IDEA was Irving ISD
v Tatro (1984). In Tatro, a Texas public school
system already provided special education services to Amber, a
female student with spina bifida. Amber’s IEP (Individualized
Education Program) provided her with attendance in early
childhood development classes and such services as physical and
occupational therapy. However, her IEP made no provision for
school staff to administer a procedure known as clean
intermittent catheterization (CIC), i.e., the
insertion of a catheter into the urethra to drain the bladder.
Amber needed CIC every three or four hours to avoid damage to
her kidneys and also to remain in school. School officials
argued that CIC (1) was a “medical service” and not an
“education-related service,” and (2) was not needed for either
evaluative or diagnostic purposes. The United States Supreme
Court disagreed. The Court held that since CIC (a) could be
done by someone other than a licensed physician, and (b) enabled
Amber to gain access to and remain at school receive the
benefits of the school’s educational opportunities, it was both
a necessary and related educational service within the meaning
of the law. The school system was obligated to provide this
related service.
Neely v Rutherford County (1995) is a decision of the United
States Court of Appeals for the Sixth Circuit. Samantha Neely
was a seven-year-old student in a Tennessee public school
system. She suffered from Congenital Control Hypoventilation
Syndrome, a rare breathing condition. To assist her breathing a
tracheostomy was necessary and had to stay in place at all
times. Additionally, Samantha had to be suctioned because she
could not expel throat, mouth, and nose secretions. Suctioning
also was needed following meals. Unable to care for herself,
especially in emergency situations, Samantha needed the constant
services of a trained nurse. During her first year of school
Samantha’s parents alternatively attended school and cared for
their daughter. Not long after, however, they requested that
the public school system provide either a full-time nurse or a
respiratory care professional. The school system agreed to
revise Samantha’s IEP, but hired a person with a nursing
assistant certification to provide the care. Subsequently
Samantha’s parents filed a lawsuit in federal district court,
where the judge ruled that the services requested by the parents
were not medical. To the trial judge the requested services were
education related; i.e., they were directly related to
and supportive of Samantha’s educational program. On appeal the
trial court was reversed. In the appeals court’s view, the issue
in this case must be decided on the basis of what a state’s
substantive law allows. Tennessee law required that the services
needed by Samantha must be administered by a physician,
registered nurse, licensed practical nurse, respiratory care
specialist, or the patient’s relatives. As such, a school nurse
or other school system personnel could not administer the care
needed. Characterizing the case as involving “private duty,” the
appellate court concluded that asking the school system to hire
and pay a licensed professional would be “financially
burdensome.”
Cedar Rapids Community School District v Garret F. is an
Iowa case decided by the United States Supreme Court, in 1999.
Garret F. was a fifth-grade, quadriplegic student, confined to a
wheelchair, and covered by IDEA. A “responsible person” had to
be available to (among other things) catheterize him at least
once a day, suction his tracheostomy when needed, monitor his
blood pressure and his ventilator, observe him for possible
respiratory distress, and reposition him in his wheelchair.
Garret’s parents had been paying for the services, but decided
to request that the school system provide and pay for the
services. Characterizing the request as one involving continuous
one-on-one nursing, school officials cited the medical
services exemption of IDEA and declined the request.
Garret’s parents took their case to an administrative judge who
saw the services as “health related” and not medical. The school
system next went to a federal district court where a judge
ordered the school system to provide and pay for the services.
On appeal, by school officials, the Eighth Circuit Court of
Appeals affirmed the trial judge. Relying on Tatro (1984)
the appellate court viewed the services as “supportive
and necessary for Garret to benefit from his educational
program.” Citing Iowa law the court held that the school system
had to hire and pay for a registered nurse to provide Garret’s
services. Subsequently, the United States Supreme Court affirmed
the Eighth Circuit by a vote of 7 to 2. Specifically citing
IDEA, the high court saw Garret’s services as both “necessary
and related to assist in his ability to benefit from his
educational program.” Moreover, said the court majority, since
the requested services did not require administration by a
licensed physician the school system has a legal and fiscal
responsibility to provide them.
Two dissenting Justices (Clarence
Thomas and Anthony Kennedy) focused on the difference between
medical services and health services. Public school
officials, said the dissenters, should be obligated to provide
students with health services only. A “school nurse,”
they opined, can deliver such services.
Policy Implications:
Currently, the Individuals with Disabilities Education Act
(IDEA) is once again before the United States Congress for
reauthorization. It is difficult to predict what changes will be
made in its requirements. However, whatever the results of
congressional action, one thing is very certain; the population
of students with special needs (many of them medically
related) entering this nation’s public schools in September
2003, will be larger and more diverse. Thus, it behooves public
school officials to review system wide policies and procedures
involving the implementation of special education law and
regulations.
As the above
commentary demonstrates, a specific effort must be made to
revisit policies that relate to and have a direct bearing on
the medical services exemption of the related services
requirement of the IDEA. In addition to stating the school
system’s intent to implement the mandates of federal and state
special education law and regulations, local school board policy
must make it clear that:
· decisions regarding all aspects of
a student’s individualized educational program (IEP), including
parental requests for necessary related services, are
made by the IEP team, and not by the school board or any one
person in the school system;
· parental requests for medical
services must be made directly to the specific student’s IEP
team and only considered as a part of that team’s official
deliberations;
·
the school system encourages and
supports the gathering of all relevant and up-to-date
information concerning a student, including but not limited to
medical and other health-related data, in an effort to
design an appropriate educational program for that student;
·
a distinction exists between
school health-related services and medical services
(as defined by and in accordance with appropriate state law);
and
· in situations where medical
services are deemed appropriate and necessary to the
educational program of a student, and are included in the
student’s IEP, the school board reserves the prerogative to (a)
contract out for the services, and/or (b) vigorously explore
possible reimbursement for the services through third party
payors (e.g., private health insurance providers), and/or
public assistance programs such as Medicaid.
Resources Cited:
Arlington County, Va. v Smith, 230 F.Supp.2d 704 (E.D. 2002)
Board of Education v Rowley,
458 U.S. 176 (1982)
Cedar Rapids Community
School District v Garret F., 19 S.Ct. 992 (1999)
Coale v Delaware Department
of Education, 162 F.Supp.2d 316 (D.Del. 2001)
34 Code of Federal
Regulations 300.24(a)
Code of Virginia, 22.1-213
et seq.
Education of All Handicapped
Children Act, 20 U.S.C. 1400, et seq. (1976)
Individuals with
Disabilities Education Act, 20 U.S.C. 1400 et seq. (1990,
1997)
J.S. v Shoreline School
District, 220 F.Supp.2d 1174 (N.D. Wash. 2002)
Irving I.S.D. v Tatro, 468
U.S. 883 (1984)
Neely v Rutherford County,
68 F.3d 965 (6th Cir. 1995)
Popson v West Clark
Community Schools, 230 F.Supp.2d 910 (S.D.Ind. 2002)
Rehabilitation Act, Section
504, 29 U.S.C 794 (1973)
School Board of Collier
County, Fla. v K.C., 288 F.3d 977 (11th Cir. 2002)
S.W. v Holbrook Public
Schools, 221 F.Supp.2d 222 (D.Mass. 2002)
White v School Board of
Henrico County, Va., 541 S.E.2d 16 (Va. App. 2001)
Richard S. Vacca
Senior Fellow CEPI
Note: The views and opinions
expressed in this commentary are those of the author. |
