# Amicus Curiae Brief — Cedar Rapids Community School Dist. v. Garret F. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0074%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1999 - **Citation:** 526 U.S. 66 ## Text a i . ⁰— . i In the Supreme Court of the United States OCTOBER TERM, 1997 CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT, PETITIONER 2. GARRET F., A MINOR BY HIS MOTHER AND NEXT FRIEND, CHARLENE F. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SETH P. WAXMAN Solicitor General Counsel of Record BILL LANN LEE Acting Assistant Attorney General BARBARA D. UNDERWOOD Deputy Solicitor General BETHS. BRINKMANN Assistant to the Solicitor General DAVID K. FLYNN SETH M. GALANTER Attorneys Department of Justice * Washington, D.C. 20530-0001 (202) 514-2217 LORS 4 7 * ö a ea 22 tReet BO ere “ik ile SEDO aus n QUESTION PRESENTED The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq., requires States receiving federal spe- cial education funds to provide special education and “related services” to students with disabilities. “Related services” are defined to include supportive services that are required to assist a child with a disability to benefit from special edu- cation, but exclude “medical services” unless they are for diagnosis or evaluation. 20 U.S.C. 1401(a)(17). The question presented is: Whether the Secretary of Education’s “related services” regulation, 34 C.F.R. 300.16, reasonably interprets the “medical services” exclusion to exclude only services pro- vided by a physician, and not health services provided by a qualified school nurse or other qualified non-physician. TABLE OF CONTENTS Interest of the United States Statement Summary of argument Argument: The Secretary of Education's regulation correctly interprets the “medical services” excluded from coverage under IDEA to be services that must be provided by a physician A. The plain language of IDEA shows that ex- cluded “medical services” are services pro- vided by a physician and not health services provided by non-physicians B. The Secretary of Education’s interpretation of the “medical services” exclusion is reason- able, longstanding, and entitled to deference .......... C. Congress has ratified the Secretary's interpre- tation of “related services” and the “medi- cal services” exclusion in IDEA D. Petitioner’s cost-based arguments to expand IDEA’s “medical services” exclusion are not supported by the statutory structure and are inconsistent with the intent of Congress. Conclusion Appendix TABLE OF AUTHORITIES Cases: American Hosp. Ass'n v. NLRB, 899 F.2d 651 (7th Cir. 1990), aff'd, 499 U.S. 606 (1991) American Surety Co. v. Marotta, 287 U.S. 513 (1933) Atkins v. Rivera, 477 U.S. 154 (1986) (ID pies 15 21 21 10 16 IV Cases—Continued: Page Auer v. Robbins, 117 S. Ct. 905 (1997) .. 16 Bennett v. Kentucky Dep't of Educ., 470 U.S. 656 (1985) 15 Bennett v. Spear, 117 S. Ct. 1154 (1997) 12 Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176 (1982) 1, 4. 9, 15 Chevron U.S.A. Inc. „ Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) 16 City of Edmonds v. Oxford House, Inc., 514US. 725 (1995) 15 Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833 (1986) .. 24 Detsel v. Board of Educ. of Auburn, 637 F. Supp. 1022 N. D. N. v. 1986), aff d. 820 F.2d 587 (2d Cir.), cert. denied, 484 U.S, 981 (1987) 20 Detsel v. Sullivan, 895 F.2d 58 (2d Cir. 1990) 26 FCC v. WNCN Listeners Guild, 450 U.S. 582 (1981) 21 Florence County Sch. Dist. Four v. Carter, 510 U.S. 7 (1992) ... 13 Gebser v. Lago Vista Indep. Sch. Diat., IIS S. Ct. 1989 (1998) — 14 Good Samaritan Hosp. v. Shalala, 508 U.S. 402 (1993) 15 Herb Welding Ine. v. Gray, 470 U.S. 414 (1985) ............ 10 Honig v. Doe, 484 U.S. 305 (1988) .. 4, 16 Irving Indep. Sch. Dist. v. Tatro, 468 U.S. 883 (1984) . passim John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86 (1998) ... 15 Lee v. Andrews, 545 8.W 2d 298 (Tex. Civ. App. 1976) 14 Morton Community Unit Sch. Dist. No. 709 v. J.M., No. 97-3962, 1998 WL 420393 (7th Cir. July 27, 1998) 18 V Cases Continued: — Page Mourning v. Family Publications Serv., Inc., 411 U.S. 356 (1973) 21 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) 14 Regions Hosp. v. Shalala, 118 S. Ct. 909 (1998) 00... 15 Rust v. Sullivan, 500 U.S. 178 (1991) 15 School Bd. of Nassau County v. Arline, 480 US. 273 (1987) 15 Schweiker v. Gray Panthers, 453 U.S. 34 (1981) — 21 Shook v. Gaston County Bd. of Educ., 882 F.2d 119 (4th Cir. 1989) 27 Skubel v. Fuoroli, 113 F.3d B30 (2d Cir. 1997) 26 Smith v. Robinson, 468 U.S. 992 (1984) 15 United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544 (1996) — 12 Walters v. Metropolitan Educ. Enters., Inc., 117 S. Ct. 660 (1997) 11 Weinberger v. Salfi, 422 U.S. 749 (1975) 21 Zenith Radio Corp. v. United States, 487 U.S. 483 (1978) 16 Constitution, statutes and regulations: US. Const. Art. I, § 8, Cl. 1 (Spending Clause) 14, 15 Amend. XIV, § 5 — 15 Balanced Budget Act of 1997, Pub. L. No. 105-33, Tit. IV, 111 Stat. 251 (to be codified at 42 U.S.C. 1397 et seq.) 29 Education of the Handicapped Act, Pub. L. No. 91-230,84 Stat. 175 (1970) x Education of the Handicapped Act Amendments of 1983, Pub. L. No. 98-199, § 6, 97 Stat. 1357 — 7.21.23, 24 Education of the Handicapped Act Amendments of 1986, Pub. L. No. 99-457, § 208, 100 Stat. | 25, 26 VI Statutes and regulations—Continued: Page Education of the Handicapped Act Amendments of 1990, Pub. L. No. 101-476, 104 Stat. 110g: § 101(c), 104 Stat. 1108 10 § 901(a)\(1), 104 Stat. 1141 s § 901(a)(3), 104 Stat. 1142 — Education for All Handicapped Children Act of 1975, Pub. L. No. 94-142, 89 Stat. 773 8, 12, 13, 24 Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq. 3, 7, 8 20 U.S.C. 1400) 3,8 20 U.S.C. 1400(b)(9) 15 20 U.S.C. 1401(a)(16) 9 20 U.S. C. 1401(a)(17) 3, 5, 7, 10, 11, 12, 13 20 U.S. C. 1401(a)(18) 4,9 20 U.S.C. 1401(a)(20) 4 20 U.S.C. 1407(b) 7, 28 20 U.S.C. 1412(1) 90 20 U.S.C, 1412(5\(B) 4,9 20 U.S.C. 1412(6) 25 20 U.S.C. 1413(a)(13) 25 20 U.S.C. 141800 15 20 U.S.C. 1413(e) 26 20 U.S.C. 1414(a)(5) 4 20 U.S.C. 1414(e)(4) 6 20 U.S.C, 1416(a) 15 20 U.S.C. 1417(b) 16, 20 20 U.S.C, 1420 15 Individuals with Disabilities Education Act Amend- ments of 1997, Pub. L. No. 105-17, 111 Stat. 37 8-9 § 101, 111 Stat. 45 10 § 612(a)(12)(A), 111 Stat. 64 28 § 612(a)(12 Ai), 111 Stat. 65 28 § 612(a)(12)\( Bil), 111 Stat. 66 28 § 612(a\(12\(C), 111 Stat. 66 28 VII Statutes and regulations Continued: Medicare Catastrophic Coverage Act of 1988, Pub. L. No. 100-360, § 411(k)(13), 102 Stat. 688 (codified at 42 U.S.C.1396b(c)) Social Security Act: 42 U.S.C. 701 et seq. (Maternal and Child Health Services Block Grant) 42 U.S.C. 1396 et seq. (Medicaid) 42 U.S. C. 1896d(a) 42 US.C. 1396d(r) Supplemental Appropriations Act, 1982, Pub. L. No. 97-257, 96 Stat. 818 28 U.S.C, 1367 2 „ NN Iowa Code Ann. (West 1997): $§ 148.1-148.18 §§ 152.1-152.12 34 C. F. R.: Section 300.13(b)(4) (1983) Section 300.15 Section 300.16 Section 300.16(a) Section 300.16(b)(4) Section 300.16(b)(11) 45 C.F.R. 121a.13 (1978) Miscellaneous: S. Chaikind et al., What Do We Know About the Costs of Special Education? A Selected Review, 26 J. Spec. Educ. 344 (1993) 121 Cong. Rec. 23,707 (1975) 128 Cong. Rec. (1982): p. 20,620 p. 21,793 129 Cong. Ree. 33,316 (1983) 143 Cong. Rec. $4300 (daily ed. May 12, 1997) 148 Cong. Rec. $4373 (daily ed. May 13, 1997) 143 Cong. Rec. 84407 (daily ed. May 14, 1997) VIII Miscellaneous Continued: Education for All Handicapped Children, 1973-1974: Hearings on S.6 Before the Subcomm. on the Handicapped of the Senate Comm. on Labor & Public Welfare, 93d Cong., Ist Sess., Pt. 1 (1973) Federation of State Medical Boards of the United States, A Guide to the Essentials of a Modern Medical Practice Act (1985) reprinted in Medical Malpractice: Hearings Before the Subcomm. on Health & the Eu of the House Comm. on Energy & Commerce, 99th Cong., 2d Sess. (1986) 42 Fed. Reg. 42,479 (1977) 45 Fed. Reg. 86,390 (1980) 47 Fed. Reg. (1982): pp. 49,871-49,872 Financial Assistance for Improved Educational Ser- vices for Handicapped Children: Hearings Before the Select Subcomm. on Educ. of the House Comm. on Educ. & Labor, 98d Cong., 2d Sess. (1974) Health Care Financing Admin., U.S. Dep’t of Health & Human Servs., Medical and School Health School Health: A Technical Assistance Guide (Aug. 1997) H.R. Rep. No. 332, 94th Cong., Ist Sess. (1975) H.R. Rep. No. 906, 97th Cong., 2d Sess. (1982) H.R. Rep. No. 410, 98th Cong., Ist Sess. (1983) H.R. Rep. No. 860, 99th Cong., 2d Sess. (1986) H.R. Rep. No. 661, 100th Cong., 2d Sess. (1988) H.R. Rep. No. 95, 105th Cong., Ist Sess. (1997) A. Katsiyannis, Provision of Related Services: State Practices and the Issue of Eligibility Criteria, 24 J. Spec. Educ. 246 (1990) Letter to Anderson, 24 Ind. Disab. Educ. L. Rep. 180 (Feb. 22, 1996) iS Misvellaneous—Continued: Page Letter to Anonymous, 25 Ind. Disab. Educ. L. Rep. 531 (Nov. 18, 1996) 19, 20 Letter to Del Polito, Educ. Handicap. L. Rep. 211:392 (June 24, 1986) Letter to Greer, 19 Ind. Disab. Educ. L. Rep. 348 (July 14, 1992) Letter to Jacobs, Educ. Handicap. L. Rep. 211:54 (Aug. 14, 1978) Letter to Janda, Educ. Handicap. L. Rep. 211:205 (Jan. 25, 1979) Letter to Johnson, 20 Ind. Disab. Educ. L. Rep. 174 (Apr. 20, 1993) Letter to Millman, Educ. Handicap. L. Rep. 211:104 (June 5, 1979) Letter to Minsky, Educ. Handicap. L. Rep. 211:19 (Apr. 27, 1978) 17-18 D. L. Montgomery, Am. Insts. for Research, State Analysis Series, A Profile of Special Education Finance Reform in Vermont (Mar. 1995) Nat'l Inst. on Disability and Rehabilitation Research, Disability Statistics Reports: Medical Expenditures for People with Disabilities in the United States, 1987 (1996) 26, Office of Technology Asssessment, U.S. Congress, Technology-Dependent Children: Hospitai v. Home Care: A Technical Memorandum (1987) Oversight Hearings on Proposed Changes in Regula- tions for the Education for All Handicapped Child- ren Act: Before the Subcomm. on Select Educ. of the House Comm. on Educ. & Labor, 97th Cong., 2d Sess. (1982) T. B. Parrish et. al, Center for Spec. Educ. Fin., State Special Education Finance Systems, 1994-95 (June 1997) S. Rep. No. 168, 94th Cong., Ist Sess. (1975) 13, S. Rep. No. 17, 105th Cong., Ist Sess. (1997) x In the Supreme Court of the United States Miscellaneous—Continued: Page BER TERM, 1907 1 Task Force on Technology-Dependent Children, No. 96-1793 U.S. Dep’t of Health & Human Servs., Fostering Home and Community-Based Care for Technology- CEDAR RAPIDS 1 HOOL DISTRICT, Dependent Children (1988) 27 U.S. Gen. Accounting Office, Special Education: V. Financing Health and Educational Services for GARRET F., A MINOR BY HIS MOTHER AND Handicapped Children (July 1986) 26 NEXT FRIEND, CHARLENE F. Webster's Third International Dictionary (1986) . 