Petition for Writ of Certiorari — Cedar Rapids Community School Dist. v. Garret F.

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FILED

961798 may 8 1997

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1996

CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT,

Petitioner,

vs.

GARRET F., A Minor By His Mother and Next Friend,

CHARLENE F.,

Respondent.

Petition for a Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

PETITION FOR A WRIT OF CERTIORARI

SUE LUETTJOHANN SEITZ

Counsel of Record

EDWARD M. MANSFIELD

BELIN LAMSON McCORMICK

ZUMBACH FLYNN,

A PROFESSIONAL CORPORATION

Attorneys for Petitioner

2000 Financial Center

Des Moines, Iowa 50309

(515) 243-7100

71085 12

(800) 3 APPEAL · (800) 5 APPEAL « (800) BRIEF 21

A erde inc.

QUESTIONS PRESENTED FOR REVIEW

1. Whether a school district is required to pay for

continuous one-on-one nursing services for a disabled student,

when the Individuals with Disabilities Education Act expressly

excludes “medical services” from its mandate.

2. Whether there should be a bright-line rule that the Act’s

exclusion of “medical services” means only those services

provided by a physician, as determined below by the United

States Courts of Appeals for the Eighth Circuit, or whether other

medical services are excluded from the Act, as previously

determined by the United States Courts of Appeals for the

Second, Sixth and Ninth Circuits.

. ' iii

PARTIES TO THE EED :

— * TABLE OF CONTENTS

Petitioner, Cedar Rapids Community School District, ) Page

operates schools in Cedar Rapids, Iowa and is recognized as a ' , , .

school corporation under Iowa law with authority to sue and be Questions Presented for Revi“) i

sued, hold property, and exercise all the powers granted by law. , 1

The District was the Plaintiff in the lower court proceedings of Parties to the Proceeding eee eee. 1

this case and the Appellant before the United States Court of

Appeals for the Eighth Circuit. „„ 4 iii

Respondent, Garret F., is a 14-year old boy whose mother ST, CaccWé dcccodt eee eee eee iv

and guardian is Charlene F. Garrett F. was the Defendant in the

lower court proceedings of this case and the Appellee before : Opinion Belo l

the United States Court of Appeals for the Eighth Circuit.

Statement of Jurisdiction ...............0s0eeeeees !

There are no other parties to this action.

„„ „„ l

| Statement of the Cassse ee cee eeneees 2

: Reasons for Granting the Writ 6

| L Erol hh 6

Il. Summary Of Reasons For Granting The Writ.

nne 8

. III. The Court Of Appeals Has Created A New,

Illogical Definition Of “Medical Services” Which

Conflicts With Previous Definitions, Including

Those Of Three Other Circuits. 9

IV. The Court Of Appeals’ Ruling Undermines This

Court’s Tatro Decision, And Has Spawned

Uncertainty As To What Tatro Means, Requiring

This Court's Intervention.. 13

Contents

Page

V. The Court of Appeals’ Ruling Has Adverse Policy

Consequences Transcending Its Negative Impact

On This Area Of LW 17

G. eee esse eee eee e eee 19

TABLE OF CITATIONS

Cases Cited:

Bevin H. by Michael H. v. Wright, 666 F. Supp. 71 (W.D.

De, BOGE o ccccccccccccascescececessocessooss 11

Board of Educ. of Hendrick Hudson Central School Dist.

„ Rowley, 458 U.S. 176 (1982) ... 2... ce ceceeees 14, 15

Clovis Unified School Dist. v. California Office of Admin.

Hearings, 903 F.2d 635 (9th Cir. 1990) 7, 10, 16

Detsel v. Board of Educ. of Auburn Enlarged City School

Dist., 637 F. Supp. 1022 (N.D. N.Y. 1986), af d. 820

F.2d 587 (2d Cir.) (per curiam), cert. denied, 484 U.S.

Le 7, 10, 16

Ellison v. Bd. of Educ. of Three Village Central School

District, 597 N.Y.S. 2d 483 (App. Div. 1993) 12, 17

Fulginiti v. Roxbury Tp. Public Schools, 921 F. Supp.

SSID. GILT. IGBD 0.0 0n.a0 ccecscccarscesnassocs 11. 17

Granite School Dist. v. Shannon M., 787 F. Supp. 1020

L 11. 16, 17

Contents

Page

Irving Indep. School Dist. u Tatro, 468 U.S. 883 (1984)

bees eee eee 4. 6. 7, 8, 13, 14, 15, 16

Macomb County Intermediate School Dist. v. Joshua S.,

715 F. Supp. 824 (E.D. Mich. 1989) ............ 12, 13

Neely v. Rutherford County School, 68 F.3d 965 (6th Cir.

1995), cert. denied, 116 S. Ct. 1418 (1996) ..7, 11, 13, 16

Virginia Dept. of Educ. v. Riley, 106 F.3d 559 (4th Cir.

FOUR be dawecd cece bi hed cdvectevocctvosecces 18

Statutes Cited:

20 U.S.C. § 1400, ef seg. ........ Pepa 2,9

ene. 9

BP Ee OF ED wn eee l

ehh .... 7

een. e eee eee 9

rere eres eee eee l

Be Ges Bh BD eee 1

Other Authority Cited:

H. Rep. No. 101-544 at 11, House Committee on

Education and Labor, 101ist Cong., 2nd Sess.,

reprinted in U.S. Cong. Code & Admin. News 1723

aasee sse des eee 17. 18

Contents

APPENDIX

Appendix A — Opinion of the United States Court of

Appeals for the Eighth Circuit Filed February 7, 1997

Appendix B — Order of the United States District Court

for the Northern District of lowa, Cedar Rapids

Division Filed March 22, 199

Appendix C — Decision of the Administrative Law Judge

Dated December 16, 1994 .........cccceecccees

Appendix D — Letter from the Office of Special

Education Programs of the U.S. Department of

17a

The petitioner, Cedar Rapids Community School District

(“the District”), respectfully requests that this Court issue a writ

of certiorari to review the judgment and opinion of the United

States Court of Appeals for the Eighth Circuit, entered February

7, 1997.

OPINION BELOW

The opinion of the Eighth Circuit is reported at 106 F.3d

822, and is reproduced in the Appendix at la-7a.

STATEMENT OF JURISDICTION

The judgment to be reviewed was entered on February 7,

1997. Jurisdiction is conferred on this Court by 28 U.S.C.

§ 1254. The district court had jurisdiction pursuant to 20 U.S.C.

§ 1415(e).

STATUTE INVOLVED

Title 20 U.S.C. § 1401(a) provides:

As used in this Chapter

(17) The term “related services” means

transportation, and such developmental,

corrective, and other supportive services

(including speech pathology and audiology,

psychological services, physical and

occupational therapy, recreation, including

therapeutic recreation, social work services,

counseling services, including rehabilitation

counseling, and medical services, except that

such medical services shall be for diagnostic

and evaluation purposes only) as may be

required to assist a child with a disability to

benefit from special education, and includes

the early identification and assessment of

disabling conditions in children.

STATEMENT OF THE CASE

The District brought suit in the United States District Court

for the Northern District of lowa, seeking to overturn a decision

of an lowa administrative law judge made pursuant to 20 U.S.C.

§ 1400, et seg.' The decision required the District to reimburse

all of Garret F.’s health care costs while attending the District's

schools.

Garret F. is a 14-year-old ventilator-dependent child enrolled

in the eighth grade. He attends regular education classes in his

neighborhood school in Cedar Rapids, lowa. When Garret was

four, while he was riding on his father’s motorcycle, he was

seriously injured when his blanket caught in the drive mechanism

of the motorcycle, jerking his head. Garret suffered a complete

transection of the spine and, as a result, is quadriplegic and

completely paralyzed below his neck. Garret depends on a

ventilator for breathing. He has normal mental capacity, is able

to speak, and uses a puff and sip straw to control a wheelchair.

It is undisputed that Garret requires the following health

services while at school: urinary bladder catheterization (usually

once a day), suctioning of his tracheostomy as needed, change

of positioning, ambu bag administration in cases of ventilator

malfunctioning (this consists of manual pumping of an air bag

attached to his tracheostomy tube), ventilator setting checks,

1. The Individuals with Disabilities Education Act, formerly known as

the Education for All Handicapped Children Act (hereinafter from time to

time referred to as the “IDEA” or the Act“).

observations and assessments to determine if Garret is in

respiratory distress, assessment to determine if he is

experiencing autonomic hyperreflexia, and blood pressure

monitoring, urinary catheterization and bowel disimpaction in

the event of an episode of autonomic hyperreflexia. These

services must be provided continuously by trained personnel

because Garret could die if his breathing is interrupted for just

a few minutes.

For every year since Garret enrolled in the District in 1988,

the District has provided him with an individualized educational

plan (“IEP”) written by a multi-disciplinary educational team.

Garret has always received instructional services in regular

education classrooms. The District has also hired an educational

associate to assist Garrett in moving about the building and with

manipulating his District-provided computer and other

instructional materials. Additionally, the District has provided

Garret with special transportation; for the past several years,

this has consisted of a special lift bus. Garret has been provided

with specialized equipment by the District, including a computer

with a mouth stick and special software.

During the first several years of Garret’s enrollment in the

District, the District and Garret's parents entered into an

agreement that the family would provide a full-time attendant

for Garret while he was at school. The family’s health insurance

and a trust fund established after a settlement of legal claims

arising out of the motorcycle accident covered the costs of this

attendant. Since 1989, this attendar has been a licensed

practical nurse (“L.P.N.”) who attends exclusively and

continuously for Garret while at school.

In 1993, Garret F.’s mother (Charlene F.) requested that the

District bear the costs of the full-time attendant required by

Garret. According to the lowa Board of Nursing, if the school

employs the attendant, the care must be provided by a licensed

practitioner, either directly by a registered nurse (R. N.) or by

a licensed practical nurse (“L.P.N.”) under the immediate

supervision of an on-site registered nurse. Thus, Garret has

received and continues to require one-on-one continuous nursing

services.

The District — one of the largest in Iowa — operates

approximately 33 schools for approximately 17,500 students.

Approximately 2,200 of its students receive special education

services. Currently, the District has the equivalent of six full-

time registered nurses to serve its 17,500 students and 33

schools. No building has a registered nurse continuously on site,

and the District does not provide one-on-one continuous care

for any other student.

The District declined Charlene F.’s request that it pay for

Garret’s continuous nursing services, taking the position that

the services in question were medical services which the District

was not obligated to provide. The District, however, continues

to provide a full-time teacher associate for Garret at an annual

cost of approximately $9,548. It would cost the District

approximately $37,828 (using 1994-95 costs) to provide one-

on-one nursing for Garret, so the additional burden if the District

must pay for Garret's intensive nursing services is approximately

$28,000 per year.

Following this denial, Garret F.’s mother requested an

administrative hearing pursuant to the Individuals with

Disabilities Education Act. On December 16, 1994, an Iowa

administrative law judge ruled that the District was required to

provide for all of Garret’s health needs at school including the

continuous intensive nursing services he requires. Appendix C

at 17a-63a. The ALJ read this Court’s decision in Irving Indep.

School Dist. v. Tatro, 468 U.S. 883 (1984), as requiring the

District to provide, under the IDEA, any health care service that

is not administered by a physician. The ALJ stated, “As much

as this ALJ may disagree with the public policy of spending

education funds on health services, he does not feel he has the

authority to change the law.” Appendix Cat 51a.

The District brought this action in federal district court to

review the ALJ’s decision. The district court granted summary

judgment for Garret F. and his mother. It ruled as a matter of

law that the “medical services” exclusion in the Act “is limited

to the services of a physician or hospital.“ Appendix B at 15a.

The District appealed, and the Eighth Circuit affirmed the

summary judgment in a published opinion adopting the same

physician/non-physician distinction. The Eighth Circuit openly

acknowledged that its ruling was in conflict with the decisions

of other courts, including two other federal circuits:

Here, Garret’s services are not provided by

a physician, but rather, a nurse. Thus, based

on Tatro, the services are not medical

services, but rather, school health services or

supportive services, both of which meet the

definition of related services which the

district must provide. See 34 C.F.R.

§ 300.16(a), (b)(11) (1996).

The court is aware of several decisions that

have not interpreted Tatro as establishing a

bright-line, physician/non-physician test for

medical services. See Detsel v. Board of

Educ. of Auburn, 637 F. Supp. 1022 (N.D.

N.Y. 1986), aff'd, 820 F.2d 587 (2d Cir.),

cert. denied, 484 U.S. 981 (1987); Granite

School Dist. v. Shannon M., 787 F. Supp.

1020 (D. Utah 1992); Neely v. Rutherford

County School, 68 F.3d 965 (6th Cir. 1995).

Going beyond the physician/non-physician

distinction the Supreme Court found in the

statute and the regulations, these courts rely

on dicta in Tatro in order to factor into the

medical services exclusion considerations of

the nature and extent of the services

performed. The court declines to seize dicta

in Tatro to go beyond the physician/non-

physician test which the Supreme Court sets

forth therein.

Appendix A at 6a-7a.

REASONS FOR GRANTING THE WRIT

INTRODUCTION

In ordering the District to provide full-time one-on-one

nursing services for a ventilator-dependent child, the Court of

Appeals has effectively converted the IDEA from an education

law to a law requiring school districts to pay catastrophic medical

expenses of their students. In essence, the Eighth Circuit has

relieved from responsibility those who would traditionally bear

these expenses and shifted the burden onto already underfunded

public school districts. This ruling can only have the effect of

further eroding the ability of this nation’s public schools to meet

the challenge of providing a high-quality, free education to all

students.

The Eighth Circuit's published ruling conflicts with the plain

language of the IDEA, this Court's decision in Tatro, and

published decisions of the Second, Sixth and Ninth Circuits. It

would have been a surprise to Congress to learn that when it

enacted IDEA, and expressly exempted school districts from

having to provide “medical services” except for “diagnostic and

evaluation purposes,” 20 U.S.C. § 1401(a)(17), it was really

requiring districts to provide the intensive, continuous services

that are involved in this case and are necessary to save Garret

F.’s life. “Medical” services are not provided only by physicians.

When this Court decided in Irving Indep. School Dist. v. Tatro

that school districts should provide intermittent services of the

kind traditionally provided by school nurses, it also indicated

that school districts should not have to provide services that are

“beyond the range of their competence” and have never been

“part of the educational system.” Tatro, 468 U.S. at 892-93.

The services here fall well outside the range of traditional school

nursing services.

