The U.S. Supreme Court agreed last week to try to clarify whether federal special education law requires districts to pay for continuous, one-on-one nursing services for medically fragile students.
Lower federal courts have been split on whether services such as a full-time nursing aide for a student with a severe physical disability are an education-related responsibility of districts under the Individuals with Disabilities Education Act. Some courts have ruled that such needs are “related services” and thus a district’s obligation; others have held that they are “medical services” for which districts are exempt.
The high court on May 18 agreed to hear the Cedar Rapids, Iowa, district’s appeal of lower-court rulings requiring it to pay for a full-time nursing aide for a 16-year-old quadriplegic boy identified as Garret F. The boy was paralyzed in a motorcycle accident at age 4 and depends on a ventilator for breathing. He requires constant monitoring by a trained aide because he could die if his breathing is interrupted.
The boy attends regular classes at Thomas Jefferson High School in Cedar Rapids, where he uses a computer controlled by a “mouth stick” to help perform his schoolwork.
The 17,500-student district provides him with transportation and an educational aide in the classroom, but his medical needs have been provided by aides hired by his family.
For his first few years in school, the cost of the medical assistance was covered by insurance and a trust fund established after the accident.
In 1993, however, Garret F.'s parents asked that the district take over the cost of the boy’s nursing services during school hours. The district declined the request, citing the medical-exception provision of the IDEA.
The family appealed to an administrative law judge, who ruled that the district was required to provide the one-on-one nursing services. The district contested that ruling but lost in both the federal district court and the U.S. Court of Appeals for the 8th Circuit.
A three-judge panel of the St. Louis-based appellate court ruled unanimously that because Garret’s services are provided by a nurse, they are not medical services but school health services, which fall under the IDEA’s definition of “related services.”
The appeals court interpreted a 1984 Supreme Court decision as requiring districts to provide disabled students with any necessary health-care service that is not administered by a physician.
The high court’s ruling in Irving Independent School District v. Tatro is its only previous decision interpreting the “related services” provision of the IDEA. In that case, the court held that a district was responsible for providing “clean intermittent catherization” every three or four hours for a student with spina bifida.
Other Courts’ Views
Other federal courts have interpreted Tatro more narrowly than the 8th Circuit court. The U.S. Court of Appeals for the 2nd Circuit, based in New York City, ruled in 1987 that the constant nursing required by a student who needed respirator assistance was an exempted medical service under the IDEA.
The U.S. Courts of Appeals for the 9th Circuit, in San Francisco, and the 6th Circuit, in Cincinnati, have also rejected the view that only physician-delivered services are medical services under the act.
Perry A. Zirkel, a professor of law and education at Lehigh University in Lehigh, Pa., said those courts have adopted a “multifactor test” to determine which category applies to nursing services for medically fragile students.
“These factors,” he said, “include: How constant are the services? Is it every minute or every two hours? How specialized are they? And how costly are they compared with other special education spending?”
Mr. Zirkel, an expert on special education law, said that this issue, while potentially significant, “would be barely at the bottom of my top ten special education legal issues.”
Other issues, such as disciplining special education students and reimbursing parents for private school placements of disabled children, have been more contentious and more costly for districts, he said.
But the high court probably would like to resolve the split in the federal circuit courts over whether such services are the responsibility of districts, he added.
Cost Difference
In its appeal in Cedar Rapids Community School District v. Garret F. (Case No. 96-1793), the district said the 8th Circuit court’s ruling had shifted the burden of paying for one-on-one nursing services for severely disabled children from “those who would traditionally bear these expenses” to “already underfunded public school districts.”
“The services here fall well outside the range of traditional school nursing services,” the district argued in its brief.
Sue L. Seitz, a lawyer for the district, said that having to pay for a nursing aide for Garret F. would result in an added cost to the district of about $28,000 a year. That is the difference between the pay for a full-time registered nurse or licensed practical nurse and the pay for the education aide currently provided, whose services would no longer be needed.
Lawyers for Garret F. and his family responded in a brief that the additional cost to the district, at most, would be $17,000 a year. The discrepancy is rooted in part in differing interpretations of what the Iowa State Board of Nursing would require if the district provided the nursing services to the boy.
One surprising facet of the high court’s decision to accept the case is that the justices disregarded the advice of the Department of Justice, even after they requested the department’s views on the case.
The Justice Department argued in a brief that while the federal appeals courts are indeed split on the issue, the Cedar Rapids case was not a good one to decide the issue because, among other reasons, state law appears to require the district to pay for the nursing aide regardless of whether the IDEA does.
The high court will hear the case during its next term, which begins in October.
Workshop Case
In separate action last week, the court turned away an appeal from a Christian educators’ group that had sued after it was ejected from a regional teachers’ workshop in Arkansas.
Two lower federal courts said the group’s First Amendment rights were not violated when an educational service cooperative booted it from a workshop where it was handing out brochures critical of outcomes-based education and the federal Goals 2000 program.
The justices declined without comment to hear the group’s appeal in Arkansas Christian Educators Association v. Ozarks Unlimited Resources Cooperative (No. 97-1555.)
