On March 3, 1999 the United States Supreme Court announced its decision in the Cedar Rapids Community School District v. Garret F. case. Some advocates for children with disabilities hailed this decision as a landmark case for students with significant medical needs. Many school districts viewed it as an albatross and "budget-buster." What will be the impact of this case on school health services in the new millennium?
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What Are "Related Services?"
The Garret F. case represents the culmination of nearly fifteen years of court opinions and analyses regarding services to students with significant medical needs under the Individuals with Disabilities Education Act (IDEA) (reauthorized, 1997). The seminal case regarding provision of services to students deemed "medically fragile" was decided by the United States Supreme Court in 1984. In Irving Independent School District v. Tatro, 468 U.S. 883 (1984), the court was called upon to interpret the Education of the Handicapped Act (EHA), the precursor statute to the IDEA.
Amber Tatro was an eight-year-old who was born with Spina Bifida. Amber had orthopedic impairments as well as a neurogenic bladder, which required that she be catheterized every three to four hours in order to prevent infection and kidney damage. Amber began attending school in 1979 at the age of 3-½ years. As required under the EHA, the school district developed in Individualized Education Program (IEP) for Amber, which included early childhood development and related services such as physical and occupational therapy. Her IEP, however, made no provision for clean intermittent catheterization (CIC) which Amber required during the school day. Amber’s parents were unsuccessful in pursuing CIC for Amber through the administrative remedies available under the EHA. They subsequently sought a remedy in the court system on the grounds that CIC was a "related service" under the EHA and as such, it was a required part of Amber’s education if she was to receive a "free appropriate public education" as guaranteed by the law.
What Constitutes a Free Appropriate Public Education?
Under the EHA, and its successor IDEA, every eligible child is entitled to receive a free appropriate public education which the Act defines as
. . . Special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the state educational agency, (C) include an appropriate preschool, elementary or secondary education in the State involved, and (D) are provided in conformity with the individualized education program . . . .
Although the school district provided Amber with physical and occupational therapy as "related services," it argued that CIC was a "medical service" and that medical services were specifically exempted from the list of related services under the EHA, which included "medical services . . .for diagnostic and evaluation purposes only." "Medical services" were defined under the statute as "services provided by a licensed physician." (Regulation 300.13(b)(4)) The school district further argued that CIC was not a need that arose from the effort to educate Amber. Amber’s parents argued that CIC was a "school health service," which the regulations define a"services provided by a qualified school nurse or other qualified person." (Reg. 300.13(b)(10))
In reviewing the facts, the Court stated that CIC was being performed by Amber’s older brother and the family babysitter and that the procedure could be performed by an appropriately trained person. It did not require the direct services of a licensed physician. Furthermore, CIC was a procedure that required in order for Amber to be present in the school building. Consequently, the found that CIC was a related service that the school district was required to provide as part of Amber’s IEP. The court reasoned that without the service, Amber would not be able to attend school. If the procedure could have been performed outside of the school day, the school would not be required to provide it. The Court set forth the following guidelines for determining when a service is a school health service as opposed to a medical service:
1. The child must be eligible for special education services;
2. The child must need the services to benefit from his or her education; and
3. The services must be the type that can be provided by a qualified person other than a licensed physician.
School Health Services Are Distinguished from Medical Services
The Tatro case is important for several reasons. First, the case confirms the distinction made in the IDEA between "medical services" and "school health services." Clearly these are two separate disciplines and must be recognized as having different focuses and outcomes. Secondly, the case introduces the value that children with disabilities are entitled to receive an appropriate public education, which includes the ability to be physically present in class.
Subsequent to Tatro, there were a number of lower federal circuit court decisions that attempted to analyze the reasoning in Tatro and apply it to situations involving students with health care needs of considerably greater complexity than Amber’s. Several federal circuit courts held that services involving care of a tracheostomy tube, care of a ventilator, gastrostomy tube feeding or medication administration, and monitoring of oxygen were medical services due to the nature, scope, intensity or expense of the service, i.e. the procedure required the services of a registered nurse at all times. Others held firmly to the analysis applied in Tatro: unless the service was one that could only be performed by a physician, the service was a school health service that had to be provided to the student during the school day, including the portion of the day the student was being transported to and from school.
It was amid this chaos that the United States Supreme Court agreed to hear the case Cedar Rapids Community School District v. Garret F. The Court describes Garret as "a friendly, creative and intelligent young man." When four years old, Garret’s spinal cord was severed in a motorcycle accident. Although paralyzed from the neck down, Garret’s mental capacities were unaffected. His academic performance has been above average throughout. Garret controls his wheelchair through use of a puff and suck straw. He operates a computer through a device that responds to head movements. Garret is ventilator dependent and requires an appropriately trained person nearby at all times during the school day for CIC, suctioning of his tracheostomy, ambu bag administrations as a ventilator back-up, blood pressure monitoring, observation for respiratory distress, and disimpaction in the event of autonomic hyperreflexia.