11 ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT BRIEF FOR THE UNITED STATES AS AMICUS CURIAE INTEREST OF THE UNITED STATES The United States Department of Education has respon- sibility for the administration and enforcement of the Indi- viduals with Disabilities Education Act (IDEA). 20 U.S.C. 1413(c), 1416(a), 1417(b), 1420. In response to the Court’s invitation, the United States filed a brief as amicus curiae at the petition stage in this case. STATEMENT 1. a. Respondent is a student in the petitioner school dis- trict. He was severely injured in an accident in 1987, when he was four years old. Pet. App. 9a, 19a.’ The accident left him paralyzed from the neck down. Respondent has com- Our factual statement includes facts set forth in the decision of the lowa state administrative law judge (ALJ), as well as the record before the ALJ. Neither party introduced any additional evidence before the district court. The ALJ’s factual findings are treated as correct in peti- tioner’s submissions to this Court and are entitled to due weight. See Board of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley, 458 U.S. 176, 206 (1982). (1) 2 plete head movement, has normal mental capacity, is able to speak, is able to operate his motorized wheelchair through use of a puff and suck straw, and is able to control his com- puter through the use of a device attuned to his head move- ments. Id. at 9a, 19a; Tr. 29, 84-85, 291-292. Respondent is “academically successful in school” and, at the time of the administrative hearing, his most recent report card included several A’s, one B-plus, and one C. Pet. App. 19a. Respon- dent is knowledgeable about his health care and is able orally to instruct others about his needs. Jd. at 20a; Tr. 79-80, 85, 463. Respondent’s respiratory muscles are paralyzed, so that he needs external aids to breathe, usually an electric ventila- tor. Pet. App. 19a, Tr. 41. The ventilator is connected to a tube inserted into an incision in his trachea (a tracheotomy tube). Tr. 332. From time to time, it is necessary to suction respondent’s lungs through the tube to remove secretions that would normally be discharged by swallowing or cough- ing; the ventilator signals when that is necessary. Tr. 37. During the suctioning process, and during any other period when the ventilator is not functioning, air must be pumped in manually through an air bag attached to the tracheotomy tube. Pet. App. 19a, 24a. That suctioning and bagging are simple processes regularly performed by respondent’s friends and family. Pet. App. 21a; Tr. 32, 176-177. When respondent is not at school, his health care is pro- vided during the day and on weekends by family members and friends who are familiar with his needs. Pet. App. 21a. On week nights, a health care provider is in respondent’s home during the sleeping hours to attend to his needs, in- cluding turning him in his sleep every two hours. Jbid. That health care provider is a licensed practical nurse (L.P.N.) who is supervised by a registered nurse (R.N.) who is not on site. Ibid. b. In the fall of 1988, respondent began attending school in the petitioner school district. Pet. App. 19a, 23a. Re- 3 spondent needs special assistance with his education pro- gram and with health matters in order to benefit from that education program. Pursuant to the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et se., Iowa receives federal special education funds and is, there- fore, required to provide “special education and related services” to respondent and other students with disabilities. 20 U.S.C. 1400(c). “[Rjelated services” are defined by statute to include supportive services that are required to assist a student with a disability to benefit from special education, but exclude “medical services” unless they are for diagnosis or evaluation. 20 U.S.C. 1401(a)(17). Petitioner provides respondent special education and cer- tain related services, including special assistance through a one-on-one teacher associate who continuously helps with respondent’s needs such as page turning, note taking, computer set up, transporting of books, and maneuvering about the school building; special transportation services; and occupational therapy. Pet. App. 27a, 58a; Tr. 29-30. And petitioner provides devices, such as a computer, special soft- ware, and other instructional materials, that serve respon- dent’s unique educational needs. Pet. App. 27a; Pet. 3. Petitioner does not dispute its statutory responsibility to provide the foregoing services. In 1993, when respondent was about to start fifth grade, his family requested that the petitioner school district, pursuant to its obligations under IDEA and Iowa special education law, provide respondent certain health services that he needs in order to assist him to benefit from special education. Respondent requested that petitioner make 2 In earlier years, respondent’s parents apparently had made similar requests that had been denied, Pet. App. 23a, Tr. 94-95, 637-638, and the family had managed to pay for the health services through a combination of a settlement fund from respondent’s accident and insurance policies (of which one ceased payment because the coverage limit was reached and an- 4 available someone to be in the vicinity of respondent: to assist with the ventilator management as described above; to assist with urinary bladder catheterization once a day; to suction respondent’s tracheotomy tube as needed (or once every six hours); to get respondent into a reclining position for five minutes of each hour; and to be available for emergency procedures in the unlikely event respondent experiences autonomic hyperreflexia. Pet. App. 20a. Re- spondent has never needed emergency care at school. Id. at 23a; Tr. 392. Petitioner refused to pay for the requested health serv- ices. Although an individualized education program (IEP) was developed for respondent as required by IDEA, school district staff members declined to include the requested services as part of that IEP, based “on advice from legal counsel” that the services were excluded “medical services” rather than “related services.” Pet. App. 25a; Tr. 512, 524, 568-569; Exh. 93 at 390. 2. Respondent pursued an administrative appeal and, af- ter a three-day evidentiary hearing, an Iowa state adminis- trative law judge (ALJ) ruled in his favor. Pet. App. 17a- 63a. The Iowa ALJ held that the health care services re- quired by respondent are “related services” which must be other has an annual coverage limit that is normally exceeded by mid-year), Pet. App. 20a-21a. 3 The ALJ found that autonomic hyperreflexia is an adverse reaction to anxiety or a full bladder that affects blood pressure and heart rate; respondent has experienced autonomic hyperreflexia rarely, and never at school, and it has usually been alleviated by catheterization. Pet. App. 20a. 4 In States receiving IDEA funds (which as of August 1998 includes all States), each child with a disability must receive an “individualized educa- tional program” (IEP) each year designed by a team that includes school representatives and parents. The team determines what services a child requires to receive a “free appropriate public education” in a regular edu- cation environment “to the maximum extent appropriate.” 20 U.S.C. 1401(a\(18) and (20), 141265 B), 1414(aX5); Honig v. Doe, 484 U.S. 305, 311 (1988); Rowley, 458 U.S. at 181-182, 202. 