The direct conflict between the Eighth Circuit’s ruling and

the decisions of the Second, Sixth and Ninth Circuits in Detsel

v. Board of Educ. of Auburn Enlarged City School Dist., 820

F.2d 587 (2d Cir.) (per curiam), cert. denied, 484 U.S. 981

(1987); Neely v. Rutherford County School, 68 F.3d 965 (6th

Cir. 1995), cert. denied, 116 S. Ct. 1418 (1996); and Clovis

Unified School Dist. v. California Office of Admin. Hearings,

903 F.2d 635 (9th Cir. 1990), demands this Court’s immediate

review. As things now stand, school districts in some states

apparently must provide any health care service a disabled

student requires (unless it has to be provided by a licensed

physician), while school districts in other states need not provide

such life-sustaining medical services that go well beyond the

traditional role of school nurses. Given the tremendous practical

and financial impact of these differences in interpretation of

federal law, uniformity among the circuits is needed. Only this

Court can provide it.

II.

SUMMARY OF REASONS FOR GRANTING THE WRIT.

This Court should grant the District’s petition for the

following reasons:

1. The Court of Appeals’ ruling has created a split among

the circuits and produced uncertainty on the important question

of whether, under the Individuals with Disabilities Education

Act, school districts must only provide educational and support

services to disabled students, or whether they must provide

medical services in the form of intensive, continuous nursing

services as well.

2. The Court of Appeals’ ruling undermines previous case

law, including this Court's Tatro decision, which focused on

whether schools had traditionally provided the services in

question. This sensible rule did not require schools to assume

unprecedented medical duties such as continuous, one-on-one

nursing for life-threatening conditions. In light of the Court of

Appeals’ ruling, it is necessary and appropriate for this Court to

clarify what it meant in Tatro.

3. The Court of Appeals’ ruling will have damaging effects

throughout the country. It will encourage costly litigation against

school districts as parties attempt to transfer to them the high

costs of medical care for the seriously disabled. Overburdened

school districts throughout the country may have to redirect

significant portions of their budgets to handle these catastrophic

medical expenses.

III.

THE COURT OF APPEALS HAS CREATED A NEW,

ILLOGICAL DEFINITION OF “MEDICAL SERVICES”

WHICH CONFLICTS WITH PREVIOUS DEFINITIONS,

INCLUDING THOSE OF THREE OTHER CIRCUITS.

The Individuals with Disabilities Education Act, 20 U.S.C.

§ 1400, et seg. serves the laudable goal of assuring that every

disabled child will receive without cost “special education and

related services” suitable to him or her. Jd. § 1400(c). “Related

services” are defined as “transportation, and such developmental,

corrective, and other supportive services . . . as may be required

to assist a child with a disability to benefit from special education

.. Id. § 1401(17). The Act requires school districts to provide

these services free of charge.

However, consistent with the notion that the statute is about

education, and is not a broader law requiring school districts to

meet the day-time health care needs of all students within their

boundaries, the statute expressly excludes medical services”

from the definition of “related services” that must be provided

by school districts. Jd. Only medical services “for diagnostic

and evaluation purposes” are mandated to be provided by school

districts. Id.

Given this clear language, the courts have historically

followed a common sense approach. They have treated certain

occasional or intermittent services that were easily and

historically provided by school nurses as “related services.” At

the same time, they have declined to require school districts to

hire special one-on-one nurses to care for students with life-

threatening conditions. Such care has been viewed as an

uncovered “medical service.”

Thus, in Detsel v. Board of Educ. of Auburn Enlarged City

School Dist., 820 F.2d 587, the Second Circuit held that the daily

nursing required for a child who needed constant respirator

assistance was a “medical service” and not a “related service”

within the Act. Because of Melissa Detsel’s disability, several

procedures had to be performed on her regularly, including

administering medication through a tube, striking her about the

lungs, and suctioning out any mucus collected in the lungs. 637

F. Supp. 1022, 1024 (N.D. N.Y. 1986) (district court opinion).

The attending nurse also had to be prepared to deal with

Melissa’s potentially life-threatening circumstances. Id.

The Second Circuit, expressly approving the district court's

opinion, held that “[t}he extensive, therapeutic health services

sought by the plaintiff on behalf of her daughter more closely

resemble the medical services specifically excluded by

§ 1401(17) of the EAHCA [now the IDEA).” 637 F. Supp. at

1027, 820 F.2d at 588. The court noted that these were not

“simple school nursing services” and that the Act “does not

require the defendants school district and board of education to

provide a severely physically disabled child with constant, in-

school nursing care.” Id.

Detsel is not the only decision along these lines. The Ninth

Circuit followed the Second Circuit’s lead in Clovis Unified

School Dist. v. California Office of Admin. Hearings, 903 F.2d

635. In Clovis the parents of an emotionally disturbed child

argued that her temporary hospitalization was a covered “related

service” rather than an excluded “medical service.” In ejecting

that argument, the Ninth Circuit relied on Detsel and specifically

held that the “medical services” exclusion did not depend on

whether a licensed physician provided the service. /d. at 642-

More recently. the Sixth Circuit followed a like approach

in Neely v. Rutherford County School, 68 F.3d 965. Samantha

Neely had a rare condition which required her to breathe through

a tracheostomy tube. The tube had to be suctioned and, if her

breathing stopped, artificial ventilation with an ambu bag would

need to be provided. Given that a nurse or medical attendant

“would have had to devote virtually all of his or her attention”

to Samantha, and that “such care was necessary in order to

protect” the child’s life, the court held that the services her

parents sought were “medical” and not “related.” Id. at 971-73.

Most district courts have concurred in this practical, flexible

approach to the “medical services” exclusion. In Granite School

Dist. v. Shannon M., 787 F. Supp. 1020 (D. Utah 1992), the

district court ruled that full-time nursing care for a child with

neuromuscular atrophy and severe scoliosis was not a “related

service” under the Act which the school district had to provide

as part of her free and appropriate public education. The student

used a tracheostomy tube which required constant attention; the

court reasoned that this constant care could not be provided by

the school district's three existing nurses, and that “the Act does

not require anite to provide Shannon with full-time nursing/

tracheostomy care as a supportive service.” 787 F. Supp. at 1030.

Likewise, a federal district court decided in Fulginiti v.

Roxbury Tp. Public Schools, 921 F. Supp. 1320 (D.N.J. 1996),

that ongoing nursing services for a child with dysfunction of

her nervous system were an uncovered “medica! service.”

Carissa Fulginiti had a tracheostomy tube that required

monitoring and suctioning during the school day. The court

found that “the care required for Carissa is medical in nature

and that to provide it would be unduly burdensome upon the

District.” Id. at 1325. Accord Bevin H. by Michael H. V Wright,

666 F. Supp. 71, 74-76 (W.D. Pa. 1987) (“related services” do

not include one-on-one nursing to care for a disabled student

with a tracheostomy).

In Ellison v. Bd. of Educ. of Three Village Central School

Dist., 597 N.Y.S. 2d 483 (App. Div. 1993), a New York appellate

court considered a claim br »ug' on behalf of a child who, like

Garret, was quadriplegic and ventilator-dependent. The court

held that the one-on-one nursing services required by this child

were not “simple school nursing services” but, rather, were

excluded medical services. Id. at 485.

There are shades of difference in the reasoning of these

opinions. Some focus on the school’s financial burden. Others

emphasize the legal burden of being responsible for continuous,

life-sustaining care. Still others highlight the gap between the

services sought by the disabled child's parents and the “school

nursing services” traditionally provided by schools. But the

common thread running through all these decisions is their

conclusion — as a matter of law — that Congress did not intend

to require school districts to provide continuous one-on-one

nursing services. All have treated intensive nursing services as

an excluded “medical service.”

The Eighth Circuit's ruling in this case shatters this

consensus. In its brief published opinion, the Court of Appeals

announced a “bright-line, physician/non-physician test” for

medical services. The Court of Appeals reasoned simplistically

that “medical” means “delivered by a physician.” Because

Garret’s continuous nursing care (like the continuous care in all

the above cited decisions) does not require a physician, the Court

of Appeals held the District must provide it. The Court of

Appeals freely acknowledged that its decision was at odds with

other federal appellate and district court rulings. Appendix A

at 6a-7a.

The only previous reported federal decision that had adopted

the Eighth Circuit's bright-line physician/non-physician standard

was Macomb County Intermediate School Dist. v. Joshua S.,

715 F. Supp. 824 (E.D. Mich. 1989). Although Joshua S. did

not involve continuous nursing care, the court stated in dictum

“that the medical services exclusion is limited to services

provided by a licensed physician.” Jd. at 828. However, Joshua

S. lacks any serious precedential value because the Sixth

Circuit’s Neely decision effectively overruled it.

The Eighth Circuit's decision, which has precedential value

and is binding in a seven-state area, thus throws this area of law

into a vortex of uncertainty. Do schools have to provide

continuous nursing services or other intensive health care-related

services to seriously disabled students? The question now has

no clear answer. Apparently they must provide these costly

services within the Eighth Circuit; they do not have to provide

them within the Second, Sixth and Ninth Circuits; and

uncertainty prevails elsewhere. Because of the number of

children who have serious medical disabilities requiring one-

on-one nursing services, school districts in some parts of the

country are now subject to much heavier potential financial

burdens than school districts in other parts of the country. Given

the importance of these questions to school districts, disabled

students, their families, practicing lawyers and the judges who

decide these cases, this Court should step in and bring clarity to

this important area of law.

IV.

THE COURT OF APPEALS’ RULING UNDERMINES

THIS COURT’S TATRO DECISION, AND HAS SPAWNED

UNCERTAINTY AS TO WHAT TATRO MEANS,

REQUIRING THIS COURT’S INTERVENTION.

The Eighth Circuit's ruling conflicts with two previous

decisions of this Court interpreting the IDEA. Indeed, because

the Court of Appeals’ opinion purports to follow one of those

decisions (Tatro), while really undermining it, it has great

potential for creating mischief in this area of law.

In the landmark case of Board of Educ. of Hendrick Hudson

Central School Dist. v. Rowley, 458 U.S. 176 (1982), the Court’s

first decision under the Act, this Court considered whether school

districts had to provide every educational service that was needed

to give a disabled child an opportunity “commensurate with the

opportunity provided other children.” Id. at 186 (quoting district

court). The complaining parents sought to require the school

district to provide a qualified sign-language interpreter for their

partially deaf child. Although the child was already receiving

some specialized services at school, the parents argued that she

would perform better with an interpreter and that one was needed

to equalize their daughter's opportunities with those of

nondisabled children. Id. at 185-86.

The Court rejected this argument. To the contrary, it held

that the Act did not require any particular level of educational

benefits. Id. at 202-03. The Court expressly rejected the notion

that school districts were obligated by the Act to “maximize

each child’s potential,” regardless of burden or cost. Id. n. 26.

Instead, each case had to weighed individually. Id. at 208-10.

The Eighth Circuit's embrace of bright-line rules cannot be

squared with Rowley’s rejection of them. If the Act adopts an

overall reasonableness approach, as Rowley held, then a

requirement that school districts provide any nursing service

regardless of burden or cost cannot stand.

The Eighth Circuit's ruling conflicts even more directly with

this Court's 13-year-old Tatro precedent, its only prior decision

addressing the “related services” exclusion. As noted, because

the Court of Appeals purports to be reaching an outcome dictated

by Tatro, the consequences of its misreading of Tatro could be

very far-reaching.

In Irving Indep. School Dist. v. Tatro, 468 U.S. 883, this

Court considered a claim brought on behalf of a school-age child

with spina bifida who needed clean intermittent catheterization

(“CIC”) every three or four hours. The CIC procedure, according

to the Court, was “a simple one that can be performed in a few

minutes by a layperson with less than an hour's training.” Id. at

985. It was undisputed that state law did not require a nurse to

perform this simple procedure. Id. at 887.

Under these circumstances, the Court held that the school

district should provide the service. The Court’s reasoning had

two components:

(1) CIC is analogous to the type of service that school

nurses have traditionally provided to non-disabled students —

le., “services of a kind that are routinely provided to the non-

handicapped” (id. at 893-94);

(2) while one could conclude that Congress wanted “to

spare schools from an obligation to provide a service that might

well prove unduly expensive and beyond the range of their

competence. it was also logical to conclude that Congress

intended to impose the obligation [on schools] to provide school

nursing services” (id. at 892-93).

In short, this Court found that CIC, a simple procedure that

would only need to be performed once or at most twice during

the school day, was a “related” service analogous to traditional

school nursing services (like administering insulin shots for a

diabetic child) and not an excluded “medical service.”

As in Rowley, this Court in Tatro followed a balanced,

nuanced approach, carefully considering the burdens on the

school district. Jd. at 893-94. Thus, until the Court of Appeals’

decision in this case, most lower courts had not read Tatro as

establishing a bright-line rule that “medical services” meant

services.” As the Ninth Circuit explained in Clovis,

“[(T)he Court [in Tatro] held only that services which must be

provided by a licensed physician, other than those which are

diagnostic or evaluative, are excluded and that school nursing

services of a simple nature are not excluded.” Clovis, 903 F.2d

at 635 (emphasis in original). Accord Neely, 68 F.3d at 971 (“We

believe the better interpretation of Tatro to be that a school

district is not required to provide every service which is ‘medical

in nature.): Detsel, 820 F.2d at 588, 637 F. Supp. at 1026-27;

Shannon M., 787 F. Supp. at 1027. These readings of Tatro

were not seriously questioned until the Eighth Circuit’s decision

in this case.

Indeed, the Office of Special Education Programs (OSEP)

of the United States Department of Education, which administers

the IDEA, recently authored an interpretive letter that disavowed

a bright-line test. The OSEP indicated that, under its view of

Tatro and the lower-court precedents, a “case-by-case” approach

should be followed in determining whether one-to-one nursing

services must be provided by schools. Letter from Thomas Hehir

to John Anderson, 24 IDELR 180 (February 22, 1996); Appendix

D at 64a-67a.

The Eighth Circuit, however, reads Jatro in a dramatically

different way. According to the Court of Appeals, this Court

established a bright-line test: the services of

a physician ... are subject to the medical

services exclusion, but services that can be

provided in the school setting by a nurse or

qualified layperson are not.

Appendix A at 6a. The Eighth Circuit implied that it might not

“agree with this reading of the statute,” but added, [Wie are

bound by the Supreme Court's holding.” Id.

Thus, there is no longer the law laid down by this Court.

There are, instead, two different versions of that law depending

on what circuit one is in. Does the Act create a mechanical test:

“medical” equals “physician”? Only this Court can resolve the

controversy concerning the meaning of the Act and its own

opinions.

