The U.S. Supreme Court last week took up the question of whether federal law requires school districts to pay for one-on-one nursing care for the growing number of medically fragile students who attend regular classrooms.
The Cedar Rapids, Iowa, district urged the high court to limit the scope of the federal Individuals with Disabilities Education Act so districts do not have to pay for individual nurses or health aides for students with serious medical disabilities.
Under the IDEA, districts are responsible for special education and “related services” for students with disabilities. As defined by the law, those services include such assistance as transportation, counseling, and support services such as speech pathology. But districts are not responsible for “medical services,” except for initial diagnosis or evaluation of a student to determine eligibility for special education.
Who Pays?
Districts should pay for traditional school health services, such as intermittent care by a school nurse, but not one-on-one services for a single disabled child, the lawyer for the Cedar Rapids district argued before the high court.
“A nurse for just you? Certainly there can be a line drawn there to say that’s medical,” Susan L. Seitz, the lawyer for the 18,000-student district, told the justices during the Nov. 4 arguments.
The question facing the high court in Cedar Rapids Community School District v. Garret F. (Case No. 96-1793) is whether continuous, one-on-one nursing assistance necessary for a disabled child to attend school is a related service under the IDEA, and thus the district’s responsibility, or an excluded medical service.
Lawyers for 16-year-old Garret Frey, who was paralyzed from the neck down in a motorcycle accident when he was 4, argued that the district should cover the cost of an aide to provide his nursing care in school.
“The IDEA is broad legislation,” said Douglas R. Oelschlaeger, the lawyer for the Frey family. “Congress intended the most severely disabled children” to be able to benefit from special education.
The general tenor of the justices’ comments was sympathetic to the Frey family.
“You are asking us to say that continuous services are medical services,” Justice Sandra Day O’Connor said to the district’s lawyer at one point. “I don’t think that is going to work.”
The Frey case is representative of a shift in which more medically fragile students, also referred to as “technology dependent,” seek to attend regular classrooms.
The federal Department of Education does not keep track of those students as a separate category in its special education statistics. But most experts agree that there are more students who require continuous care in regular classrooms than there were a generation ago.
Districts worry about the costs of providing one-on-one nursing care to such students.
“Schools lack adequate human and financial resources to fulfill a mandate for health services that transcends their traditional educational mission,” says a friend-of-the-court brief filed by the National School Boards Association.
But advocates for disabled children reminded the high court that before the enactment of the IDEA by Congress in 1975, such children often received no educational services at all.
“Congress intended that children such as Garret F., children traditionally excluded from school, be provided with the services that would enable them to attend school,” says a brief filed by disability-rights groups that back the Frey family’s position.
The Clinton administration also sides with the Frey family and argues that continuous nursing services are a related service under the IDEA.
Educational Aide
Garret Frey was riding on the back of a motorcycle with his father in 1987 when his blanket became caught in the cycle’s drive mechanism. His head was jerked back, severing his spinal cord.
Although he has been required to use a wheelchair and a ventilator, his mental abilities did not suffer. He started kindergarten in the Cedar Rapids district in 1988, and he has been in the public schools ever since. He now attends Jefferson High School.
To attend school, Mr. Frey requires catheterization for urine retention and suctioning of his tracheotomy once a day. He also requires help in positioning and must be monitored for any sign of trouble with his breathing.
Either a family member or licensed practical nurse arranged by his family has attended to the boy’s health needs in school. But the district has refused to provide the nursing services at its expense.
The district contends that it would have to hire a registered nurse to care for Mr. Frey if it were responsible for his nursing needs in school. The cost would be from $29,000 to $40,000 a year, it says.
The school system already provides an educational aide to help Mr. Frey with his schoolbooks and papers. His nursing needs are currently provided by a licensed practical nurse, who is paid out of a trust fund set up by the settlement of legal claims following his motorcycle accident.
His family and friends take care of his needs during the hours he is not in school, and another licensed practical nurse cares for him at night. The family argues that the district is exaggerating the cost of care because it would not be necessary to hire a registered nurse, who would be paid more than a licensed practical nurse.
The district argues that state regulations dictate that a registered nurse be used in a situation such as Mr. Frey’s. But after losing in the lower courts, the district obtained a waiver from the Iowa Board of Nursing so that it would not have to use a registered nurse should it take over his nursing care.
Mr. Frey and his parents challenged the district’s refusal to pay for a nursing aide in administrative proceedings and won. The district filed a federal lawsuit seeking to overturn the administrative ruling. Both a federal district court and a panel of the U.S. Court of Appeals for the 8th Circuit ruled for the Freys as well.
Circuit Conflict
The St. Louis-based appeals panel held that a 1984 Supreme Court decision established a test for determining whether the services in question qualified as related services under the IDEA.
In Irving Independent School District v. Tatro, the high court ruled that the clean intermittent catheterization required several times a day by a student with spina bifida was a related service under the federal special education law.
The 8th Circuit court read Tatro as setting up a clear legal test: If the service had to be performed by a physician, it was a medical service and was excluded from district responsibility under the IDEA. If it did not involve a physician, it was a “related” service.
Other federal courts of appeals, meanwhile, have said the outcome should depend on such factors as whether existing school health personnel can perform the service, the cost of the service, and the potential medical consequences if the service is not performed properly.
The Cedar Rapids district urged the high court to adopt such a multifactor test. But Ms. Seitz, the district’s lawyer, met some exasperation from the bench on that score.
“I hate multifactor tests,” Justice Antonin Scalia said. “Can’t you give us any clearer line?”
The district’s lawyer responded that the line should at least be drawn to include continuous, one-on-one care as a medical service.
But some justices also expressed concerns to Mr. Frey’s lawyer about using the physician/nonphysician test as the basis for determining a district’s financial responsibility.
Justice O’Connor asked Mr. Oelschlaeger whether a district might have to pay for a student who required the constant presence of an ambulance outside the school. Such cases could be evaluated on an individual basis, he replied.
Sitting in the courtroom last week was Mr. Frey, now a sophomore.
“I should have the same rights as every other child who has a disability,” he said afterward. He said he enjoys school, especially his math classes, and hopes to be a basketball coach one day.