5 provided by the district and not “medical services” excluded from that requirement by IDEA under 20 U.S.C. 1401(a)(17). Pet. App. 52a. The ALJ relied on Irving Independent School District v. Tatro, 468 U.S. 883 (1984), in which “the Court affirmed a Congressional and administrative distinction be- tween nursing services and medical treatment as a related service” under IDEA. Pet. App. 43a. Tatro applied the Secretary’s regulation providing that “the services of a school nurse could be required as a related service, and treatment by a ‘licensed physician’ could be excluded” under IDEA as a “medical service,” finding that the regulation was a reasonable interpretation of the statute. Jd. at 42a, 44a. The ALJ noted that Tatro did not treat expense, or the extent of the services required, as a factor for courts to consider. Id. at 42a. The ALJ ruled that a service is an ex- cluded “medical service” if “the service ‘must be performed by a physician.’” Id. at 51a (quoting Tatro, 468 U.S. at 894). Applying that standard, the ALJ determined that the health care services required by respondent at school can be “provided by a ‘qualified school nurse or other qualified person’ and are thus ‘school health services’ required by IDEA as a related service.” Pet. App. 52a. Furthermore, the ALJ ruled that, even under the multi- factor test applied by some courts that weighs expense, bur- den, extent and nature of the services, the health care serv- ices required by respondent are “related services” under IDEA. Pet. App. 52a.° The ALJ noted that the services 5 The cost of the required services depends primarily on the licensure of the person providing them, i.e., a registered nurse (R. N.) is more ex- pensive than a licensed practical nurse (L.P.N.) or a nonlicensed trained care provider. See Pet. App. 34a-36a. The parties agree that the services at issue need not be provided by a physician, but disagree regarding whether an R. N., an L. P. N., or a trained care provider is required. Id. at 20a. Petitioner contended below that an R.N. was required, but the lowa Board of Nursing ruling on which petitioner relied was changed at peti- tioner’s request following its loss below. See U.S. Amicus Br. on Pet. 9-10. 6 needed by respondent are similar to services already pro- vided to other students in petitioner’s school district— petitioner provides other students urinary catheterization, help with food and drink, oxygen supplement positioning, tracheostomy suctioning and bagging. The only service needed by respondent and not already provided by the school to other students is the monitoring of his ventilator. Id. at 53a. Finally, the ALJ held that “even if federal law did not require school health care services for [respondent], state law does.” Jd. at 58a; see also id. at 54a-55a. Thus it ordered petitioner to reimburse respondent for health-care costs incurred for the 1993-1994 school year. Jd. at 63a. 3. Petitioner filed suit in federal district court pursuant to 20 U.S.C. 1415(e)(4) and 28 U.S.C. 1367, challenging the ALJ’s decision on both state and federal grounds. Pet. App. ga. On cross-motions for summary judgment, the district court affirmed the ALJ’s determination, Jin accordance with the appropriate standards, in light of Tatro, and for the reasons set forth in the ALJ’s thorough decision.” Jd. at 15a. The court ruled that the needed services were not excluded “medical services” under IDEA, but instead required “re- lated services.” Id. at 1la-15a. The court did not address the state law issues. Id. at l5a. 4. The court of appeals affirmed. Pet. App. la-7a. After finding that the services respondent requires “qualify as supportive services necessary to enable him to enjoy the benefit of special education” and that such services need not be provided by a physician, it held that they are “related services” which petitioner is reovtired to provide. Id. at 6a. It explained that Tatro “established a bright-line test: the services of a physician (other than for diagnostic and evalua- tion 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.” Jbid. While acknowl- edging that its reading of Tatro conflicts with that of other circuits, it deelineſd] to seize dicta in Tatro to go beyond the 7 physician/non-physician test which the Supreme Court sets forth therein.” Id. at Ta. SUMMARY OF ARGUMENT The Individuals with Disabilities Education Act (IDEA), 20 U.S.C. 1400 et seq., requires that States receiving federal special education funds provide special education and “re- lated services” to students with disabilities. “(RJelated services” are defined to include supportive services that are required to assist a child with a disability to benefit from special education, but exclude “medical services” unless they are for diagnosis or evaluation. 20 U.S.C. 1401(a)(17). The Secretary of Education properly interprets the term “medical services” in this context to mean only services provided by a physician, and not school health services that can be provided by a non-physician. That interpretation is supported by the plain language of the statute. The Secretary of Education is authorized by Congress to issue regulations as necessary to carry out the requirements of IDEA, and his interpretation of the statutory term is enti- tled to administrative deference for that reason. Moreover, that interpretation is additionally entitled to respect because Congress ratified it when, in 1982, Congress opposed the then-Secretary’s attempt to expand the medical services ex- clusion and to restrict the related services provision. And, in 1983, Congress enacted Section 6 of the Education of the Handicapped Act Amendments of 1983, Pub. L. No. 98-199, 97 Stat. 1357, 1359 (codified as amended, 20 U.S.C. 1407(b)), which prohibits the Secretary from implementing any regu- lation that would lessen the protections afforded children with disabilities under IDEA, as embodied in the Secretary’s regulations then in effect, unless such new regulation re- flects the clear and unequivocal intent of Congress in legisla- tion. Thus, petitioner's attempt to construe the “medical services” exclusion to depend on factors such as cost is, in 8 essence, an effort to obtain through the courts what Con- gress rejected. Petitioner’s arguments concerning the financial burden it claims would be imposed by affirmance of the court of ap- peals’ judgment ignore the steps Congress has taken to en- sure that other federal and state sources assist local school districts to pay the costs of related services for many stu- dents. ARGUMENT THE SECRETARY OF EDUCATION’S REGULATION CORRECTLY INTERPRETS THE “MEDICAL SERV- ICES” EXCLUDED FROM COVERAGE UNDER IDEA TO BE SERVICES THAT MUST BE PROVIDED BY A PHYSICIAN A. The Plain Language Of IDEA Shows That Excluded “Medical Services” Are Services Provided By A Physi- cian And Not Health Services Provided By Non-Physi- cians 1. The central purpose of the Individuals with Disabili- ties Education Act (IDEA), 20 U.S.C. 1400 et seq., is to en- sure that children with disabilities have available to them a “free appropriate public education” (FAPE) which includes “special education and related services designed to meet their unique needs.” 20 U.S.C. 1400(c).° In order to qualify The statute originally was entitled the Education of the Handi- capped Act (EHA), Pub. L. No. 91-230, 84 Stat. 175 (1970), and has since been amended on numerous occasions, including when Congress enacted the Education for All Handicapped Children Act of 1975 (EAHCA) to amend the EHA in significant respects, and to define, for the first time, the terms “special education” and “related services.” Pub. L. No. 94-142, 89 Stat. 773, 775. In 1990, Congress changed the title of the statute to the Individuals with Disabilities Education Act (IDEA). Education of the Handicapped Act Amendments of 1990, Pub. L. No. 101-476, § 901(a)(1) and (3), 104 Stat. 1108, 1141, 1142 (1990 Amendments). Most recently, Congress reauthorized and amended IDEA on June 4, 1997. See Individu- als with Disabilities Education Act -_— of 1997, Pub. L. No. 105- for assistance under IDEA, a State must demonstrate to the Secretary of Education (Secretary), inter alia, 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), and “procedures to assure that, to the maximum ex- tent appropriate, children with disabilities, * are educated with children who are not disabled, and that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily,” 20 U.S.C. 1412(5)(B). Congress defined FAPE to mean “special education and related services” that meet certain standards and are “provided at public expense, under public supervision and direction, and without charge.” 20 U.S.C. 1401(a)(18). “{S}pecial education” is defined as “specially designed in- struction, at no cost to parents or guardians, to meet the unique needs of a child with a disability,” including in- struction in classrooms, the home, hospitals and other settings. 20 U.S.C. 1401(a)(16). Related services” are: 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 ser- vices, 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 identi- 17, 111 Stat. 37 (1997 Amendments). For a more detailed history of the statute’s early evolution, see Rowley, 458 U.S. at 179-180. 10 fication and assessment of disabling conditions in chil- dren. 20 U.S.C. 1401(aX(17).’ The term “related services” is not limited to the services enumerated in the statute as “other supportive services,” as is plain from the fact that Congress introduced that list by use of the term “including.” See Herb’s Welding, Inc. v. Gray, 470 U.S. 414, 423 n.9 (1985); American Surety Co. v. Marotta, 287 U.S. 513, 517 (1933). On its face, the statute requires States to provide as “related services” all services “as may be required to assist a child with a disability to benefit from special education,” with the single exception of nondiagnostic and nonevaluative medical services. 