THE COURT OF APPEALS’ RULING HAS ADVERSE

POLICY CONSEQUENCES TRANSCENDING ITS

NEGATIVE IMPACT ON THIS AREA OF LAW.

The Eighth Circuit's decision does not just make bad law;

it makes even worse policy. We enumerate just a few of the

adverse consequences.

First, it places school districts in the position of having to

bear a host of catastrophic medical expenses. Typical annual

per-student estimates of the cost of providing one-on-one nursing

range from $28,000 (this case), to $25,000 to $40,000 (Ellison,

597 N.Y.S. 2d at 485), to $30,000 (Shannon M., 787 F. Supp. at

1029), to $56,000 (Fulginiti, 921 F. Supp. at 1325). Multiplied

by the number of seriously disabled children, the costs are

staggering. Particularly when, as here, other sources of funding

are potentially available, it makes no sense to force school

districts with their tight budgets and limited sources of financing

to bear these non-educational costs.

Second, the Eighth Circuit's opinion would take schools

out of the traditional roles they have played. Continuous,

intensive, one-on-one nursing is aot a historic function of our

public schools. As Congress found, schools should not be “asked

to do what they are not intended to do.” H. Rep. No. 101-544 at

11, House Committee on Education and Labor, 101st Cong.,

2nd Sess., reprinted in U.S. Cong. Code & Admin. News 1723

at 1733 (1990).

Third, the Eighth Circuit’s ruling raises significant concerns

of state sovereignty and states’ rights. In Virginia Dept. of Educ.

v. Riley, 106 F.3d 559 (4th Cir. 1997) (en banc), the Fourth Circuit

en banc held that Virginia schools could not be required under

the IDEA to provide educational services to disabled students

who were suspended or expelied for reasons unrelated to their

disabilities. The court concluded that unless Congress had

expressed its intent in “unmistakably clear terms,” which it had

not, states should not be required to provide disabled children

with more than “access to education,” i.e., the same educational

rights that nondisabled children receive. Jd. at 566-68. The court

added that it would raise a serious constitutional question if the

IDEA were interpreted as curtailing the traditional ability that

states have to co discipline in their own classrooms. Id. at

569-72. By the token, the Eighth Circuit’s interpretation

of the IDEA as requiring local school districts to provide

continuous intensive nursing services that are not educational

in nature and thai bear no relation to services historically

provided by schools raises similar federalism concerns.

Finally, while uncertainty in the law is rarely a good thing,

it is especially undesirable when the parties are school districts,

disabled children, and their parents. The “medical services”

exclusion is not an abstract point of law that will only emerge

occasionally as a real dispute. Every disabled child must have

an Individualized Education Plan, and the issue of who must

pay for nursing or other non-physician medical services will

arise again and again in IEP’s. Given the personal feelings and

human emotions involved, it benefits no one for the law to be

unsettled.

—

CONCLUSION

For all the above reasons, the District respectfully requests

that this Court grant its petition for writ of certiorari and direct

the Court of Appeals below to certify the record in this case to

this Court and thereby review the judgment and opinion of the

Court of Appeals below.

Respectfully submitted.

SUE LUETTJOHANN SEITZ

Counsel of Record

E DWARD M. MANSFIELD

BELIN LAMSON McCORMICK

ZUMBACH FLYNN,

A PROFESSIONAL CORPORATION

Attorneys for Petitioner

2000 Financial Center

Des Moines, Iowa 50309

(515) 243-7100

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

FILED FEBRUARY 7, 1997

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 96-1987 NICR

Cedar Rapids Community School District,

Appellant,

Garret F., A minor by his Mother and Next friend, Charlene F.,

Appellee.

Appeal from the United States District Court for the Northern

District of Iowa

Submitted: December 12, 1996

Filed: February 7, 1997

Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit

Judge, and STROM,” Senior District Judge.

STROM, District Judge.

* The Honorable Lyle E. Strom, United States Senior District Judge

for the District of Nebraska, sitting by designation.

Appendix A

This case arises under the Individuals with Disabilities

Education Act, 20 U.S.C. §§ 1400 - 14910. At issue is whether

the IDEA requires the Cedar Rapids Community School District

to provide Garret F. with continuous nursing services while he

is in school. The district court' granted summary judgment in

favor of Garret finding that the necessary services were not

within the “medical services” exclusion of the IDEA, and

therefore, were “related services” which the school district must

provide.

FACTS

In 1987, when he was four years old, Garret was severely

injured in a tragic motorcycle accident. While Garret’s mental

abilities were unaffected, his spinal cord injury left him a

quadriplegic and ventilator dependent.

In the fall of 1988, Garret started kindergarten in the Cedar

Rapids Community School District. He has been in school there

ever since. During the school day, Garret requires a personal

attendant within hearing distance of him at all times to see to

his health care needs. Garret requires urinary bladder

catheterization about once a day, suctioning of his tracheostomy

as needed, food and drink on a regular schedule, repositioning,

ambu bag administration if the ventilator malfunctions, ventilator

setting checks, observation for respiratory distress or autonomic

hyperreflexia, blood pressure monitoring, and bowel

disimpactation in cases of autonomic hyperreflexia. From

kindergarten through the fourth grade, pursuant to an agreement

1. Hon. Edward J. McManus, United States District Court Judge for

the Northern District of lowa, Cedar Rapids Division.

Appendix A

between Garret’s parents and the school district, Garret’s family

provided the personal attendant.’

However, in 1993, when Garret started fifth grade, the

agreement between his parents and the school district was

discontinued. Garret’s mother, Charlene F., requested that the

school district provide Garret’s nursing services while he was

at school. The school district refused stating that it was not

obligated to provide continuous, one-on-one nursing services.

Relying on the IDEA and the Iowa special education laws,

Charlene administratively challenged the school district's

position. After a hearing, the administrative law judge concluded

that the school district had to reimburse Charlene for the nursing

costs she incurred during the 1993-94 school year and had to

provide such services in the future. The school district appealed

to United States District Court.

In district court, both parties filed motions for summary

judgment based on the record from the administrative hearing.

The court granted summary judgment in favor of Garret finding

that the services were not within the scope of the “medical

services” exclusion of the IDEA, and therefore, the school

district was required to provide them as “related services.” The

school district appealed.

2. In kindergarten, Garret's aunt, who was not a registered nurse (RN)

or a licensed practical nurse (LPN) and did not have formal training in medical

services, performed these services. From first through fourth grades, an LPN

performed the services.

Garret's family sees to his health care needs when Garret is at home

after school and on weekends. On weeknights, an LPN is present to check on

Garret every two hours as he sleeps.

Appendix A

STANDARD OF REVIEW

The court will review the district court’s interpretation of

the applicable federal statutes de novo on appeal. Dell v. Board

of Educ., 32 F.3d 1053, 1058 (7th Cir. 1994).

DISCUSSION

In order to receive funds under the IDEA, a state must

demonstrate to the Secretary of Education that it has “in effect

a policy that assures all children with disabilities the right to a

free appropriate public education.” 20 U.S.C. § 1412(1) (Supp.

1996). The phrase “free appropriate public education” is defined

as special education and related services. 20 U.S.C. § 1401(18)

(1990). Thus, if Garret's nursing services qualify as “related

services,” the school district must provide them.

3. The full definition is:

special education and related services that —

(A) have been provided at public expense, under

public supervision and direction, and without charge,

(B) meet the standards of the State educational agency,

secondary school education in the State involved, and

(D) are provided in conformity with the individualized

education program required under secticu 1414(a)(5)

of this title.

20 U.S.C. 1401(a)(18) (1990).

Appendix A

Related services are statutorily defined as:

transportation, and such developmental,

corrective, and other supportive services

(including speech pathology and audiology,

psychological services, physical and

occupational therapy, recreation, including

counseling services, including rehabilitation

counseling, and medical services, except

that such medical services shall be for

diagnostic and evaluation purposes only)

as may be required to assist a child with a

disability to benefit from special education,

and includes the early identification and

assessment of disabling conditions in

children.

20 U.S.C. § 1401(a)(17) (Supp. 1996) (emphasis added). Garret

contends that his nursing services qualify as related services,

but the school district argues that the services are “medical

services” which are expressly excluded from the definition of

supportive services and consequently the definition of related

services.

This court’s decision is controlled by the two step test

pronounced by the Supreme Court in /rving Indep. School Dist.

v. Tatro, 468 U.S. 883 (1984). To determine if a service is a

related service under the IDEA, the court must first determine

whether the service is a supportive service[] ... required to

assist a child with a disability to benefit from special education.”

20 U.S.C. § 1401(17) (1990); Tatro, 468 U.S. at 890. If it is,

then the court must determine if the service is excluded from

Appendix A

the definition of supportive service as a medical service beyond

diagnosis or evaluation. Tatro, 468 U.S. at 890.

There is little argument about whether the services Garret

requires qualify as supportive services necessary to enable him

to enjoy the benefit of special education. If the services are not

available during the school day, Garret cannot attend school and

thereby benefit from special education. Services.. that permit

a child to remain at school during the day are no less related to

the effort to educate than are services that enable the child to

reach, enter, or exit the building” which are expressly provided

for in the IDEA. Id. at 891. Thus, the court finds that the services

Garret requires at school are supportive services.

At the second step, the court must determine whether the

services are excluded from the definition of supportive services

as medical services beyond diagnosis and evaluation. In Tatro,

the Supreme Court established a bright-line test: the services of

a physician (other than for diagnostic and evaluation purposes)

are subject to the medical services exclusion, but services that

can be provided in the school setting by a nurse or qualified

layperson are not. See Tatro, 468 U.S. at 891-95. Regardless of

whether we agree with this reading of the statute and the

regulations, we are bound by the Supreme Court’s holding.

Here, Garret’s services are not provided by a physician, but

rather, a nurse. Thus, based on Tatro, the services are not medical

services, but rather, school health services or supportive services,

both of which meet the definition of related services which the

district must provide. See 34 C.F.R. § 300. 16a), (b)(11) (1996).

The court is aware of several decisions that have not

interpreted Tatro as establishing a bright-line, physician/non-

Appendix A

physician test for medical services. See Detzel v. Board of Educ.

of Auburn, 637 F. Supp. 1022 (N.D.N.Y. 1986), ff d. 820 F.2d

587 (2d Cir. 1987), cert. denied, 484 U.S. 981 (1987); Granite

School Dist. v. Shannon M., 787 F. Supp. 1020 (D. Utah 1992);

Neely v. Rutherford County School, 68 F.3d 965 (6th Cir. 1995).

Going beyond the physician/non-physician distinction the

Supreme Court found in the statute and the regulations, these

courts rely on dicta in Tatro in order to factor into the medical

services exclusion considerations of the nature and extent of

the services performed. The court declines to seize dicta in Tatro

to go beyond the physician/non-physician test which the

Supreme Court sets forth therein.

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT

OF IOWA, CEDAR RAPIDS DIVISION

FILED MARCH 22, 1996

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF IOWA

CEDAR RAPIDS DIVISION

No. C95-5

CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT,

Plaintiff,

vs.

GARRET F., a minor, by his mother and next friend,

CHARLENE FE.

Defendant.

ORDER

This matter is before the court on plaintiff's resisted Motion

for Summary Judgment, filed October 30, 1995, and on

defendant's unresisted Motion for Summary Judgment, filed

December 8, 1995.' Plaintiff's motion denied, defendant's

motion granted.

1. While plaintiff has not resisted defendant's motion, and therefore

defendant's motion is technically unresisted, the parties’ motions for summary

judgment are cross motions on the same legal issues, and therefore the court

will not rely upon LR 14.f. in granting defendant's motion.

Appendix B

Plaintiff brings this action seeking judicial review of a final

decision of an Administrative Law Judge (ALJ) appointed by

the Iowa Department of Education. Plaintiff seeks declaratory

relief that it is not required under either the Individuals With

Disabilities Education Act (IDEA), 20 USC § 1401 et seq., or

the Iowa Special Education laws, IC § 256B, to provide certain

health care services to defendant. The court has jurisdiction

pursuant to 20 USC §§ 1415(e)(4) and 1367.

At the time of the filing of the Complaint, defendant Garret

was a 12 year old sixth grade student. Following an injury in

1987, Garret is quadriplegic and ventilator dependent, and

requires certain health care supervision. As characterized by the

ALJ (and the parties here), the issue is whether Garret’s family

is responsible for providing certain health care services during

school hours to enable Garret to attend public school, or whether

the necessary health care services must be provided during

school hours at no cost to Garret as part of a free appropriate

public education.

A “free appropriate public education” is defined as “special

education and related services.” 20 USC § 1401(a)(18). “Related

services” are defined as

transportation, and such developmental,

corrective, and other supportive services

(including speech pathology and audiology,

psychological services, physical and

occupational therapy, recreation, and medical

and counseling services, except that such

medical services shall be for diagnostic and

evaluation purposes only) as may be required 5

to assist a handicapped child to benefit from

. 10a

Appendix B

special education, and includes the early

identification and assessment of

handicapping conditions in children.

20 USC § 1401(a)(17).

On December 16, 1994, the ALJ found that Garret was a

special education student under the IDEA, and further found

that the health care services required by Garret were “related

services” (and not excluded “medical services”) under 20 USC

§ 1401(a)(17), and “supporting services” under the Iowa Special

Education law, IC § 256B, and therefore defendant was required

to provide the services under either state or federal law.

Plaintiff asserts that the services required by Garret are

neither “related services” which it is obligated to provide under

20 USC § 1401 (a) (17), nor “supporting services” under IC

§ 256B. Instead, plaintiff asserts that the services are “medica!

services” which are excluded from the definition of “related

services” by 20 USC § 1401(a)(17). Additionally, plaintiff asserts

that the services are not “supporting services” under lowa law.

In support, plaintiff urges that the Iowa law mirrors the

requirements of federal law, and if the services are not required

under federal law, then they are not required under Iowa law.

Plaintiff seeks a ruling that it is not required to provide health

care services under either the IDEA or the lowa Special

Education law.

Fed. R. Civ. P. 56(c) provides that summary

judgment shall be entered if the “pleadings,

depositions, answers to interrogatories, and

admissions on file together with the

affidavits, if any, show that there is not a

Appendix B

genuine issue as to any material fact and that

the moving party is entitled to a judgment as

a matter of law.” In deciding whether to grant

a motion for summary judgment, the district

court must view the evidence in favor of the

party opposing the motion and give him the

benefit of all reasonable inferences. Kegel v

Runnels, 793 F.2d 924, 926 (8th Cir. 1986).