During Garret’s earlier years in school, his family used settlement proceeds from his accident to provide the care he required, usually through a licensed practical nurse. In 1993, Garret’s parents requested that the school district assume responsibility for Garret’s health care services during the school day. The school district denied the request on the grounds that it was not required to provide one-on-one nursing services under the IDEA, even though it admitted that Garret could not remain in school without these services. The district argued that the services were "medical" due to the fact that: 1) the care was continuous in nature rather than intermittent; 2) existing school personnel were not able to perform the required services; 3) the services were expensive; and 4) the potential consequences if the services were not properly performed were significant.
The Supreme Court dismissed the district’s suggested multi-factor test as being unsupported by any legal authority. Instead, the Court reiterated the analysis set forth earlier in Tatro, stating that ". . . there is no good reason to depart from settled law." While admitting that Garret’s care was more extensive than Amber’s, the Court found that his needs were no more "medical" in nature than Amber’s. The required procedures could be performed by a school nurse or other appropriately trained person. Once again, the Court emphasized the distinction between medical services and school health services.
Furthermore, the Court stated that the case was about
. . .whether meaningful access to the public schools will be assured, not the level of education that a school must finance once access is attained. Under the statute, our precedent (i.e. Tatro), and the purpose of the IDEA, the District must fund such "related services" in order to help guarantee that students like Garret are integrated into the public schools. (526 U.S. 66 at 68)
The fact that Garret required these services during the school day in order to remain in school guaranteed him the right to have them included as school health services in his IEP. If they had not been required during the school day, the district would not have had an obligation to provide school health services. This distinction under the IDEA is important for several reasons:
•only those health services that are essential or are required during the school day in order for the student to remain in school must be provided
•only those services that constitute related services must be provided
•every student with a disability, no matter how severe, is entitled to receive a free appropriate public education
•students with complex medical needs have the same right to receive a free appropriate public education as other students with disabilities
How Do Districts Plan for a Garret F.?
Only a small percentage of students will require the intensity of services that Garret does. Nevertheless, school health services administrators and school district administrators must develop both a fiscal plan and an implementation plan for the delivery of health care services to students like Garret.
There are a number of options to consider when developing these plans. An emerging source of funds is the federal Medicaid program for students who are eligible to receive Medicaid. This generally involves an application by the school district to become a Medicaid provider for the purpose of billing Medicaid for covered services that include physical therapy, occupational therapy, speech language therapy, and school health services, to name a few. At the present time, the costs billed to Medicaid for related services do not reduce or otherwise impact a child’s lifetime eligibility for Medicaid services. Parent permission should be sought for the use of Medicaid after full disclosure regarding this current status, which could possibly change in the future.
It is permissible to inquire of parents whether their private health insurance would cover any of the costs or services; however, parents cannot be required to use their private health coverage. Nor can private health insurance be used if there is an effect on lifetime maximums or other reduction of benefits. Neither can parents be required to incur any out-of-pocket expenses such as co-payments. Again, full disclosure should be made prior to obtaining written parental consent for use of private insurance.
In many states, the State Nurse Practice Act permits the delegation of nursing tasks to assistive personnel under certain conditions. The application of the delegatory clause permits nurses to attend to the most medically fragile students while delegating routine care to paraprofessionals who are trained and supervised by the licensed nurse. Smaller schools districts may pool resources to meet student health care needs. It should be emphasized that the decision whether or not to delegate a nursing task to an assistive provider is solely that of the registered nurse whose license may be jeopardized if delegation is made contrary to good nursing judgment.
Most school districts are required to maintain contingency funds for unforseen expenses. The presence of a student with complex medical needs in the district should certainly be among the contingencies for which those funds are identified.
Conclusion
The controversy that existed between "medical services" and "school health services" has been settled by the United States Supreme Court. Only an amendment to the IDEA by Congress could alter the interpretation set forth by the United States Supreme Court in the Tatro and Garret F. cases. School health services constitute a distinct discipline and encompass both routine and complex health care services to student who require them during the school day in order to access public education in the same manner as students who do not have disabilities. School health administrators and school district administrators must plan for and deliver school health services to all students who require them in order to participate in public education. If health services, from medication administration to tracheostomy care, are required during the school day in order for the student to attend school, those health services must be provided to the student at no cost. Conversely, the school district is not legally obligated to provide those health services that do not have to be delivered during the school day in order for the student to access the education offered.
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About the Author
Marjorie Long is an attorney with over fifteen years’ experience in the fields of disability and education law. She is currently the Director of Education Advocacy for the Arc in Jefferson County, Colorado and serves as a consultant to school districts, professional nursing associations and the School of Nursing at the University of Colorado Denver. Ms. Long has authored several manuals for parents of children with disabilities as well as numerous articles. E-mail questions regarding this monograph to Ms. Long
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