20 U.S.C. 1401(aX(17). It is undisputed that the services at issue in this case are required to assist respondent to benefit from his special education program. The services “fall squarely within the definition of a ‘supportive service’” for the same reason that catheterization did in Irving Independent School District v. Tatro, 468 U.S. 883 (1984): because without the services respondent “cannot attend school and thereby ‘benefit from special education. 468 U.S. at 890; Pet. App. 59a (“If the District refuses to provide health care and the family can’t provide it,” the “only apparent alternative is a homebound program.“); Tr. 87, 637-638, 661. As the Tatro Court explained, “[sjervices * that permit a child to remain at Tue statutory provisions at issue in this case have been altered only slightly during the course of the various statutory amendments described in note 6, supra. See, g., 1990 Amendments, § 101(c), 104 Stat. 1103 (adding “therapeutic recreation,” “social work services,” and “rehabilita- tion counseling” as examples of supportive services that are included under the “related services” definition) 1997 Amendments, § 101, 111 Stat. 45 (adding “orientation and mobility” to the listed examples of supportive services). Unless otherwise noted, we cite to the 1994 codified version of IDEA in effect before the 1997 amendments and during the year for which respondent sought payment from petitioner for the challenged services. 11 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 school,” all of which are required by IDEA. 468 U.S. at 891. 2. Petitioner contends that the services respondent re- quires are not “related services” under IDEA because they fall within the exception carved out by Congress for “medical services.” In defining “related services” Congress listed, as an example, “medical services, except that such medical services shall be for diagnostic and evaluation purposes only.” 20 U.S.C. 1401(a)(17). It is undisputed that the ser- vices at issue here are not for diagnosis or evaluation. Therefore, if they are “medical services,” they are not “re- lated services” under IDEA. Congress did not define the term “medical services” in IDEA. Thus, we start with the “‘ordinary, contemporary, common meaning.” Walters v. Metropolitan Educ. Enters., Inc., 117 S. Ct. 660, 664 (1997). The adjective “medical” is commonly understood to mean “of, relating to, or concerned with physicians or with the practice of medicine often as dis- tinguished from surgery.” Webster’s Third International Dictionary 1402 (1986). For example, a person who goes to “medical school” is understood to be training to be a physi- cian. In most States, the “Medical Practice Act” regulates physicians and generally bars anyone but physicians from “practicing medicine.” See generally Federation of State Medical Boards of the United States, A Guide to the Essen- tials of a Modern Medical Practice Act (1985), reprinted in Medical Malpractice: Hearings Before the Subcomm. on Health & the Ent of the House Comm. on Energy & Com- merce, 99th Cong., 2d Sess. 393-421 (1986). lowa, for exam- ple, has a “Board of Medical Examiners” to license and regulate physicians, and a “Board of Nursing” to license and regulate nurses. See Iowa Code Ann. 148.1-148.13, 152.1- 152.12 (West 1997). 12 Petitioner suggests (Br. 14-15, 34) that the statutory lan- guage should be interpreted not according to its plain mean- ing but instead according to a five-factor test; in determining whether services are “medical,” courts should consider whether they are complex, continuous, outside the capabili- ties of existing school health personnel, expensive, or likely to have serious repercussions when improperly performed. That five-factor test finds no support in the statutory language. Moreover, each of the factors is contradicted by the examples of “related services” contained in the statute, or otherwise indisputably included among the services that schools must provide. Many of the “related services” expressly listed in the statute, including “psychological services” and “physical and occupational therapy,” may vary widely in complexity de- pending on the needs of the student receiving the services. 20 U.S.C. 1401(aX(17). Yet the statute is correctly inter- preted to require provision of those services regardless of complexity otherwise the “cardinal principle of statutory construction” would be violated by not giving effect to every word of the statute. Bennett v. Spear, 117 S. Ct. 1154, 1166 (1997); United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 550 (1996). So too, numerous continuous services are indisputably re- quired by IDEA. Congress heard testimony about the pro- vision of continuous services to children with various dis- abilities during the legislative proceedings surrounding en- actment of the Education for All Handicapped Children Act of 1975, Pub. L. No. 94-142, 89 Stat. 773 (EAHCA), which de- fined “related services” for the first time.“ Indeed, peti- See 121 Cong. Ree. 23,707 (1975) (statement of Rep. Quie) (readers for blind children); Financial Assistance for Improved Educational Services for Handicapped Children: Hearings Before the Select Subcomm. on Educ. of the House Comm. on Educ. & Labor, 98d Cong., 2d Sess. 261 (1974) (ratio of one-to-one may be required for most severely handi- capped); Education for All Handicapped Children, 1973-1974: Hearings 13 tioner does not contest (Br. 5, 6-7, 19) that IDEA requires it to provide a full-time one-on-one associate to help respon- dent move about the building, turn pages, and manipulate other materials. Exh. 91 at 364; Pet. App. 27a; see also Tr. 546. Persons other than existing school health personnel are often needed to provide many of the related services ex- pressly listed in the statute including “speech pathology and audiology, psychological services, [and] physical and occupational therapy.” 20 U.S.C, 1401(a)(17). As this Court recognized in Tatro, “Congress plainly required schools to hire various specially trained personnel to help handicapped children, such as ‘trained gecupational therapists, speech therapists, psychologists, s6cial workers and other appropri- ately trained pers 468 U.S. at 893, quoting S. Rep. No. 168, 94th Cong. Ist Sess. 33 (1975). Congress recognized that providing a free appropriate public education under IDEA would be costly. “There is no doubt that Congress has imposed a significant financial bur- den on States and school districts that participated in IDEA.” Florence County Sch. Dist. Four v. Carter, 510 U.S. 7, 15 (1993). In enacting the EAHCA in 1975, Congress understood that, on average, special education and related services for a child with a disability cost two to three times more than a regular education. H.R. Rep. No. 382, 94th Cong., Ist Sess. 12 (1975). That ratio has remained constant over the ensuing 20 years. See S. Chaikind et al., What Do We Know About the Costs of Special Education? A Selected Review, 26 J. Spec. Educ. 344, 344-345 (1993).” The text and on S. 6 Before the Subcomm. on the Handicapped of the Senate Comm. on Labor & Public Welfare, 98d Cong., Ist Sess., Pt. 1 at 1467 (1973) (one to one relationship required in some instances). ® The costs of IDEA services should be viewed comparatively. If a child with a disability cannot receive the free appropriate public education he requires at school, then the school district will have to provide it in a home or an institutional setting. It thus could be necessary for school 14 history of the statute show that Congress addressed cost concerns through other provisions of IDEA, and not by ex- cluding related services on the basis of cost. See pp. 24-30, infra. Finally, services that can have catastrophic consequences when improperly performed are indisputably included among the related services required by IDEA. The statute expressly lists psychological services, which can, in the case of a suicidal child, have extremely serious consequences. And catheterization—the service held to be a non-medical related service in Tatro—can lead to death if improperly performed. See Lee v. Andrews, 545 S.W.2d 238 (Tex. Civ. App. 1976). Thus, none of petitioner’s “factors” was intended or un- derstood by Congress to be a basis for excluding services from IDEA’s “related services” requirement. Neither alone nor in combination can those factors transform a nonmedical “related service” into an excluded “medical service.” 