However, parties opposing a summary

judgment motion may not rest merely upon

the allegations in their pleadings. Buford v

Tremayne, 747 F.2d 445, 447 (8th Cir. 1984).

The opposing parties must resist the motion

by setting forth specific facts showing that

there is a genuine issue of material fact for

trial. Id., (citing Fed. R. Civ. P. 56(e) and

Burst v. Adolph Coors Co., 650 F.2d 930, 932

(8th Cir. 1981)).

Green v St. Louis Housing Authority, 911 F.2d 65, 68 (8th Cir.

1990).

At issue is the scope of the “medical services” exclusion to

the Individuals with Disabilities Education Act (IDEA), 20 USC

§ 1401(a)(17). In plaintiff's brief and statement of facts, plaintiff

asserts that Garret requires transportation, occupational therapy

consultative services, equipment, a one-on-one teacher associate

to assist with education and mobility, and health services

including urinary bladder catheterization (usually once per

school day), suctioning of his tracheostomy as needed, food and

drink on a regular schedule, change of positioning, ambu bag

administration in case of ventilator malfunctioning, ventilator

setting checks, observations to determine if he is in respiratory

12a

Appendix B

distress or autonomic hyperreflexia, blood pressure monitoring,

and disimpaction in the event of an episode of autonomic

hyperreflexia. A person trained to provide these services must

be within hearing distance of Garret at all times. In response to

plaintiff's inquiry as to how Garret’s care must be provided, the

Iowa Board of Nursing issued a Declaratory Ruling, which

provides in part:

because of [Garret's] need for continuous

monitoring and assessment, the complexity

of the care required, the degree of nursing

judgment required, the life-threatening

aspect of inadequate care, and the need for

the care provider to master many

competencies, ... the care of [Garret] may

not be delegated by a school nurse employed

by [plaintiff] to nonlicensed personnel who

would perform the procedures at school when

a licensed registered nurse is not in the same

building.

Garret maintains that his needs are not as extensive as

suggested by plaintiff, however, under either party’s version,

Garret’s school needs may be satisfied without the services of a

physician.

As noted above, the ALJ determined that Garret’s needs

were not within the medical services exclusion, and that under

either Iowa or federal law, they must be provided by plaintiff, at

plaintiff’s expense. In so doing, and in reliance upon /rving

Independent School District v. Tatro, 468 US 883 (1984), the

ALJ found that a “medical service” is a service that must be

performed by a physician, and that Garret's necessary services

were therefore not within the scope of that exclusion.

13a

Appendix B

Beginning with the standard of review, 20 USC 1415(e)(2)

provides that

in any action brought under this paragraph

the court shall receive the records of the

administrative proceedings, shall hear

additional evidence at the request of a party,

and, basing its decision on the preponderance

of the evidence, shall grant such relief as the

court determines appropriate.

The issue in the Tatro case, supra, was whether clean

intermittent catheterization (CIC), a procedure involving the

insertion of a catheter into the urethra to drain the bladder, was

a “related service” that the school was obliged to provide to the

student. In holding that CIC was such a related service, and was

not an excluded “medical service,” the Court stated:

We begin with the regulations of the

Department of Education, which are entitled

to deference. See, e.g., Blum v. Bacon, 457

U.S. 132, 141, 102 S.Ct. 2355, 2361, 72

L.Ed.2d 728 (1982). The regulations define

“related services” for handicapped children

to include “school health services,” 34 CFR

§ 300.13(a) (1983), which are defined in turn

as “services provided by a qualified school

nurse or other qualified person,”

§ 300.13(b)(10). “Medical services” are

defined as “services provided by a licensed

physician.” 300.13(b)(4). Thus, the Secretary

has determined that the services of a school

nurse otherwise qualifying as a “related

l4a

Appendix B

service” are not subject to exclusion as a

medical service,” but that the services of a

physician are excludable as such.

This definition of “medical services” is

4 reasonable interpretation of congressional

intent. Although Congress devoted little

discussion to the “medical services”

exclusion, the Secretary could reasonably

have concluded that it was designed to spare

schools from an obligation to provide a

service that might well prove unduly

expensive and beyond the range of their

competence. From this understanding of

congressional purpose, the Secretary could

reasonably have concluded that Congress

intended to impose the obligation to provide

school nursing services.

Congress plainly required schools to hire

various specially trained personnel to help

handicapped children, such as “trained

occupational therapists, speech therapists,

psychologists, social workers and other

appropriately trained personnel.” S.Rep. No.

94-168, supra, at 33, U.S.Code Cong. &

Admin.News 1975, p. 1457. School nurses

have long been a part of the educational

system, and the Secretary could therefore

reasonably conclude that school nursing

services are not the sort of burden that

Congress intended to exclude as a “medical

service.” By limiting the “medical services”

15a

Appendix B

exclusion to the services of a physician or

hospital, both far more expensive, the

Secretary has given a permissible

construction to the provision.

Tatro, supra, 468 US at 891-893 (footnotes omitted).

As noted above, accepting the most comprehensive

allegations as to services required by Garret, it is undisputed

that the services can be provided by a school nurse. The Tatro

Court used precision in noting that the “medical services”

exclusion is limited to the services of a physician or hospital. In

accordance with the appropriate standards, in light of Tatro, and

for the reasons set forth in the ALJ’s thorough decision,

plaintiff's Motion for Summary Judgment will be denied, and

defendant’s cross-motion for summary judgment will be granted.

But see, e. g., Neely u Rutherford County School, 68 F3d 965

(6th Cir. 1995) (holding that court must weigh risk, liability,

and burden of providing service, and that Tatro does not establish

a “bright-line” rule that any medical service which can be

performed by someone other than a licensed physician falls

outside scope of “medical services” exception).

Due to the court’s disposition of this matter, the court need

not address the issue of state law requirements. The parties

having fully developed their positions in their briefs, oral

argument is unnecessary.

It is therefore

ORDERED

Plaintiff's Motion for Summary Judgment denied,

defendant’s Motion for Summary Judgment granted.

16a

Appendix B

March 22, 1996.

s/ Edward McManus

Edward McManus, Judge

UNITED STATES DISTRICT COURT

17a

APPENDIX C — DECISION OF THE ADMINISTRATIVE

LAW JUDGE DATED DECEMBER 16, 1994

DEPARTMENT OF EDUCATION

Admin. Doc. SE-98

In re Garret F.

Charlene F.,

Appellant

vs.

Cedar Rapids Community School District, and

Grant Wood Area Education Agency 10

Appellees

DECISION

The above entitled matter was heard on October 31, 1994,

before Administrative Law Judge (ALJ) Larry Bartlett. With

agreement of the parties, the hearing was recessed until

November 1, and later until November 14. The hearing was

concluded on November 14. The parties mutually agreed on

December 2 as the date to have briefs postmarked. Briefs were

received by the ALJ on December 5.

The Appellant was represented by Attorney Douglas

Oelschlaeger, and the Cedar Rapids Community School District

(District) was represented by Attorney Sue Seitz. The Executive

18a

Appendix C

Director of Special Education from Grant Wood Area Education

Agency 10 (AEA), Paula Vincent, was present on behalf of the

AEA, but the AEA was not represented by legal counsel.

The hearing was held pursuant to the authority of Section

256B.6, The Code of Iowa, and was conducted pursuant to the

terms of Chapter 281-41, lowa Administrative Code. The hearing

was open to the public at the request of Appellant. The witnesses

were sequestered upon motion of the Appellant. Garret was in

attendance on the third day of hearing.

The record was kept open at the end of the hearing for the

purpose of receiving a full and certified copy of a Declaratory

Ruling of the Iowa Board of Nursing. That copy was received

on December 5.

On or about October 12, 1993, the Appellant filed an

affidavit of appeal regarding her son, Garret. (The affidavit was

first sent by telephonic facsimile on October 8, 1993). In it, the

Appellant challenged the District's refusal to provide Garret with

a health care provider to “assist Garret with physical needs

during the school day.” The hearing of the appeal was delayed

on numerous occasions at the request of the parties, who

attempted to find a mutually satisfactory resolution to the

dispute.

At the conclusion of the hearing, this ALJ announced that

his goal for completion of a decision would be five working

days following his receipt of the briefs. The extensive record

and important legal issues involved resulted in that time estimate

being off the mark by about one week. For this he apologizes.

19a

Appendix C

Finding of Fact

The ALJ finds that he and the Department of Education

have jurisdiction over the parties and subject matter involved in

this proceeding.

The facts are largely undisputed.

Garret F. is a twelve-year-old boy who lives with his

divorced mother and older brother in the District. Garret’s father

resides in the general community area, and Garret visits his

father’s home every other weekend. Garret has attended school

in the District since kindergarten and is currently a sixth-grade

student. He attends a typical middle school program at Roosevelt

School. He appears to be friendly, creative, above-average in

ability and is considered academically successful in school. His

most recently received grade report included one C, one B-plus,

and the rest were A’s. Garret receives no specially designed

instruction. He does receive a number of support services.

When Garret was four years old, he was injured in an

unusual motorcycle accident. While riding on the rear seat of a

motorcycle, a blanket Garret had with him became entangled in

the drive mechanism of the cycle, suddenly jerking his head

and causing injury to his spinal column. He has since been

paralyzed from his neck down. He is wheelchair bound and is

ventilator dependent. He does have complete head movement,

is able to speak, and controls his motorized wheelchair through

use of a puff and suck straw. Being ventilator dependent means

that he breathes only with external aids, usually an electric

ventilator, and occasionally by someone else’s manual pumping

of an air bag attached to his tracheotomy tube when the ventilator

is being maintained. This later procedure is called ambu bagging.

20a

Appendix C

While in school, Garret needs a responsible person in his

vicinity to attend to his personal needs. He needs assistance

with urinary bladder catheterization once a day, the suctioning

of his tracheotomy tube as needed, but at least once every six

hours, with food and drink at lunchtime, in getting into a

reclining position for five minutes of each hour, and ambu

bagging occasionally as needed when the ventilator is checked

for proper functioning. He also needs assistance from someone

familiar with his ventilator in the event there is a malfunction

or electrical problem, and someone who can perform emergency

procedures in the event he experiences autonomic hyperreflexia.

Autonemic hyperreflexia is an uncontrolled visceral reaction to

anxiety or a full bladder. Blood pressure increases, heart rate

increases, and flushing and sweating may occur. Garret has not

experienced autonomic hyperreflexia frequently in recent years,

and it has usually been alleviated by catheterization. He has not

ever experienced autonomic hyperreflexia at school. Garret is

capable of communicating his needs orally or in another fashion

so long as he has not been rendered unable to do so by an

extended lack of oxygen.

It is disputed as to whether a registered nurse licensed by

the state (RN), a licensed practical nurse (LPN), or a skilled

and trained care provider is required, or necessary, as the

responsible person to be in Garret’s proximity while he attends

school. It is also disputed as to who is responsible for providing

or paying for this person’s services.

At first, health care at school was provided through health

insurance obtained through Garret’s father’s employment. At

some later time, however, the maximum payment limit was

reached and the insurance coverage ceased. Garret’s mother has

since been able to obtain insurance coverage through a special

212

Appendix C

program for which she pays an annual premium of $1,183.

However, its annual coverage limit for health care is normally

exceeded by mid-year. Health care assistance the remainder of

the calendar year, including the first part of each new school

year in the fall, is provided as a result of money placed in a trust

fund for Garret’s support that was established following his

accident. The current cost of health care to Garret's family is

$22.00 per hour ($18.50 for 1993-94), including the seven-hour

school day when school is in session.

Health care is provided Garret at home and school for a

total of about 16 hours a day during the week. (This includes

school time on school days.) No professional health care

provider is employed in Garret’s care on weekends. Care

between school-time and 1 1:00 p.m. weekdays and on weekends

is provided by Garret’s family and friends. His friends are

familiar with his needs and his ventilator management. A health

care provider is in the home during the week-night sleeping hours

to attend to Garret’s needs, including being turned in his sleep

every two hours, and to allow the family undisturbed sleep time.

Garret’s pediatrician testified that he has certified the need of

licensed nursing services for purposes of insurance coverage.

Garret’s mother testified that she would hire a nonlicensed

trained health care provider at a lower cost if the insurance

company would allow it.

At the current time, professional health care is provided by

three LPNs employed and provided by a local health care agency.

The LPNs are supervised by RNs employed by the agency. A

RN visits the home about two times per year in a supervisory

capacity. Even though insurance pays for care only for the first

half of the year, Garret’s mother testified that it is impractical

to not maintain the same health care year around.

22a

Appendix C

The pediatrician that has attended Garret since his accident

testified about Garret’s medical needs. In 1989, when Garret

returned to school following his accident, the physician provided

the school with detailed suggestions and recommendations for

his care at school. He listed eight competencies necessary to

the person or persons to have in caring for Garret at school. He

testified that a health care provider or nurse’s aid could be trained

in or taught all of the competencies. The record indicated that

Rus and LPNs also needed to be trained on Garret's specific

equipment. According to the doctor, none of the eight

competencies required the training or experience of a physician.

As a result of a change in procedures for dealing with the

health needs of students with disabilities initiated by the

Department of Education, in the summer of 1993 the District

undertook a detailed assessment of Garret’s health care needs

while at school. The District requested and obtained a physical

examination, health status report, and responses from the

pediatrician to specific health related questions. In response to

the question of training or skills needed by the person providing

health care to Garret, the pediatrician partially responded:

“I would think a minimum degree of LPN or

a skilled care provider who has demonstrated

the competencies as directed in the 1988

letter would be necessary to adequately and

safely perform the above procedures.”

In the fall of 1993, the physician was asked by the District

to respond in writing to additional clarifying questions about

Garret’s health care needs at school. Nothing that was provided

in the way of additional information from the physician indicated

that he had changed his opinion that an LPN or trained and

23a

Appendix C

skilled health care provider could provide adequate and

appropriate care to Garret while at school. He did state in

response to questions from the ALJ during testimony that an

LPN, or trained and skilled health care provider, did need general

supervision from a RN or a physician, but the supervisor did

not have to be on-site so long as contact with the supervisor

was available within 10 to 15 minutes.

For Garret’s first year in school (1988-89), his health care

services were performed by his aunt, who was 18-years-old at

the beginning of the school year. The aunt had no formal training

in medical services and was not an LPN or RN. She apparently

learned by experience during time she spent with the family in

the hospital and at home. Garret’s physician was aware that the

aunt would provide the services, and he had no objection.

Garret has never needed emergency care at school. The

LPNs keep a daily log of health care of Garret at school for

sharing with Garret’s mother.