3. Petitioner attempts (Br. 20-21) to find in this Court’s precedents a general principle that statutes enacted pur- suant to Congress’s power under the Spending Clause, U.S. Const., Art. I, § 8, Cl. 1, should be construed to minimize the costs imposed on States, citing, inter alia, Pennhurst State School & Hospital v. Halderman, 451 U.S. 1 (1981), and Gebser v. Lago Vista Indep. Sch.Dist., 118 S.Ct. 1989 (1998), but it is mistaken. There is nothing in those cases to suggest that, when it is clear that Congress intended to impose pri- vately enforceable obligations on recipients of federal funds to provide special education and related services, the scope of those obligations should be determined by anything other than normal rules of statutory construction. Tatro, 468 U.S. districts to pay for a one-on-one teacher to teach the child in his home. In lowa, such services are paid for by an area education agency rather than by the school district, Tr. 284, which may explain why petitioner does not discuss them. 15 at 891 n.8; Bennett v. Kentucky Dep't of Educ., 470 U.S. 656, 665-666 (1985); School Bd. of Nassau County v. Arline, 480 U.S. 273, 286 n.15 (1987). In any event, IDEA was enacted not only pursuant to Congress’s authority under the Spend- ing Clause, but also pursuant to Section 5 of the Fourteenth Amendment. See 20 U.S.C. 1400(b\(9) (Congress declaring intent in enacting EAHCA to “assist State and local efforts to provide programs to meet the educational needs of children with disabilities in order to assure equal protection of the law”); Smith v. Robinson, 468 U.S. 992, 1013 (1984) (holding that IDEA precludes claim based on Equal Pro- tection Clause because Congress intended IDEA to be the exclusive “vehicle for protecting the constitutional right of a handicapped child to a public education”); Rowley, 458 U.S. at 180 n.2., 192-200. Moreover, two principles of statutory construction point in the opposite direction from petitioner’s proposed ap- proach: first, the canon that exceptions should be narrowly construed, see City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 731-732 (1995); John Hancock Mut. Life Ins. Co. v. Harris Trust & Sav. Bank, 510 U.S. 86, 96 (1993); and second, the principle that statutes, including those creating federal programs under the Spending Clause, are to be construed with deference to the regulations of the admin- istering agency, see, e. g., Regions Hosp. v. Shalala, 118 8. Ct. 909, 915 (1998); Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 414-420 (1993); Rust v. Sullivan, 500 U.S. 173, 184- 190 (1991). B. The Secretary Of Education’s Interpretation Of The “Medical Services” Exclusion Is Reasonable, Long- standing, And Entitled To Deference 1. Congress delegated substantial authority to the Secre- tary under IDEA, including the power to review state plans, 20 U.S.C. 141 (0), to disburse federal funds, 20 U.S.C. 1420, and to withhold federal funds if there is a failure to comply with statutory requirements, 20 U.S.C. 1416(a). Congress 16 also entrusted the Secretary with the authority to issue “such rules and regulations as may be necessary,” to carry out the requirements of "DEA. 20 U.S.C. 1417(b). The Secretary's regulations are “entitled to ‘legislative effect,’ and [are] controlling ‘unless [they are] arbitrary, capricious, or manifestly contrary to the statute.’” Atkins v. Rivera, 477 U.S. 154, 162 (1986) (citations omitted); see Tatro, 468 U.S. at 891-892 (deferring to Secretary’s IDEA regulations); Honig v. Doe, 484 U.S. 305, 325 n.8 (1988) (same); Chevron U.S.A. Ine. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984). Deference to the Secretary’s interpre- tation of his own regulation is particularly appropriate here because of the longstanding nature of his interpretation. See Zenith Radio Corp. v. United States, 473 U.S. 433, 450 (1978); see also Auer v. Robbins, 117 S. Ct. 905, 911 (1997); Honig, 484 U.S. at 325 n.8 (deferring to Department of Education policy letter). 2. The “related services” regulation at issue here was ini- tially promulgated in its current form in 1977, 42 Fed. Reg. 42,479 (1977) (codified at 45 C. F. R. 121a. 13 (1978)), and is currently faund at 34 C.F.R. 300.16. Throughout the in- tervening 20 years, the regulation has specified that “related services” include, inter alia, “school health services,” which it defines as “services provided by a qualified school nurse or other qualified person.” 34 C.F.R. 300.16(a) and (b)(11).” The regulation also has provided that “related services” in- clude “medical services for diagnostic or evaluation pur- % A “qualified” person is “a person [who] has met [state educational agency] approved or recognized certification, licensing, registration, or other comparable requirements that apply to the area in which he or she is providing special education or related services.” 34 C.F.R. 300.15. The licensing requirements for performance of various tasks by non-physicians may vary from State to State but, as petitioner concedes (Pet. Br. 36), these requirements do not affect a student’s entitlement to provision of related services under IDEA. See also Br. of Amici Curiae National Ass’n of Protection and Advocacy Systems et al. 23, n.14. \ 17 poses,” and that “medical services,” as used in the related services regulation, are those “services provided by a li- censed physician to determine a child’s medically related dis- ability that results in the child’s need for special education and related services.” 34 C. F. R. 300.16(a) and (b)(4). Read together, those definitions establish that services provided by physicians, known as “medical services,” are to be treated differently from all other health-related services that are necessary to assist a child with a disability to benefit from special education. Services provided by physicians are ex- cluded unless they are diagnostic or evaluative, while ser- vices that can be provided by other qualified health person- nel are “related services” so long as they are necessary to as- sist a child with a disability to benefit from special education. In Tatro, this Court so construed the Secretary’s regula- tion (then codified at 34 C. F. R. 300.13(b)(4)(1983)). The Court concluded that, because the regulation defines the “medical services” that are owed under IDEA as services provided by licensed physicians for purposes of diagnosis or evaluation, I plresumably this means that ‘medical services’ not owed under the statute are those ‘services by a licensed physician’ that serve other purposes.” 468 U.S. at 892 n.10. That presumption derives from the common-sense principle that a single term—“medical services”—normally has a sin- gle meaning in determining both what is included and what is excluded under a single statutory provision. 3. The Secretary has consistently read his regulations in that manner. Following initial promulgation of thé regula- tion (and before Tatro), the Secretary’s representatives ex- pressly repeated, in policy letters responding to inquiries about the provision of psychotherapy, the principle that cov- erage under the statute depends on whether a service is provided by a physician. The Secretary explained that if psychotherapy is interpreted in your State as a medical service (i.e. administered by a licensed physician), this serv- ice would not be required.” Letter to Minsky, Educ. Handi- 18 cap. L. Rep. 211:19, 20 (Apr. 7, 1978); accord Letter to Janda, Educ. Handicap. L. Rep. 211:205, 206 (Jan. 25, 1979). On the other hand, “in some States (and with certain professional disciplines) ‘psychotherapy’ might be provided by someone other than a psychiatrist (eg., a psychiatrie social worker, ete.). In such cases, the provision of psychotherapy by some- one other than a psychiatrist could be considered to be an appropriate related service under the regulations—if the service is needed to assist a handicapped child to benefit from special education.” Letter to Millman, Educ. Handicap. L. Rep. 211:104, 105 (June 5, 1979). Petitioner errs in contending (Br. 25-27) that the above- cited letters and other policy letters by the Secretary’s dele- gates do not apply a bright-line distinction between services provided by a physician and services provided by non- physicians. Petitioner (Br. 25-27) and its amicus (Br. of Amici Curiae National Ass’n of Protection and Advocacy Systems et al. 14 (NSBA Br.) specifically focus on a February 22, 1996, policy letter (Letter to Anderson, 24 Ind. Disab. Educ. L. Rep. 180, reprinted at Pet. App. 64a-67a), to contend that the Secretary “renounced” the bright-line test. See also Morton Community Unit Sch. Dist. No. 709 v. J.M., No. 97-3962, 1998 WL 420393 (7th Cir. July 27, 1998) (criticiz- ing letter as evasive and noncommittal). The February 22, 1996, letter was a response to a general inquiry whether the Secretary considers “one-to-one nursing services necessary for a student with disabilities to attend a public school setting” to be “a required related service or a medical service as determined by several recent court deci- 1! See also Letter to Jacobs, Educ. Handicap. L. Rep. 211:54 (Aug. 14, 1978) (explaining that an optometrist, i.e., a non-physician, may provide “diagnostic services” with IDEA funds, just as an audiologist may, but specifying that he is not qualified to provide “medical diagnostic services, because (among other things) they do not meet the definition of ‘medical services’ * * * (i.e. ‘medical services’ means services provided by a licensed physician”). 19 sions?” 24 Ind. Disab. Educ. L. Rep. at 180. Because the question specifically referenced court decisions, the letter cited the various court decisions and acknowledged that courts have reached differing conclusions, and have based their analysis on various factors. Ibid. The letter clearly attributes that analysis to courts and does not, contrary to petitioner’s claim (Br. 27), endorse it as the policy of the Department of Education. See also Letter to Anonymous, 25 Ind. Disab. Educ. L. Rep. 531, 582 (Nov. 13, 1996)(cited at Pet. Br. 27) (discussing distinction as one made by courts, not by the Department of Education). The February 22, 1996, letter further notes that the question posed “could arise in a variety of factual contexts,” and that the Secretary cannot “express a view as to whether or not ‘one-to-one nursing’ services are a required related service for an individual disabled student,” because “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 * * by the participants on the student’s IEP team.” 24 Ind. Disab. Educ. L. Rep. at 180. The letter then unequivocally states that, Ailf 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.” bid. Thus, that letter reaffirmed the Secretary’s longstanding interpretation of IDEA that services provided by a nurse are not excluded medical services. The case-by-case analysis required by the Secretary’s policy letters is not, as petitioner contends (Br. 27), a rejec- tion of the bright-line physician/non-physician rule. Rather, it is the three-prong test that the Secretary derived from 20 Tatro to be applied on a case-by-case basis to determine whether a health service must be provided: First, in order to be entitled to receive the service, the child must be handicapped * * * Second, the service must be necessary to aid a handicapped child to benefit from special education. If the treatment or medication could be given during non-school hours, then the school district is not required to provide the service, even if the burden would be minimal. Third, the service need only be provided if it can be provided by a nurse or other qualified person, not a physician. Letter to Del Polito, Educ. Handicap. L. Rep. 211:392, 398 (June 24, 1986); Letter to Greer, 19 Ind. Disab. Educ. L. Rep. 348, 349 (July 14, 1992) (same); Letter to Johnson, 20 Ind. Disab. Educ. L. Rep. 174, 175 (Apr. 20, 1993) (same); 25 Ind. Disab. Educ. L. Rep. at 532 (same). 4. The courts that have adopted some type of balancing test based on the nature of the service and the economic burden it would place on a school district apparently view the Secretary’s regulation to be an imperfect measure of the policies underlying the statutory “medical services” exclu- sion. See, e.g., Detsel v. Board of Educ. of Auburn, 637 F. Supp. 1022 (N. D. N. V. 1986), aff’d, 820 F. 2d 587 (2d Cir.) (per curiam), cert. denied, 484 U.S. 981 (1987). Such an approach misconceives the proper relationship between the courts and the Secretary’s delegated authority to issue regulations necessary to carry out the requirements of IDEA. 20 U.S.C. 1417(b). The Court explained in Tatro that the Secretary could have reasonably selected his definition of “medical services” in an attempt to spare school districts from unduly expensive services, reasoning that services provided by phy- sicians were, on average, more expensive than other health services. See 468 U.S. at 892-893. The Secretary’s regulation reflects a reasonable determi- nation that a bright-line rule regarding the meaning of — 21 “medical services” will serve the policies of the statute bet- ter than a multi-factored test requiring individualized deter- minations in each case. See FCC v. WNCN Listeners Guild, 450 U.S. 582, 600-601 (1981); Schweiker v. Gray Panthers, 453 U.S. 34, 48-50 (1981); Mourning v. Family Publications Serv., Ine., 411 U.S. 356, 371-374 (1973). The regulation eliminates the costs and confusion that would result from a multi-factored test that would require adjudication of varied factual circumstances through the extensive appellate processes provided under the Act. See Gray Panthers, 453 U.S. at 48; Weinberger v. Salfi, 422 U.S. 749, 782-785 (1975); American Hosp. Ass'n v. NLRB, 899 F.2d 651, 659 (7th Cir. 1990) (Posner, J.) (“A rule makes one or a few of a mass of particulars legally decisive, ignoring the rest. The result is a gain in certainty, predictability, celerity, and economy, and a loss in individualized justice. Often the tradeoff is worth- while; at least the prevalence of rules in our legal system So- suggests.”), aff'd, 499 U.S. 606 (1991). C. Congress Has Ratified The Secretary's Interpretation Of “Related Services” And The “Medical Services” Ex- clusion In IDEA After the statute had been interpreted to require States to provide school health services as “related services,” and to exclude only physician-provided services as “medical serv- ices,” Congress ratified that interpretation in the Education of the Handicapped Act Amendments of 1983, § 6, Pub. L. No. 98-199, 97 Stat. 1357, 1359. On August 4, 1982, the then-Secretary of Education had issued proposed regulations that would have changed vari- ous regulations governing assistance to States for the educa- tion of handicapped children. 47 Fed. Reg. 33,836-33,860 (1982). One of his proposals was to narrow the “related ser- vices” regulation. The proposal was motivated by concerns about cost. The Secretary stated, in language similar to that of petitioner’s amicus (NSBA Br. 24-28), that “[s]chools face increasing costs in providing related services as health agencies and insurers which formerly paid them shift this responsibility * * * Many school officials have expressed their belief that some limitations must be placed on their responsibility for providing related services in light of their agencies’ limited funds.” 47 Fed. Reg. at 33,837-33,838. The proposed regulations would have eliminated “school health services” from the definition of “related services”; they would have changed the meaning of excluded “medical services” from “services provided by a licensed physician” to “services relating to the practice of medicine”; and they would have allowed school districts to place “reasonable limi- tations” on provision of related services, based inter alia on the “level, frequency, location, and duration of the services” and the qualifications of the service providers. 47 Fed. Reg. at 33,888. Illustrations of services that were meant to be ex- cluded by the changes included Iife-sustaining procedures that * * [mJust be administered by specially trained, li- censed health care professionals; or * * * [e)ntail a signifi- cant risk of illness or more than minimal injury to the child.” Id. at 33,846. In the course of explaining the proposed changes, the Secretary unequivocally confirmed the Department of Edu- cation’s longstanding interpretation of the current statute and regulation to rest on a bright-line distinction between services provided by a physician and those provided by non- physicians: “(t]he statute defines related services to exclude medical services except where they are for diagnostic or evaluation purposes. The existing regulations define medical services as services provided by a licensed physician.” 47 Fed. Reg. at 33,838. Members of Congress criticized the proposed regulations, and specifically targeted a few of the proposed changes, in- cluding the amendment to the “related services” regulation. See 128 Cong. Rec. 20,620 (1982) (statement of Rep. Biaggi); id. at 21,793 (statement of Rep. Bonker); see also H.R. Rep. No. 906, 97th Cong., 2d Sess. 4-5 (1982). On September 8, 1982, Congress enacted Section 305(b) of the Supplemental Appropriations Act, 1982, Pub. L. No. 97-257, 96 Stat. 818, 874, expressing the sense of Congress that the proposed regulations should not become effective and should not be transmitted to Congress while it was not in session. On November 3, 1982, the Secretary withdrew six of the most controversial changes, including the proposal to narrow the “related services” regulation. See 47 Fed. Reg. 49,871- 49,872 (1982); Oversight Hearings on Proposed Changes in Regulations for the Education for All Handicapped Chil- dren Act: Before the Subcomm. on Select Educ. of the House Comm. on Educ. & Labor, 97th Cong., 2d Sess. 122, 126-127, 175 (1982). The following year, Congress added a new Section 608 to the Education of the Handicapped Act, which states that the Secretary may not implement * * * any regulation prescribed pursuant to this chapter which would procedurally or substantively lessen the protections provided to handi- capped children under this chapter, as embodied in regulations in effect on July 20, 1983 (particularly as such protections relate to* * * related services * * *), except to the extent that such regulation reflects the 2 and unequivocal intent of the Congress in legisla- Education of the Handicapped Act Amendments of 1983, Pub. L. No. 98-199, § 6, 97 Stat. 1357, 1359 (codified as amended, 20 U.S.C. 1407(b)). That provision was enacted in direct response to the proposed, then withdrawn, 1982 regulatory changes. See 129 Cong. Rec. 33,316 (1983) (statement of Rep. Biaggi) (explaining that provision was reaction to Secretary’s 1982 proposals); see also H.R. Rep. No. 410, 98th Cong., Ist Sess. 21 (1983). 24 Thus, Section 608 constitutes a ratification of the Secre- tary's “related services” regulation, which includes school health services and excludes as medical services only services provided by a physician. It also reflects congres- sional disapproval of a multi-factor determination of “medical services” that would expand the exclusion to take into account the extent or nature of the services by excluding services provided by any “specially trained, licensed health care professionals” or services that involve “a significant risk of illness or more than minimal injury to the child.” 47 Fed. Reg. at 33,846. “Where, as here, ‘Congress has not just kept its silence by refusing to overturn the administrative construction, but has ratified it with positive legislation,’ we cannot but deem that construction virtually conclusive.” Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 846 (1986). Hence, in asking this Court to construe the “medical services” exclusion to depend on factors such as cost, petitioner is, in essence, attempting to obtain through the courts what Congress rejected. D. Petitioner's Cost-Based Arguments To Expand IDEA's “Medical Services” Exclusion Are Not Supported By The Statutory Structure And Are Inconsistent With The Intent Of Congress. Petitioner and its amicus devote significant portions of their briefs to describing the fiscal burden they claim they would be required to shoulder should the court of appeals’ judgment be affirmed. In doing so, they ignore steps Con- gress has taken to ensure that costs of “related services” for many disabled students are borne by other agencies. Congress has provided States with tools to ensure that lo- cal educational districts are not unfairly burdened with health care costs. In 1975, when the predecessor to IDEA was enacted, the Senate Committee Report on EAHCA ex- plained that, while Congress “has provided that the State education agency is to be the final responsible authority for 25 assuring that all handicapped children have available to them free appropriate public education, it does not intend that State and local educational agencies must be the sole providers of such services.” S. Rep. No. 168, 94th Cong., Ist. Sess. 22 (1975). In 1986, Congress took steps to facilitate the payment of expenses by sources other than educational agencies. Sec- tion 203 of the Education of the Handicapped Act Amend- ments of 1986, Pub. I. No. 99-457, 100 Stat. 1145, 1158-1159, entitled “Sharing of Costs of Free Appropriate Public Education,” declared that, although the statute provides that state educational agencies bear the responsibility for ensur- ing that IDEA’s requirements are carried out, that provision “shall not be construed to limit the responsibility of agencies other than educational agencies in a State from providing or paying for some or all of the costs of a free appropriate pub- lic education to be provided handicapped children in the State.” §203, 100 Stat. 1159 (codified as amended, 20 U.S.C. 1412(6)). Section 203 also required that States set forth policies and procedures for developing and im- plementing interagency agreements between the State educational agency and other appropriate State and local agencies to—(A) define the financial responsibility of each agency for providing handicapped children and youth with free appropriate public education, and (B) resolve interagency disputes, including procedures under which local educational agencies may initiate proceedings under the agreement in order to secure reimbursement from other agencies or otherwise implement the provisions of the agreement. 203, 100 Stat. 1159 (codified as amended, 20 U.S.C. 1413(a)(13)). In particular, Congress contemplated that child welfare funds and Medicaid would absorb part of the costs. Section 203 specified that the statute “shall not be construed to permit a State to reduce medical and other assistance 26 available or to alter eligibility under titles V [Maternal and Child Health Services Block Grant] and XIX [Medicaid) of the Social Security Act [42 U.S.C, 701 et seq., 1396 et seq.| with respect to the provision of a free appropriate public education.” § 203, 100 Stat. 1159 (codified at 20 U.S.C. 1413(e)).” Section 203 was enacted in response to the General Accounting Office’s (GAO) report in 1986 that some States had suecessfully established interagency agreements that recovered for school districts the costs of related services required by IDEA from Medicaid” and private insurers." See H.R. Rep. No. 860, 99th Cong., 2d Sess. 21 (1986). 12 Medicaid is a jointly funded federal-state program that provides health insurance to people, inter alia, who receive Aid to Families with Dependent Children or are disabled for purposes of the federal Supple- mental Security Income program. See 42 U.S.C. 1396-1396v. Approxi- mately 27% of all children with disabilities ages 1 to 17 receive Medicaid, and a significant additional number are eligible but unserved. See Nat'l Inst. on Disability and Rehabilitation Research, Disability Statistics Re- ports: Medical Expenditures for People with Disabilities in the United States, 1987 33, 34 (1996). Under Medicaid, each State is required to pro- vide Early and Periodic Screening, Diagnosis and Treatment (EPSDT) services for children under 21, which include any services covered by the federal Medicaid program, mandatory or optional, that are necessary to treat conditions identified through screening. Such services could include home health care, private duty nursing, or personal care services, see 42 U.S.C. 1396d(r) (incorporating services in 1396d(a)), all of which can include school health services. See Skubel v. Fuoroli, 113 F.3d 330 (2d Cir. 1997); Detsel v. Sullivan, 895 F.2d 58 (2d Cir. 1990). See generally Health Care Financing Admin., U.S. Dep't of Health & Human Servs., Medicaid and School Health: A Technical Assistance Guide (Aug. 1997). Respondent apparently is not currently income-eligible for Medicaid because the monetary fund established as a settlement of liability for his injury has not yet been exhausted. Tr. 598. 18 The GAO report noted that Connecticut had estimated that the State’s school districts could recover approximately $5-6 million per year from Medicaid alone. U.S. Gen. Accounting Office, Special Education: Financing Health and Educational Services for Handicapped Children 12 (July 1986). 4 While the scope of coverage varies considerably, many employers offer insurance plans that cover nursing and health aide services (although 27 In 1988, Congress took further action to facilitate the use of Medicaid funds for payment of services included in a stu- dent’s IEP under IDEA. Section 411(k)(13) of the Medicare Catastrophic Coverage Act of 1988, Pub. L. No. 360, 102 Stat. 683, 798, specified that nothing in the Medicaid statute should “be construed as prohibiting or restricting,” pay- ments “for medical assistance for covered services furnished to a child with a disability because such services are included in the child’s” IEP under IDEA. 102 Stat. 798 (codified at 42 U.S.C. 1396b(c)). Contrary to petitioner’s contention (Pet. Br. 17), Congress did not thereby indicate that the medical assistance paid for by Medicaid would be for services not covered by IDEA. The assumption underlying that legisla- tion was that some services qualify both as related services in IEPs and as services covered by Medicaid, and not that those categories are mutually exclusive as petitioner sug- gests. The legislative history explained: Federal Medicaid matching funds are available for the cost of health services, covered under a State’s Medicaid plan, that are furnished to a handicapped chile *, even though such services are included in the child’s in- dividualized education program * * While the State education agencies are financially responsible for educa- tional services, in the case of Medicaid-eligible handi- capped child, State Medicaid agencies remain responsi- ble for the ‘related services’ indentified [sie] in the child’s IEP if they are covered under the State’s Medicaid plan. H.R. Rep. No. 661, 100th Cong., 2d Sess. 268-269 (1988). with co-payments and other limitations) for their employees’ dependents. See 1 Task Force on Technology-Dependent Children, U.S. Dep't of Health & Human Servs., Fostering Home and Community-Based Care for Technology-Dependent Children, 136, 143-144 (Apr. 7, 1988). School districts may recover costs from the child’s insurance, so long as there is no “financial loss” to the child or his family. See 45 Fed. Reg. 86,390 (1980); Shook v. Gaston County Bd. of Educ., 882 F.2d 119 (4th Cir. 1989). 28 Despite those legislative amendments, by 1990 over half the States were still not using interagency agreements. See A. Katsiyannis, Provision of Related Services: State Prac- tices and the Issue of Eligibility Criteria, 24 J. Spec. Educ. 246, 249 (1990). A more recent report, based on results of a national survey of state special education finance systems, noted that, as of 1994-1995, “all but one of 42 reporting states used Medicaid as another source of special education reve- nue,” and over a quarter of the states reported that they used state mental health funds” or “private medical insur- ance” as sources of special education revenue. See T. B. Parrish et al., Center for Spec. Educ. Fin., State Special Education Finance Systems, 1994-95, at 29 (June 1997). Nonetheless, the report found that Iflunding sources like Medicaid clearly have the potential to offset a greater share of special education costs,” but are still being underutilized or underreported. Id. at 32. In 1997, Congress strengthened the coordination provi- sions in IDEA to provide that the State shall ensure that an interagency agreement or other mechanism for interagency coordination is in effect” and that the agreements must be in writing. 