Garret’s mother testified that she first sought District

payment for health care services in the summer of 1988 before

Garret started his first year of school. She stated that she had

brought up the subject several times since. The most recent

request was in March, 1993, when she orally asked a District

administrator whether the District would pay for the health care

provider. In June, 1993, Garret’s mother had not received a

response, and telephoned the District Director of Special

Services. The Director responded by letter dated June 7 that the

matter was being referred to the District’s legal counsel. In a

subsequent letter dated June 17, the Director notified Garret’s

mother that the District needed additional medical information

so that the District could comply with new Department of

24a

Appendix C

Education rules regarding provision of special health services

(281-41.21-.23 LA. C.). He stated in the letter that once the

information was provided, a meeting would be held to prepare

a health care plan for Garret.

By letter dated July 28, 1993, Garret’s mother expressly

requested District payment of health care service cost while

Garret was at school. She cited legal authority on the point that

such service provision was required by law. By letter dated

August 3, the District’s Director again requested detailed health

information on Garret.

In response to the August 3 letter, Garret’s mother and

physician responded to a number of questions. The materials

provided the District in that letter stated that Garret’s health has

been quite good. It stated that he required urinary bladder

catheterization as needed, normally once a day during school

hours. Suctioning (cleaning) of his tracheostomy on an as-

needed basis, and assistance with food and drink. The only

emergency situation foreseen was a potential problem with the

ventilator, airway obstruction, or respiratory infection. His

ventilation could be supported temporarily by ambu bagging

while problems with the ventilator were investigated. Garret's

ventilator has an alarm system which provides a loud report

when air pressure is low due to a leak, or when plugged and

suctioning is needed. A low battery is also reported through an

alarm. Garret’s mother testified that she recently used the ambu

bag for Garret’s breathing during a highway trip from Cedar

Rapids io Denver, Colorado with no apparent consequence.

A meeting between Garret’s mother and District staff to

discuss his health care needs and to develop an individual health

care plan (IH) was scheduled for September 2, 1993. School

25a

Appendix C

started August 30, but District staff conflicts resulting from

preparations for the opening of school resulted in the meeting

not being scheduled earlier. On September l. Garret's mother

requeste i postponement of the meeting so that she might be

better prepared. She also stated that she would seek the help of

an attorney since the District had advised her that the District's

attorney might be present at the meeting.

A meeting to develop an IH was held on September 10.

Garret’s mother was accompanied by a parent advocate. About

13 to 14 persons were present, including two of the District's

school nurses and the District’s Manager of health Services, who

is an experienced nurse. An individualized education program

(IEP) was developed which provided only for the services of an

occupational therapist on a consultative basis of 60 minutes per

semester. Attached to and made part of the IEP was the IH

developed at the same meeting primarily by the District’s nursing

staff present with input from Garret’s mother. Garret's

pediatrician was not present. After outlining Garret’s specific

health care needs, the IH concluded that because Garret

“requires continuous monitoring and assessment: highly

technical and extensive nature of care, life threatening prospect

of inadequate care, mastery of numerous competencies,” Garret

needed “continuous care by an appropriate licensed practitioner.”

The level of supervision required was considered to be “In school

setting-registered nurse.” District staff concluded orally at that

meeting that the items in the IHP were medical services rather

than health care services, and thus, were not the responsibility

of the District to provide. This position was reiterated in a letter

dated September 13 from the District Director of Special

Services to Garret’s mother.

In a six-page dissenting opinion dated September 20,

26a

Appendix C

Garret’s mother outlined the reasons for her disagreement with

decisions on the IH. She stated that, except for tracheostomy

obstructions blocking his air source, Garret was capable of and

able to advise a care provider of his needs and the manner in

which they should be met. She pointed out that Garret’s presence

in the classroom hac been “remarkably, uneventful,” and “non-

disturbing to the regular education environment,” while

providing Garret with a positive physical, social, and healthy

setting. She complained that inadequate attention had been given

to Garret’s physician’s recommendations about the training

needed for a person to care for Garret while at school. She

reminded the District that his health care needs were met during

the 1988-89 school year by a “properly-trained non-licensed

care provider,” and from 1989-1993 by a properly trained LPN.

She suggested that some of the care items (e.g., skin) in the IHP

were no longer needed, or should be modified.~

In response to the dissent, the AEA Executive Director of

Special Education conducted an investigation of the situation.

She found, as documented on October 28, that the parties

continued to be interested in resolving the situation and were

willing to explore alternative possibilities. The District was

willing to consider employing a non-licensed health provider

for Garret while at school, but was concerned with a conflict

with the standards of the State Board of Nursing. Obtaining a

waiver of licensed nursing services from the Department of

Human services was explored, but was not feasible because the

family income exceeded established guidelines. Continued

efforts at a mutually satisfactory resolution was encouraged, but

no specific decision with regard to the dissent was rendered.

The District does provide a number of services and special

equipment for Garret, but except for occupational therapy, they

27a

Appendix C

are not contained in the September 10 IEP. A full-time teacher

associate has assisted Garret since first-grade with his

educational needs, such as page turning, setting up his computer,

assisting him in getting around the building. He is provided

access to a personal computer and has special equipment

provided to assist his access to the computer. He receives

transportation to and from school, use of a lap tray on occasion,

occupational therapy, and for two years he was in the school’s

extended learning (talented and gifted) program. He is in a

regular physical education program with appropriate

modifications. (This is mentioned, but not detailed in the IH.)

It was stipulated by the District that a TA and a health care

provider may not both be necessary to assist Garret at school.

Should it be determined that the school is responsible for Garret’s

health care needs, the TA’s duties may be assigned to the health

care provider.

In 1993-94, District nurses salaries were governed by a

master bargaining agreement. Under that contract, beginning

nurses received an annual salary of $19,550. In addition, the

District provided additional funds for insurance, retirement, and

miscellaneous benefits in the amount of $8,681.75. The total

expense for the employment of a beginning nurse in the District

for the 1993-94 school year was $28,231.75. For a nurse with

10 years experience and no advanced college credits, the amount

was $37,270.84. At the current time, the District employs no

nurses with less than 10 years seniority.

The District does not currently employ LPNs, only RNs or

Bachelor of Science Nurses (BSNs). Some teacher associates

(TA) happen to have LPN licensure, but are not employed to

perform LPN duties. The District does not hire nonlicensed

28a

Appendix C

health care providers and would not allow health care to be

provided by an unlicensed provider at school, even if arranged

for and paid for by parents. No District school building currently

has a full-time nurse. No student currently has a full-time nurse

assigned to him or her.

The current TA assigned to assist Garret holds licensure as

a LPN. The District made an effort to hire someone who could

be delegated his health care services in the event it was later

determined that they could be delegated. The TA does not

currently provide LPN services due to the Board of Nursing

Ruling on delegation.

The record establishes that for the purposes of employment,

i.e. contracting, transfer, negotiating and termination, nurses are

treated by state law and the District the same as licensed teachers.

If the District hires a RN to serve Garret’s needs at school, he

or she will be doing so on the continuing contract law basis and

would be employed for at least the entire remainder of the year

whether or not Garret continued to need those services.

Garret is currently the only ventilator-dependent student in

the District’s schools; however, another such student may be

coming to school in the near future. The District has provided,

and currently does provide, many health care services for other

students. Included are such services as care for students who

need urinary catheterization, food and drink, oxygen supplement

positioning, and suctioning. The primary difference between

Garret’s situation and that of other students is his dependency

on his ventilator for life support.

The District currently has about 17,500 students in 33 school

buildings. Approximately 2,200 students are identified as

* — <i P

29a

Appendix C

needing special education or special services. Eight different

persons are hired to provide nursing services to the District's

K-12 students with a full-time equivalency (FTE) of 6.1 staff

members (Brief of the District said 5.8, but the District staff in

testimony said 6.1.) Only 1.4 FTE school nurses are funded

with special education funds, and only one full-time school nurse

serves students with disabilities.

In preparing for Garret’s IHP meeting, District staff

members made inquiries nationally about how supervision of a

ventilator dependent child are handled. They learned that a wide

variety of levels of supervision, a “whole gambit of care,” is

used in the care of ventilator dependent children at school. The

range of training required for direct care and the supervision of

such students nationally was from nonlicensed personnel to RNs.

The District’s Manager of Health Services, a trained and

experienced pediatric nurse, testified that it was her opinion that

Garret’s care at school required the supervision of a RN. She

testified, along with other District staff members, that if the

school were responsible for Garret’s health care while at school,

a RN would have to be on the school site to provide for care

directly, or for supervision of the care provider. If the district

were not responsible for Garret’s health care at school, and

Garret's family was responsible, he would be allowed to attend

school with a LPN under the general supervision of a RN.

Apparently, the issues of delegation and supervision of

health care duties by nurses are not static. A RN may “delegate”

health care services requiring specialized training, but not

licensure, to nonlicensed persons through the use of his or her

“best judgment.” On the other hand, “supervision” refers to

overseeing or monitoring the provision of health care given by

30a

Appendix C

a licensed health care provider, such as a LPN. From time to

time, the lowa Board of Nursing apparently attempts to provide

direction on the scope of nursing practice. The result may be

more confusing than helpful.

The District’s special education school nurse testified that

prior to 1988, she was able to exercise a considerable degree of

delegation based on her professional judgment. As an example,

she stated that prior to 1988, she was able to and did delegate in

a number of situations, the feeding and administration of

medications through gastronomy tubes to students while at

school. Delegation was required practically because the District,

as part of its effort to comply with the least restrictive

environment mandate of the law, was attempting to close a

segregated school facility serving, among other needs, students

needing health care. Since it was not possible for the special

education nurse to be on several sites at once while the

gastronomy tube feeding and medication administration were

taking place, she delegated the duties to nonlicensed staff she

had personally trained.

Apparently, in 1988, the Board of Nursing issued a

“guideline” or “position paper” outlining specific tasks that must

be conducted in school settings by a M, those that may be

conducted by an LPN, and those that may be performed by

nonlicensed staff. That 1988 document provided that only a RN

could provide gastronomy tube feeding and medication and

delegation of those tasks at District schools was stopped. The

District then received a temporary waiver from the Board of

Nursing for students in its many different buildings. That waiver

was later rescinded. Even later, the guideline itself was rescinded

and RNs again were abie to delegate gastronomy tube feeding

and medication administration. There is no indication in the

3la

Appendix C

record that these changes in Board of Nursing interpretations

ever occurred through the rule-making process envisioned in

the lowa Administrative Procedure Act (Chapter 17A, lowa

Code) and a review of current rules of the Board of Nursing

contained in the Iowa Administrative Code contain no reference

to specific duties and services that must be conducted by RNs

or any other health care provider.

On May 20, 1994, the District filed a petition for a

declaratory ruling with the Board of Nursing. The petition

outlined Garret’s health care needs and asked whether they could

be delegated by a school employed RN to nonlicensed personnel.

Under Section 17A.9 of The Code of 1993, state administrative

agencies are authorized to issue rulings “as to the applicability

of any statutory provision, rule, or other written statement of

law or policy decision or order of the agency.”

The Board of Nursing, in issuing a response to the District’s

request in Declaratory Ruling No. 63, dated September 22, 1994,

accepted the competencies needed for a person providing care

for Garret as described by his physician and mother, and

concluded that they were competencies “within the scope of

the practice of nursing and require the knowledge and skills

attributed to nurses.” An analysis of each of the nine needed

tasks (competencies) being considered for delegation had been

requested and received by the Board. The District response to

the request stated that Garret’s conditior in regard to autonomic

hyperreflexia was not stable, which is contrary to the remainder

of the record in this hearing. i

As authority for its conclusion, the Board cited a March

1988 “Position Statement of School Nurse Task Force,” a

“guideline for RN delegation to nonlicensed personnel,” and a

32a

Appendix C

December 7, 1990, “Position Paper on Delegation” issued by

the National Council of State Boards of Nursing. Inc. No citation

was provided to state rules or statutes which specifically control

the question and none has been found by this ALJ. (Perhaps,

the 1988 document is that referenced in testimony of the school

nurse, but she testified it had been recinded.) There was citation

in the Ruling to 655-6.2(5) Iowa Administrative Code which

reads as follows:

6.2(5) The registered nurse shall recognize

and understand the legal implications of

accountability. Accountability includes but

need not be limited to the following:

a. Performing or supervising those activities

and functions which require the knowledge

and skill level currently ascribed to the

registered nurse and seeking assistance when

activities and functions are beyond the

licensee’s scope of preparation.

b. Assigning and supervising Persons

performing those activities or functions

which do not require the knowledge and skill

level currently ascribed to the registered

nurse.

c. Supervising among other things includes

any or all of the following:

33a

Appendix C

(2) Providing leadership in the assessment,

planning, implementation and evaluation of

nursing care.

(3) Delegating functions or activities while

retaining accountability.

(4) Determining that nursing care being

provided is adequate and delivered

appropriately.

d. Executing the regimen prescribed by a

physician. In executing the medical regimen

as prescribed by a physician (e.g., medication

not administered) is not carried out, based

on the registered nurse’s professional

judgment, accountability shall include but

need not be limited to the following:

(1) Timely notification to the physician who

prescribed the medical regimen that the

order(s) had not been executed and reason(s)

for same.

(2) Documentation on the patient/client

medical record that the physician has been

notified and reason(s) for not executing the

order(s). lowa Administrative Code 655-

6.205)

(1) Personally observing a function or

(ey That rule is extremely vague and provides no guidance to this

activity.

ALJ as to “those activities and functions which require the

knowledge and skill level currently ascribed to the registered

nurse.” (What are they and who ascribes them?)

34a

Appendix C

The Ruling recognized, as does this ALJ, that the above

rules “clearly” authorize a registered nurse to delegate functions

or activities and holds the nurse accountable for such delegation,

but, without being specific, the Ruling also stated that care

included in the “core of the nursing process requires specialized

nursing knowledge and judgment that may not be delegated.”

(What is the core of the nursing process?) The Board also stated

in its Ruling that a nurse should “not delegate practice pervasive

functions of assessment, evaluation, and nursing judgement.”

The Board Ruling concluded that the care of a student with

Garret's medical needs at school could be delegated to

nonlicensed personnel, but only if a supervising licensed RN

was in the same building.

The Ruling in two places mentions Garret’s current situation

of service provided at home and school by a LPN and the year

that services were provided at school by a “relative, both without

criticism.” It also recognized that his weekend care is provided

by his family. The Ruling does not discuss the adequacy of this

weekend care in the absence of a registered nurse on-site. The

Ruling does not provide citation to the situational differences

in nursing practice dependent upon whether a child is in school

or in another situation. The record does not indicate whether or

not the District appealed the Ruling under state law.

District staff, especially the school nurses, are under the

belief that failure to follow the Ruling of the Board of Nursing

may be punished by loss of nursing licensure.

The salary for the TA assigned Garret to assist with his

educational needs for the 1994-95 school year is $8,366.09. With

staff benefits of $1,182.13, the total cost of the TA to the District

is $9,548.22. This amount of expense for Garret’s education

35a

Appendix C

would be saved if the District assigned TA duties to the health

care provider. For purposes of equal comparison only, a

beginning registered nurse in the District for 1994-95 would

cost (salary and benefits) the District $28,630.79 ($28,231.75

for 1993-94), and a nurse with 10 years experience would cost

the District $37,828.03 ($37,270.84 for 1993-94). Thus, if the

District had to assign a RN full-time to Garret’s attendance center

and maintain a teaching assistant, the total District cost would

be about $38,179.01 when a first year nurse is used and

$47,376.25 when a nurse with 10 years experience is used. These

figures would be reduced by a savings equivalent to .2 FTE nurse

because a part-time nurse would not any longer need to be

assigned to the attendance center. Reducing the building nursing

costs by one-fifth, a full-time RN, and a TA assigned to the

building for Garret in 1994-95 would cost the District about

$32,452.85 for a nurse with one year’s experience, and

$39,810.64 for a nurse with 10 years experience. That is

$22,904.63 and $30,262.42, respectively, more than the District

currently pays for Garret’s TA, only. If the teaching associate

were reduced and her duties assigned to a RN supervising

Garret’s health care needs, the .2 FTE nurse currently assigned

to the building could not be reduced, because the nurse assigned

to Garret would not be able to give his or her attention to the

students in the rest of the building. The approximate cost then

would be $28,630.79 for a first year nurse and $37,828.03 for a

nurse with 10 years experience. Added to that would be the cost

of a .2 FTE nurse ($5,726.16 for a first year nurse, $7,565.61

for a 10-year nurse). Thus, using cost figures for nurses with no

previous experience and those with 10 years experience, the

additional cost range to the District for taking over responsibility

for Garret’s health care at school, and complying with the Board

of Nursing interpretation of having a RN on-site would range

between $28,630.79 and $39,810.64. (First year nurse assigned

36a

Appendix C

teacher associate duties v. nurse with 10 years experience,

teacher associate and reduction of the .2 FTE nurse).

These are potential increased costs to the District over the

current cost of a TA only of $19,082.57 and $30,262.42,

respectively. These potential costs reflect the use of a RN on-

site to supervise or provide directly Garret’s health care needs.

The amount of difference depends on how the District would

determine to provide the services. The record did not establish

other potentially less costly approaches to those outlined here.

Presumably, the District did not appeal the Declaratory Ruling

of the Board of Nursing pursuant to the lowa Administrative

Procedures Act, and may be bound by it. 17A.9, 17A.19 LA.C.

Garret is currently weighted for state aid funding purposes

at 3.54 under a state rules exception which generates about

$12,700 revenue to be divided between regular education and

special education funds. No more than $3,600 is assigned to

regular education funding. Normally, a student weighted 3.55

generates only .27 of the approximately $3,600 (1.0 weighting)

for the regular education account ($972), and the remainder is

placed in the special education account, but the record here is

not clear on the exact amount due to Grant’s weighting resulting

from a rule exception. Garret receives no special education

instructional services. Occupational therapy is provided by the

AEA.

About $1200 average cost per special education pupil is

spent for transportation in the District. Dollars generated through

the weighted enrollment count are not assigned to any one child.

District special education funds are pooled and may be used for

the individual needs of any student with disabilities without

regard to the amount of revenues actually generated as a result

37a

Appendix C

of that individual student’s enrollment in school. If District

expenditures in special education in any fiscal year exceed

revenues, the District may petition the state of lowa through the

School Budget Review Committee (SBRC) for replacement of

the deficit funds. This is accomplished by the SBRC giving the

District a pro-rated amount of funds returned to the state as a

result of other districts having a surplus in their special education

accounts and authority to raise the remainder through local

property tax. At the current time, local deficit spending for

special education can be made up through procedures provided

in state law, and the educational needs of other students, both

regular and special education, do not have to be affected. The

District normally expends more funds annually on special

education students than it generates under the weighted state

aid formula.

Legal requirements and legal definitions of related services

and the cost to the District are the only reason the District does

not currently pay for Garret’s health care services provided while

at school.

The District Director of Special Services testified that,

although Garret had previously been allowed to attend one year

without a licensed health care provider, as provided by the

family, the Ruling by the Board of Nursing now places that

option in doubt. If health care at the school continues to be

provided by the family, the District may not allow again the use

of a nonlicensed health care provider in the future.

In response to the ALJ’s question about the type of program

someone like Garret would be provided without external funding

support through a trust fund, insurance or Medicaid, and with

the District’s continued refusal to provide health care services,

38a

Appendix C

the District’s Director of Special Needs indicated that a

homebound program would be the likely alternative to the

current situation. In objecting to the question, the Attorney for

the District opined that some type of funding would likely be

available in the event that insurance and trust fund resources

become exhausted. The record not clear on that point.

In rebuttal testimony, Garret’s pediatrician expressed

disagreement with the District’s IHP conclusion that Garret

required constant health care supervision, monitoring, and

assessment by a registered nurse on site. He stated that someone

specially trained on the ventilator would need to be within

“earshot” at all times to respond to Garret’s health needs,

especially when his ventilator signals problems, but that constant

health monitoring was not required. In his opinion, medical

judgment would be more important in later determining an

underlying cause of a problem, but was not necessary in

immediate response situations. For instance, a monitor would

need to unplug a clogged tracheostomy tube, but medical

judgment would not be required until later in an effort to

determine why the tube became plugged. The physician again

stated that Garret is in generally good health and has not required

his professional attention for some time, except for colds and

sore throats. He stated that Garret’s autonomic hyperreflexia

condition was stable.

Also, in rebuttal testimony, Garret’s father testified that

Garret visits him in his home every other weekend without

nursing or other health care services. He is frequently

accompanied by a young friend who can be with Garret and see

to his needs when the father is not in the immediate vicinity.

Garret’s mother reiterated in rebuttal testimony that there

39a

Appendix C

is no nursing service provided Garret from the end of the school

day until about 11:00 p.m. on school days or at any time on

weekends. Garret has friends over and sometimes goes to the

homes of friends. He frequently goes outside into the family

yard by himself. Persons are not always in his immediate

proximity, but neither is he left completely alone. She stated

that health care at school can be provided by a properly trained

nonlicensed care provider just as occurs at times at home and

that she would prefer to do the training herself. She stated that

she had previously trained all the nurses herself. She strongly

denied that a licensed nurse was required to care for Garret.

She stated again during rebuttal that a LPN and services of a

health care agency were used by her only because the insurance

company would not pay a nonlicensed person to provide care.

Conclusions of Law

The issues presented in this appeal are clearly the result of

honest differences of opinions on what the law and best practice

require. There is no evidence that personal animosity or hostility

have been present.

The primary issue in this appeal is whether Garret's mother

is responsible for providing his health care needs while he is at

school or whether his health care at school must be provided at

no cost to the parent as part of a free appropriate public

education. 20 U.S.C. Section 1412. This issue has been the

subject of dispute and litigation in numerous locations around

the country, but appears to be one of first impression in Iowa.

Federal statutes at 20 U.S.C. Section 1412 provide that

children with disabilities, including “orthopedic impairments”

and “other health impairments,” are to be provided “special

40a

Appendix C

education and related services” when their disabilities adversely

affect their academic performance. 34 C.F.R. 300.7(a)(1);

300.7(b}(7); 300.7(b)(8). Federal law is mirrored in state law

which requires children handicapped in obtaining an education

because of disabilities, including physical, be provided “special

education.” That term includes instruction, “transportation and

corrective and supportive services required to assist children

requiring special education” in obtaining “educational programs

and opportunities.” Section 256B.1, Iowa Code 1993; 281-41.2

and 41.3, lowa Administrative Code.

Federal law requires that special education and related

services be provided to the maximum extent appropriate with

children who are nondisabled. 20 U.S.C. Section 1412; 34 C. FR.

300.550. Iowa may be more proscriptive when it requires that:

to the maximum extent possible, children

requiring special education shall attend

regular classes and shall be educated with

children who do not require special

education. Whenever possible, hindrances to

learning and to the normal functioning of

children requiring special education within

the regular school environment shall be

overcome by the provision of special aids and

services rather than by separate programs for

those in need of special education. Special

classes, separate schooling or other removal

of children requiring special education from

the regular educational environment, shall

occur only when, and to the extent that the

nature or severity of the educational handicap

is such that education in regular classes, even

4la

Appendix C

with the use of supplementary aids and

services, cannot be accomplished satisfactorily.

(emphasis added). 256 B.2(3), lowa Code 1993.

Unlike state law, which includes corrective and supporting

services in its definition of special education, federal law treats

special education and related services somewhat separately. As

defined in federal law, a related service is defined as any service

“required to assist a child with a disability to benefit from special

education,” and includes “school health services.” 34 C.F.R.

300.16. “School health services means services provided by a

qualified school nurse or other qualified person.” 34 C.F.R.

300.16 (b)(11). “Medical services” are expressly included as a

related service, but are limited in definition to “services provided

by licensed physician to determine a child’s medically related

disability.” 34 C. FR. 300.16 (b)(4). Related services, thus,

includes a physician’s diagnostic and evaluation services, but

— treatment services. 20 U.S. C. A. Section 1401(a)(17), 1994

upp.

The issue of exclusion of medical treatment as a related

service was the primary issue before the Supreme Court in Irving

Independent School District v. Tatro, 104 S. Ct. 3371 (1984).

Amber Tatro was an 8-year-old girl with spine bifida. As a result,

she had orthopedic impairments and was, like Garret, unable to

empty her bladder voluntarily. In order to prevent injury to her

kidneys, she was catheterized every three to four hours, including

the time she was at school. The Court characterized

catheterization as a simple procedure that could be “performed

in a few minutes by a lay person with less than an hour's

training.” Id., at 3374. Amber’s parents, babysitter, and teenage

brother were all qualified to administer the procedure.

42a

Appendix C

The legal issue arose, however, when school officials refused

to allow school personnel to administer catheterization while

Amber was at school. The school argued that catheterization

was a medical service which exceeded the diagnosis and

evaluation limitations of the medical service requirement of

related services.

In its analysis, the Court determined that catheterization

was a related service because it “enabled a handicapped child

to remain at school during the day” and thus have meaningful

access to education. Id., at 3377. The Court also determined

that catheterization did not fall into the medical treatment

exclusion of the statute or Department of Education rules. It

affirmed the Department’s interpretation, through rule making,

that the services of a school nurse could be required as a related

service, and treatment by a “licensed physician” could be

excluded.

In dicta, which later became important in other subsequent

litigation on the issue, the Court noted that a distinction between

nursing services and treatment by a physician as a related service

was reasonable. Part of the reasonableness was concluded to be

a consideration of differentiation of costs between nursing and

physician services and the fact that school nurses “have long

been a part of the educational system.” Id., at 3378.

The Court did not say that cost was a factor to be considered

by courts. It merely speculated that Congress and the Department

of Education may have used expense, as well as limitations of

educators’ expertise in medical matters, for making a distinction

between nursing services and physician treatment as a related

service. The Court expressly rejected the school’s argument that

services provided in accordance with a physician’s prescription

43a

Appendix C

and general supervision fell within the medical treatment

exclusion. It noted that nurses in the school were authorized to

dispense medications and administer emergency injections to

nondisabled students in accordance with a physician’s

prescription. Id.

Thus, in Tatro, the Court affirmed a Congressional and

administrative distinction between nursing services and medical

treatment as a related service under the Education of the

Handicapped Act, now Individuals with Disabilities Education

Act (IDEA).

A number of courts have been asked to further clarify the

issue f medically related services in the school setting. The

case of Detsel v. Board of Education, 637 F.Supp. 1022

(N.D.N.Y. 1986), involved a seven-year-old child with severe

physical disabilities who had greater health care needs than does

Garret. She required constant respirator assistance and a

continuous supply of 40% oxygen. Her vital signs had to be

checked regularly and appropriate medication administered

through a tube. As a result of a tracheostomy, the nurse would

cause a saline solution to be ingested into the lungs of the girl,

she would strike her about the lungs for several minutes, and

then suction out the mucous collected in her lungs. The nurse

had to be prepared to perform cardiopuimonary resuscitation

and to act in the life-threatening situation of possible respiratory

distress. The girl’s own physician testified that the services of a

regular school nurse would not be adequate. She required the

service of specially trained nurses 24 hours a day. The legal

issue of related services arose when she started kindergarten

and the county department of social services, who had been

supplying the nursing care, refused to pay for a nurse to

accompany the girl to school. The girl’s school was asked to

44a

Appendix C

pay for the nursing care while she was at school, but e school

declined arguing that the extensive medical attentfon required

exceeded the related services requirement.

In its analysis, the district court included an expense factor

which it incorrectly attributed to the Supreme Court ruling in

Tatro. The district court said that the Supreme Court had said

that “medical services which would entail great expense are not

required,” and that Congress had intended to protect schools

from unduly expensive services. Id., at 1026. Both statements

are taken out of context and the Supreme Court had actually

said neither. As stated previously, the Supreme Court had merely

speculated on the possible reasons Congress may have had in

differentiating between nursing services and medical treatment

and said that cost and medical competence of educators may

have been among such reasons. Irving Indep. Sch. Dist. v. Tatro,

104 S. Ct. 3371, 3378 (1984).

The district court in Detsel incorrectly said that the Supreme

Court in Tatro had “clearly” considered the extent and nature of

the services required and thus took Tatro as a license to do the

same. Detsel „ Board of Educ., 637 F.Supp. 1022. 1026

(N.D.N.Y. 1986) M concluded that because constant monitoring

was required to protect the student's life, the procedures required

were much more extensive than mere catheterization, and the

procedures required a person specially trained beyond that which

a school nurse would have been, that the health care services

required in the situation before it fell within the medical services

exclusion. However, as stated earlier, there is nothing in the Tatro

decision, express or implied, that established the relevancy of

the nature or extent of the services required. The closest thing it

said was a comment as an aside that something less than nursing

services were required in the factual situation before it. Irving

Indep. Sch. Dist. v. Tatro, at 3371, 3379 (1984).

45a

Appendix C

The district court concluded in Detsel that the health care

services needed in the situation before it did not require a

physician, but neither did they qualify as “simple school nursing

services.” Detsel v. Board of Educ. 637 F.Supp. 1022 (N.D.N.Y.

1986). (Where the word “simple” came from is unclear because

it was not used in Tatro.) It held that even though a physician’s

services were not expressly required, excluding the services

required of the girl while at school, was in keeping with the

“spirit” of the exclusion. It ruled that the school did not have to

provide the services requested.

The Second Circuit upheld the district court in a brief per

curiam decision. Detsel v. Board of Educ., 820 F.2d 587 (2nd

Cir. 1987). The Detsel family, after̃ additional litigation, was

able to obtain Medicaid payment for the services. Detsel y.

Sullivan, 895 FA 58 (2d Cir. 1990).

The Detsel result was followed in another ruling, Bevin H.

v. Wright, 666 F.Supp. 71 (W.D. Pa. 1987), which involved an

even more severely disabled student. The seven-year-old had

Robinow Syndrome (fetal face syndrome), severe broncho-

pulmonary dysplasia, profound mental disability, spastic

quadriplegic, seizure disorder, visual impairment and

hydrocephalus. She breathed through a tracheostomy tube, and

was fed and medicated through a gastrostomy tube. Nursing

services at school were extensive.

The attending nurse must accompany Bevin

to and from school. She is responsible for

the care and cleaning of the tracheostomy and

gastrostomy tube. She administers a constant

oxygen supply to Bevin. She supervises

positioning for physical and occupational

46a

Appendix C

therapy. She administers chest Physical

therapy each day to break up mucous. and

must suction the mucous from the lungs.

Above all, though, the nurse must remain

with Bevin at all times because of the

constant possibility of a mucous plug in the

tracheostomy tube. Such a plug is à common

event, occurring several times each day, and

must be cleaned by the nurse Within 30

seconds to prevent injury to Bevin· Id. at 73.

The student’s parents at first agreed to Pay the health care

costs for their daughter to attend school, and did so through

insurance. As the insurance coverage ceiling was being

approached, they requested the school to pay the $1,850 monthly

nursing cost for health care while Bevin Was at school. The

school refused, and the parents challenged the refusal. After

two administrative proceedings, the issue Was appealed into

federal court.

Before the district court, the p4rents argued that under the

Tatro ruling, a clear line betwee~ health services provided by a

physician and other health sfvices should be drawn, and the

nature and extent of the sr es provided should be otherwise

irrelevant. If a physici-n's services were not required, health

care services at school Should be considered a related service to

be provided by th< school. Id., at 74. The court, however, found

the reasoning i+! Detsel to be “persuasive,” and declined to follow

the “bright line definition of “school health services“ and

“medica! services.” Id., at 75.

Instead, it followed the ruling in Detsel and found the health

care services required by Bevin to be inconsistent with the

47a

Appendix C

“spirit” of related services. Jd. They were “varied and intensive,”

“must be provided by a nurse,” were “time-consuming and

expensive,” demanded the “constant attention of the nurse,” and

were “life-threatening.” The court concluded, the services

required were more in the way of “inedical services” than related

services. Id. at 76.

The decisions in Detsel and Bevin H. have recently been

followed in Granite School District u Shannon M., 787 F.Supp.

1020 (D. Utah 1992). The Shannon M. case involved a six-year-

old student with congenital neuromuscular atrophy, severe

scoliosis, and confinement to a motorized wheelchair. She was

fed through a nasogastric tube and breathed through a

tracheostomy tube. The latter tube had to normally be cleared

five times during a three-hour school day, and occasionally

became plugged anyway, causing a life-threatening situation.

Someone had to be nearby and Shannon's doctor had issued a

“do not resuscitate” order (heroic measures were not to be used

if Shannon suffered cardiac arrest). The issue before the court

was whether the health care needed to attend school was required

to be provided by the school: “whether full-time nursing care

for Shannon is a supportive service required by the Act, or

whether it is a medical service excluded under the Act.” The

school estimated the annual cost of care at $30,000.

The court rejected the “bright line” argument put forth by

Shannon's parents. It said that it would not judge whether the

needed services were excluded as medical services solely on

the facts of whether a physician’s services were required.

Instead, it made its determination on the extent and nature of

the services. It conciuded that the constant nursing care required

did fall within the medical services exclusion of IDEA. /d., at

1030.

48a

Appendix C

In a decision based on facts nearly identical to those

involved in this appeal, a New York appellate court expressly

followed the Detsel ruling. Ellison v. Board of Education, 597

N.Y.S.2d 483 (A.D. 3 Dept. 1993).

Other courts have been more reluctant to stray from the

Supreme Court ruling in Tatro. In Macomb County Intermediate

School District v. Joshua S., 715 F.Supp. 824 (E.D. Mich. 1989),

the issue was the obligation of the school to provide health care

services during transportation to and from school. Joshua was

“severely multiply impaired,” and required suctioning of his

tracheostomy tube. Other details of his health care needs were

not provided by the court, but a local hearing officer had referred

to his “medically fragile nature.” The school did not object to

providing Joshua's health care needs either at school or at home.

It objected to providing the services during times of

transportation between home and school.

In its analysis, the court twice expressly rejected the legal

conclusions of both the Detsel and Bevin H. cases. In doing so,

the court stated:

As Tatro repeatedly stressed, the reason for

mandating the provision of supportive

services under the EAHCA is to guarantee

handicapped students an opportunity to gain

an education. If granting such an opportunity

entails furnishing medically related services

short of requiring a licensed physician, we

believe such services are the student’s right.

Moreover, the EAHCA, its legislative history,

and its regulations are void of any suggestion

that states are free to decide, on the basis of

49a

1 Appendix C

the cost and effort required, which related

services fall within the medical services

exclusion. Id., at 827.

The court in Joshua S. concluded that the medical services

exclusion is limited to services provided by a licensed physician.

While disagreement exists as to whether a

trained lay person could adequately service

the defendant’s needs, we believe that Tatro

supports the use of a medical professional,

other than a physician, if necessary to the safe

transport of the [student]. Id., at 828.

The most recent court ruling on the subject has taken more

of a middle ground on the issue. The case of Neely v. Rutherford

County Schools, 881 F.Supp. 888 (M.D. Tenn. 1994), involved

a seven-year-old child with congenital Central Hypoventiladon

Syndrome, a rare condition that results in trouble breathing. She

had undergone a tracheostomy procedure to aid in her breathing

and needed a ventilator while she slept. Her breathing passages

had to be suctioned regularly to remove secretions. An ambu

bag was used to assist her breathing when her tube had become

blocked or dislodged. A “well-trained, poised individual” was

x Tequired to provide health care services. Ske required constant

monitoring, and the attendant could never be far away.

In its analysis, the court in Neely rejected both the bright

line rule and the nature of services and cost test and settled on a

“direct” test. Jd. at 893. It proposed to examine the “direct”

burden imposed on a school rather than artificial effects off such

things as the status or title of the care provider.

50a

Appendix C

In its direct burden analysis, it noted that a full-time nurse

or respiratory care specialist was required to provide the student

with nearly full attention while in school. However, the cost to

home-schooling program would not be without its costs to the

school. The court concluded that, “absent evidence that the care

requested would be unduly burdensome to the school district,

the nursing care will be deemed a related supportive service

that falls outside the medical services exclusion.” Id., at 894.

With at least three different perspectives or interpretations,

it is little wonder that differences of opinion. such as we have

here, may arise.

Tatro even discussed with approval the provision of health care

services under a physician’s prescription and “ultimate

supervision.” Irving Ind. Sch. Dist. v Tatro, 104 S. Ct. 3371, 3378

(1984). The Court did not ever say that the cost and extent of

medical expertise were relevant, only that Congress and the

Department of Education may have considered them.

Sla

Appendix C

Nothing in the subsequent rulings in Detsel, Bevin H.,

Shannon M., Ellison, or Neely has changed this ALJ's

understanding of Tatro. Like the Court in Joshua S., he is not

able to find the distinctions made in these rulings. It appears

more to this ALJ that those courts were substituting their own

judgment for that of Congress and the Department of Education.

They stretched some statements of the Supreme Court

completely, and took others out of context to fashion what they

thought “should be.” As much as this ALJ may disagree with

the public policy of spending education funds on health services,

he does not feel he has the authority to change the law.

The brief for the District argues that the bright-line test for

the medical exclusion is weak because it is based on the title of

the person providing services (p. 13). Indeed, this was the

rational used by several of the courts cited above that

distinguished Tatro. This argument falls short of the mark

because the bright-line test does not use the title of the person

providing the service, i.e. lay person, nurse, physician, but

whether the service “must be performed by a physician”

(emphasis added). Irving Ind. Sch. Dist. v. Tatro, 104 S.Ct. 1371,

1378 (1984). See Max M. v Thompson, 592 F.Supp. 1737 N. L.

Ill. 1984). Thus, the issue to be determined in the medical

exclusion exception is not who provides the service, but whether

the service is in the special training, knowledge, and judgment

of a physician to carry out. This appears to be the position of

the office of Special Education Programs in the Department of

Education. See Guard to Johnson, 20 IDELR 175 (1993).

The Department of Education rules clearly require nursing

services as a related service. 34 C.F.R. 300.16(b)(11). If

limitations as to amount, cost or special training were meant to

apply, they could have been expressly stated. They were not.

52a

Appendix C

Several citations to pre-Tatro rulings on related services

were provided by the parties. Because they were issued prior to

the Supreme Court review of the issue, and provide no great

insight, they are of limited value in understanding where we are

now.

testimony differed at the hearing as to the proper level of

licensure needed by the person to care for Garret at school, it

was obvious that in most situations a conscientious lay person

could be, and has been in the past, trained to provide the

necessary care. Unless Garret’s situation changes in the future,

even a licensed health care professional. His attending

pediatrician has repeatedly so stated.

53a

Appendix C

If one were to apply the balancing test used by the court in

Neely, the same result occurs. The increased expense to the

District of hiring a full time RN, as required by the Board of

Nursing Ruling and its own practices over what it now expends

for Garret, would range between $20,000 and $30,000. For a

special education budget as large as the District’s in serving

2,200 special education students, that is not “over-burdensome.”

(In one recent ruling, the $94,000 annual cost of one student’s

special education program was not considered relevant, even

when the district's total special education budget was $572,000;

Cremeans v Fairland Local Sch. Dist. 633 N.E. 2d 570 (Ohio

App. 4 Dist. 1994). This is even more true when it is remembered

that special education revenues generated by a district are pooled

to serve the needs of all students with disabilities in a district,

and the state provides ways for schools to recover special

education funds expended in excess of revenues generated under

the state’s controlled budget for schools.

While the District would point to the additional cost of

$20,006 to $30,000 for RN services arguably required

additionally to meet Garret’s health care needs while at school,

it should be remembered that little actual difference exists

between the services needed by Garret while at school and

services the District now provides, or has provided, other

students. Other students have required tracheostomy suctioning,

ambu bagging, help with food and drink, catheterization and

positioning. Other students have received additional health care

services, such as gastronomy tube feeding and administration

of medication. The main difference between Garret s needs and

those currently or historically met by the District is the

monitoring of Garret’s ventilator.

Under lowa statute, the dichotomy of specific related

54a

Appendix C

services is not as apparent as it is under federal law. Section

256B.2, subsection i defines “children requiring special

education” as persons between the ages of 0 and 21 who are

handicapped in obtaining an education because of a disability,

including physical disabilities. Subsection 2 defines “special

education” as instruction “designed to meet the needs of children

requiring special education, transportation, and corrective and

supporting services required to assist children requiring special

education,” in taking advantage of “educational programs and

opportunities” (not only special education programs).

Clearly, Garret is physically handicapped and, under state

statute, requires “corrective and supporting services” to take

advantage of “education programs and opportunities.” Read

together with the least restrictive environment (LRE) provisions

of subsection 3, the District has clear responsibility under state

law, as well as federal law, for providing Garret with the health

care services he needs in the school setting. The lowa LRE

requirements are quite specific:

This chapter is not to be construed as

encouraging separate facilities or segregated

programs designed to meet the needs of

children requiring special education when the

children an benefit from all or part of the

education program as offered by the local

school district. To the maximum extent

possible, children requiring special education

Shall attend regular classes and shall be

educated with children who do not require

special education. Whenever possible,

hindrances to learning and to the normal

functioning of children requiring special

55a

Appendix C

education within the regular school

environment shall be overcome by the

provision of special aids and services rather

than separate programs for those in need of

special education. Special classes, separate

schooling, or other removal of children

requiring special education from the regular

education environment, shall occur only

when and to the extent that the nature or

severity of the educational handicap is such

that education in regular classes, even with

the use of supplementary aids and services,

cannot be accomplished satisfactorily.

(Emphasis added.) 256 B.2(3), lowa Code

1993.

Under lowa statute, Garret is a child requiring special

education, and a six-year history of successful functioning in

the regular classroom, with aids and services provided by his

family and the school prove beyond a doubt that it can be

accomplished satisfactorily. Under state law, Garret must be

provided an education program “within the regular school

environment,” and under the same state law; it is the District's

responsibility to do so. Section 256B.2 Iowa Code; see also

280.8 lowa Code.

It should be noted that state provisions for special education

determined to create a higher standard of duty on schools than

what the federal law may require have been deemed by some

courts to be automatically incorporated into IDEA. See David

D. v. Dartmouth Sch. Comm., 615 F.Supp. 639 (D. Mass. 1984);

Barwacz v. Michigan Dept. of Educ. 674 F.Supp. 1296 (W.D.

Mich. 1987); Pink v. Mt. Diablo Unif. Sch. Dist., 738 F.Supp.

56a

Appendix C

345 (N.D. Cal. 1990); Doe v. Board of Educ., 9 F.3d 455 (6th

Cir. 1993).

As a second issue, the District has raised an interesting

argument regarding Garret's eligibility for related services under

federal law. (In light of the foregoing discussion of state law in

which supportive services are part of the definition of special

education, federal law may not be of great significance on this

point, however.) The District argued that under federal law, a

student who does not need special instruction is not entitled to

related services. Since Garret has never had special instruction

and does not now ask for any, he is not entitled to any related

services, including health services, or not.

This argument is interesting because in the strict language

of the law, it appears to be correct, but in actual practice, it is

not.

In the Supreme Court ruling in Tatro, the Court attempted

to establish that schools did not have to provide students with

unlimited related services. It said that in order to be entitled to

related services, “a child must be handicapped so as to require

special education.” Irving Ind. Sch. Dist. v. Tatro, 104 S.Ct. 3371,

3378 (1984). The Court went on to say:

In the absence of a handicap that requires

special education, the need for what

otherwise might qualify as a related service

does not create an obligation under the Act.

Id.

Authority for this position is found in the Note to the

Department of Education Rules found at 34 C.F.R. 300.17. The

relevant part of that comment states:

57a

Appendix C

The definition of special education is a

particularly important one lil a child

does not need special education, there can

be no related services, and the child is not a

child with a disability and is therefore not

covered under the Act.

The definitions of special education contained in Rule 300.17

encompassed only “specially designed instruction . . to meet

the needs of a child with a disability,” and a related service “if

the service consists of a specially designed instruction . . . and

is considered special education rather — a related service

under state standards.”

At first glance, the above quoted rules and the language

from Tatro might be interpreted to mean that a student with a

disability who needs only related services to be successful in

school and does not need special instruction, does not qualify

to be identified as a special education student. However, the

problem with that argument becomes apparent fast. Amber Tatro

was born with spina bifida and as a result required only a related

service, catheterization, to remain in the regular school

environment. There was no indication in the ruling in Tatro to

indicate that she also needed a special or modified education

program. Yet the Court ruled in her favor on the issue of related

services. The Court distinguished a service required for a student

during non-school hours. Irving Ind. Sch. Dist. v. Tatro, 104 S.Ct.

3371, 3378 (1984).

A closer look at federal rules may provide the answer. Rule

300.17 and its following note quoted above was meant to define

“special education” only, and to be differentiate special

education from related services. Rule 300.7 provides that

58a

Appendix C

“children with disabilities,” including physical disabilities,

means those children who because of their disabilities need

special education and related services. Thus, related services

can stand alone for those students who need only those services

to succeed in regular education. The Court said in the ruling in

Tatro: “A service that enables a handicapped child to remain at

school during the day is an important means of providing the

child with a meaningful access to education that Congress

envisioned.” Id. at 3377. Clearly, that is Garret’s situation.

For six years, the District has provided the related services

of a teacher associate, special transportation to and from school

(which under state law should be in an IEP, but wasn’t, 281-

41.8 LA. C). occupational therapy, and special equipment, which

may be considered assistive technology. For at least that time,

the District has identified and weighted Garret for funding under

state law, and provided an IEP for Garret. It is more than a little

inconsistent for the District to disavow its past now that Garret's

family also wants assistance with health care costs.

As stated previously, federal distinctions between the

entitlement to special education and related services, if any, are

not included in Iowa statute. By statutory definition, “special

education” means specialized instruction, transportation and

“corrective and supporting services.” Thus, even if federal law

did not require school health care services for Garret, state law

does.

Until now, and possibly into the future, Garret has had

insurance and a trust fund to aid in the financial support of health

care services at home. District staff members anticipate that a

second ventilator dependent student may soon be attending

school in the District. That student’s health care needs are likely

59a

Appendix C

to be met through Medicaid. Yet, it is possible that some

ventilator dependent student, who like Garret is bright,

personable and creative, may come along some day who does

not have, or does not qualify, for outside support for health care

needs while at school. The only apparent alternative is a home-

bound program. If the District refuses to provide health care

and the family can’t provide it, there is no middle ground. While

the law anticipates that the appropriate program for some

children will be an education program provided at home, that

appears to be totally inappropriate for Garret and any similar

student. The lack of stimulation he now receives from a variety

of teachers and peers would have a profound effect on the rest

of his life. A home-bound program would certainly not be an

education with nondisabled children to the “maximum extent

appropriate.” 34 C.F.R. 300.550. Clearly, Garret receives much

more benefit from his being in school than his being at home,

his presence is not substantially disruptive to the school

environment and his teacher’s time is not unduly taken up

working with him individually. Under lowa statute, only when

a child “cannot sufficiently profit from the work in the regular

classroom” may he be removed. Section 256B.8, lowa Code

1993.

A significant bone of contention in this appeal is the Board

of Nursing interpretation that the health care services needed

by Garret must be provided or supervised by an on-site RN.

This requirement increases the annual cost of such services to

the District by about $20,000. If this requirement were not

present, the District could assign Garret’s health care duties at

school to his current TA, who is a LPN, as well as her current

TA duties at a minimum of additional expense (perhaps, training

in Garret’s particular ventilator).

60a

Appendix C

Clearly, District nurses and other District staff fear that the

nursing licenses of District nurses who supervise the TA, who

is also a LPN, without being on-site full time, or who delegate

Garret’s health care needs to a nonlicensed provider without

being on-site, will be placed in jeopardy. Both Garret’s mother

and pediatrician testified that a RN is not actually required to

be present on site to provide adequate health care for Garret

while at school. All Garret really needs is a qualified,

conscientious, and trained person within earshot to respond to

his immediate needs.

The District argues that this ALJ has no authority to

determine issues of professional licensure or delegation of

nursing duties. This ALJ is happy to concede this lack of

authority. That does not, however, resolve the District's

responsibility to provide health care services to Garret at school.

The Appellant argues that the Declaratory Ruling issued by the

Board of Nursing is not binding on her because she was not a

party to its request. While that may be true, it has a practical

impact on services to Garret because the District is likely bound

by the Ruling.

The practical result is that the issue of proper licensure in

this appeal remains a mess, a mess which should be better

resolved by the Board of Nursing. Iowa statute provides the

Board of Nursing with the role of determining the parameters

of nursing duties. Section 152.1, lowa Code 1993. If it has done

so before now, this ALJ has not been able to identify where it is

to be found. The rules of the Board of Nursing found in Rule

655-6.2 J A. C. speak only in vague terms like “scope of nursing

practice,” which shall not include those practices currently

ascribed to the advance registered nurse practitioner;” “nursing

process in the practice of nursing consistent with accepted and

6la

Appendix C

prevailing practice,” and “knowledge and skill level currently

ascribed to the registered nurse.” These definitions certainly

provide little guidance to the lay person, or likely anyone else.

The rules certainly provide little guidance to Rns and maybe

even the Board, itself. (The above quoted rule was published in

the I A. C. on 8-26-87). A N employed by the District testified

that she had delegated some health care for students at school

on the basis of her own professional judgment until 1988 when

the Nursing Board issued a “guideline” on in-school delegation.

The guideline apparently said that nurses could not delegate the

particular procedure. A waiver was requested and received by

the District, only to later be withdrawn by the Board. Even later,

the Board apparently withdrew the entire guideline.

In the Declaratory Ruling in question, the Board was to

provide the “applicability of any statutory provision, rule, or

other written statements of law or policy, decision or order of

the agency.” 17A.9, lowa Code 1993. If the Board Ruling did

this, this ALJ is not aware of it. The only citation to law in the

Ruling was to the vague and largely confusing rule at 655-6.2

I. A. C. Reference was made in the Ruling to two named

documents, but nothing like them adopted as Board rule or policy

has been determined. They were not even attached to the Ruling

for proper reference. Yet, the whole purpose of the

Administration Procedure Act is to make agency rules and policy

known and understood. Nursing rules and policy, or the lack

thereof, certainly have resulted in a great deal of confusion in

this situation. We have here a situation where it has been

determined by the Board of Nursing that a RN must be at the

school site to supervise the health care needs of Garret. No

mention is made of the current situation with services of a LPN

provided by the family with distant RN supervision, or the same

62a

Appendix C

at home, or not having nursing services during part of the day

or on weekends. Why is Garret's situation in school, if the school

is responsible, different than when the school is not responsible

or Garret is elsewhere?

The Board of Nursing does a great disservice to the licensed

nurses it supervises and the persons they serve by not doing a

better job of carrying out its statutory duty to identify the role

of nurses.

The Appellant contends that she has requested assistance

with the costs of Garret’s health care needs at school for several

years, and she may well have done so. The record, however,

establishes this with some certainty only since the spring and

summer of 1993. Because that is the most definite time the issue

arose and the District specifically declined, the District

responsibility to provide Garret’s health care services under this

appeal ruling shall be considered to have begun with the 1993-

94 school year.

It should be noted that the District did not fully comply

with the parental rights requirement of full detailed notice when

it refused to request payment of health service costs in the fall

of 1993. 34 C. FR. 300.504 (a)(2); See Evans v. District No. 17,

841 F.2d 824 (8th Cir. 1988). However, this appeal is evidence

that the failure did not prejudice Garret’s mother in the exercise

of her legal rights, and no major harm resulted. See Thomas v.

Cincinnati Bd. of Educ., 918 F.2d 618, 625 (6th Cir. 1990); Miles

S. v. Montgomery County Bd. of Educ., 824 F.Supp. 1549, 1557-

58 (M.D. Ala. 1993).

All motions and objections not previously ruled upon are

hereby overruled.

63a

Appendix C

The affidavit of appeal filed by the Appellant raises only

the issue of the District’s refusal to provide health care services

for Garret after the September 10, 1993, IEP meeting. On that

issue, the Appellant prevails.

Decisi

The Cedar Rapids Community School District is hereby

directed to reimburse the Appellant for Garret F.’s health care

costs while at school for the 1993-94 school year. While no other

school year was specifically included in the appeal affidavit, it

should not be forgotten that this appeal has been pending for

over a year. There is certainly nothing in the record to indicate

any reason that the District should not currently be providing

school health care for Garret as a related service.

Respectfully submitted.

Larry D. Bartlett

Larry D. Bartlett, J. D., Ph.D.

Administrative Law Judge

Date: December 16, 1994

64a

APPENDIX D — LETTER FROM THE OFFICE OF

SPECIAL EDUCATION PROGRAMS OF THE U.S.

DEPARTMENT OF EDUCATION

John Anderson

Superintendent

Special Education District of Lake County

4440 Grand Avenue

Gurnee, Illinois 60031-2689

Digest of Inquiry

(October 1, 1993)

¢ Are school districts required to provide

one-to-one nursing services necessary for a

student with disabilities to attend a public

school setting?

Digest of Response

(February 22, 1996)

Provision of Nursing Services Must Be

Decided on Case-by-Case Basis

The determination as to whether a school

district must provide one-to-one nursing

services to a student with a disability in the

public school setting must be made on a case-

by-case basis in light of the particular facts

and circumstances involved. For this reason,

OSEP refused to express any view as to

whether such services are a required related

service under special education laws.

65a

Appendix D

Text of Inquiry

Please advise regarding OSEP’s position related to a school

district’s requirement to provide one-to-one nursing services

necessary for a student with disabilities to attend a public school

setting. Does OSEP consider this service to be a required related

service or a medical service as determined by several recent

federal court decisions?

Thank you in advance for your assistance with this request.

Text of Response

This is in further response to your letter requesting.

clarification regarding whether schooi districts are required to

provide “one-to-one nursing services necessary for a student

with disabilities to attend a public school setting.” Specifically,

you seek the views of the office of Special Education Programs

(OSEP) as to whether such services are eligible school health

services or excluded medical services. Please excuse the delay

in issuing our response.

In our initial letter acknowledging receipt of your inquiry,

we indicated that our response also would address the

requirements of Federal civil rights laws enforced by the

Department’s Office for Civil Rights (OCR) that prohibit

discrimination on the basis of disability in the provision of

educational services to disabled students. Officials of OCR have

reviewed your inquiry and have advised that the analysis that

follows also reflects the obligations of school districts to provide

educational services to disabled students in accordance with the

requirements of Section 504 of the Rehabilitation Act of 1973

and the Americans with Disabilities Act Of 1990, Title II.

66a

Appendix D

Under Part B of the Individuals with Disabilities Education

Act (Part B), each State and its local school districts must make

a free appropriate public education (FAPE) available to all

children with specified disabilities residing within the State in

mandatory age ranges. 20 U.S.C. § 141202). FAPE includes,

among other elements, the provision of special education and

related services at no cost to the parents, in conformity with an

individualized education program (IEP). 34 CFR § 300.8.

A threshold issue raised by your inquiry is whether “one-

to-one nursing services” to enable a disabled student to attend

school would be considered an eligible “school health service,”

or an excluded “medical service” because the services are for

purposes other than those that are “diagnostic and evaluative in

nature.” 34 CFR § 300.16(b)(4) and (b)(11).' Courts that have

addressed this issue have reached differing conclusions based

on factors such as the nature and intensity of the nursing services

required for a particular studeat and the level of skill required

of the individual performing the services. If the care required is

intermittent and could be provided by a regular school nurse,

courts have generally held that the service is an eligible related

service. See e.g., Irving Independent School District v. Tatro,

104 S. Ct. 3371 (1984), Department of Education, State of Hawaii

v. Katherine D, 727 F.2d 809 (9th Cir. 1984), cert. den. 471

U.S. 1117 (1985) and Macomb County Intermediate School

District u Joshua S, 715 E. Supp. 824 (E. D. MI. 1989). However,

if the care required is continuous, courts, relying on the private

duty aspect of the services, generally have held that the service

1. The term, “medical services,” “means services provided by a licensed

physician to determine a child's medically related disability that results in

the child’s need for special education and related services.” 34 CFR

§ 300.16(b)(4). The term “School health services” “means services provided

by a qualified school nurse or other qualified person.” 34 CFR § 300.16(b)(11)

67a

Appendix D

is an excluded medical service. See e. g., Neely v. Rutherford

County School District, 68 F.3d 965 (6th Cir. 1995); Detsel v.

Board of Education of Auburn Enlarged City District, 637 F.

Supp. 1022 (N.D. N.Y. 1986) Aff’d per curiam, 820 F.2d 587

(2d Cir. 1987), cert. den. 484 U.S. 981 (1987); Granite School

District v. Shannon M., 787 F.Supp. 1020; (D. Utah 1992) and

Bevin H u Wright, 666 F.Supp. 71 (W.v. Pa. 1987).

Because the question you raise could arise in a variety of

factual contexts, OSEP cannot express a view as to whether or

not “one-to-one nursing” services are a required related service

for an individual disabled student. Rather, the determination as

to whether these services are required related services for an

individual disabled student must be made on a case-by-case

basis, in light of the particular facts and circumstances

surrounding the request, by the participants on the student's IEP

teani. if the student's IEP team determines that nursing services

are a required related service for a particular student, those

services must be provided at no cost to the parents. Under Part

B, a public agency may use funds other than Part B funds,

including whatever State, local, Federal, and private sources of

support that are available in the State to meet Part B

requirements. See 34 CFR § 300.301(a)

I hope that this explanation is helpful to you. If we can be

of further assistance, please let me know.

Thomas Hehir

Director Office of Special Education Programs

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.