1997 Amendments, § 612(a)(12)(A) and (C), 111 Stat. 64-65, 66. Such agreements must provide that the “financial responsibility of each public agency * * * , in- cluding the State Medicaid agency and other public insurers of children with disabilities, shall precede the financial re- sponsibility of the local educational agency.” Id. at § 612(a)(12)(A)(i) and (B)ii), 111 Stat. 65, 66 (emphasis added). That subsection was “to reinforce two important principles: (1) that the State agency or [local educational agency] responsible for developing a child’s IEP can look to non-educational agencies, such as Medicaid, to pay for or provide those services they (the non-educational agencies) are otherwise responsible for; and (2) that the State agency or [local educational agency] remains responsible for ensuring that children receive all the services described in 29 their IEPs in a timely fashion, regardless of whether another agency will ultimately pay for the services.” H.R. Rep. No. 95, 105th Cong., Ist Sess. 92 (1997); S. Rep. No. 17, 105th Cong., Ist Sess. 12 (1997)." In addition to Medicaid, other federal and state programs are also available to pay for related services required by children with disabilities to benefit from special education in the regular classroom. For example, the Maternal and Child Health Block Grant program, 42 U.S.C. 701 et se., provides States with funds to provide direct services to children with special heath care needs. See Office of Technology Assess- ment, U.S. Congress, Technology-Dependent Children: Hos- pital v. Home Care: A Technical Memorandum 70-71 (May 1987). The Balanced Budget Act of 1997 created the State Children’s Héalth Insurance Program (CHIP), which will provide $48 billion over the next ten years for States to pro- vide health services to low-income children who do not have health insurance and are not eligible for Medicaid. See Pub. L. No. 105-33, Tit. IV, 111 Stat. 251, 552 (to be codified at 42 U.S.C. 1397 et seq.); see also Nat'l Inst. on Disability and Re- habilitation Research, Disability Statistics Reports: Medical Expenditures for People with Disabilities in the United States, 1987, at 32, 34 (1996) (7% of children with disabilities had no insurance and were not covered by Medicaid or any other government program). Moreover, the size of the financial burden that is placed on petitioner and other local school districts depends in large 15 See also 143 Cong. Rec. S400 (daily ed. May 12, 1997) (statement of Sen. Harkin) (“[I}n States that have voluntarily provided interagency supports, cost savings to [local education agencies] have been significant. For instance, the Chicago public schools receive[] $40 million in support for medically related services for students with disabilities, which has enabled the district to contain costs for related services and increased the access of poor children with disabilities to comprehensive health care services.”); id. at S4373 (daily ed. May 13, 1997) (statement of Sen. Murray); id. at S4407 (daily ed. May 14, 1997) (statement of Sen. Grassley). 30 part on their State’s choice of a special education financing system. IDEA places the ultimate responsibility on state educational agencies to ensure that IDEA’s requirements are carried out, and IDEA does not dictate how States struc- ture their funding of special education and related services. Different States have adopted a variety of financing systems that spread the costs in different ways. See Parrish, supra. Of particular significance here, States are increasingly mak- ing special provisions for exceptionally high-cost students in their financing systems. Jd. at 52. For example, under Vermont’s special education funding program, if a local district spends in excess of three times the base amount per pupil on a single student with a disability, the State provides an “extraordinary services reimbursement” that reimburses the district for 90% of the excess expenditures. Vermont also provides “intensive services reimbursment,” based on a district’s ability to pay, for expenditures not covered by federal funds, the state and locally funded block grant, and the extraordinary cost allocation. Id. at 90; see also D. L. Montgomery, Am. Insts. for Research, State Analysis Series, A Profile of Special Education Finance Reform in Vermont (Mar. 1995). Thus, States have the flexibility to alter their financing systems to control the size of the financial burden placed on any particular local educational agency by the provision of related services. CONCLUSION The judgment of the court of appeals should be affirmed. Respectfully submitted. AUGUST 1998 31 SETH P. WAXMAN Solicitor General BILL LANN LEE Acting Assistant Attorney General BARBARA D. UNDERWOOD Deputy Solicitor General BETH S. BRINKMANN Assistant to the Solicitor General DAVID K. FLYNN SETH M. GALANTER Attorneys APPENDIX 1. The Individuals with Disabilities Education Act, as codified in 1994 at 20 U.S.C. 1400 et geg., provided in relevant part: § 1400. Congressional statements and declarations (c) Purpose It is the purpose of this chapter to assure that all children with disabilities have available to them, within the time periods specified in section 1412(2)(B) of this title, a free appropriate public education which emphasizes special er ication and related services designed to meet their unique needs, to assure that the rights of children with disabilities and their parents or s are protected, to assist States and localities to provide for the education of all children with disabilities, and to assess and assure the effectiveness of efforts to educate children with disabilities. (la) § 1401. Definitions (a) As used in this chapter (16) The term “special education” means specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including— (A) instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (B) instruction in physical education. (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 identi- fication and assessment of disabling conditions in children. (18) The term “free appropriate public education” means 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, 3a (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the indivi- dualized education program required under section 1414(a)(5) of this title. * * * * * (20) The term “individualized education program” means a written statement for each child with a disability developed in any meeting by a representative of the local educational agency or an intermediate educational unit who shall be qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities, the teacher, the parents or guardian of such child, and, whenever appropriate, such child, which statement shall include— (A) a statement of the prevent levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) astatement of the needed transition services for students beginning no later than age 16 and annually thereafter (and, when determined appropriate for the individual, beginning at age 14 or younger), including, when appropriate, a statement of the interagency reponsibilities [sic] or linkages (or both) before the student leaves the school setting, Aan (E) the projected date for initiation and anticipated duration of such services, and (F) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. In the case where a participating agency, other than the educational agency, fails to provide agreed upon services, the educational agency shall reconvene the IEP team to identify alternative strategies to meet the transition objectives. (b) Lessening of procedural or substantive protec- tions as in effect on July 20, 1983, prohibited The Secretary may not implement, or publish in final form, any regulation prescribed pursuant to this chapter which would procedurally or substantively lessen the protections provided to children with disabilities under this chapter, as embodied in regulations in effect on July 20, 1983 (particularly as such protections relate to parental consent to initial evaluation or initial placement in special education, least restrictive environment, related services, timelines sie], attendance of evaluation personnel at individualized education program meetings, or qualifications of personnel), except to the extent that such regulation reflects the clear and unequivocal intent of the Congress in legislation. * 1412. Eligibility requirements In order to qualify for assistance under this subchapter in any fiscal year, a State shall demonstrate to the Secretary that the following conditions are met: (1) The State has in effect a policy that assures all children with disabilities the right to a free appropriate public education. * * * * * (5) The State has established (A) procedural safeguards as required by section 1415 of this title, (B) procedures to assure that, to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and that special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily,* * *. (6) The State educational agency shall be responsible for assuring that the requirements of this subchapter are carried out and that all educational programs for children with disabilities within the State, including all such programs administered by any other State or local agency, will be under the general supervision of the persons responsible for educational programs for children with disabilities in the State educational agency and shall meet 6a education standards of the State educational agency. This paragraph shall not be construed to limit the responsibility of agencies other than educational agencies in a State from providing or paying for some or all of the costs of a free appropriate public education to be provided children with disabilities in the State. § 1413. State plans (a) Requisite features Any State meeting the eligibility requirements set forth in section 1412 of this title and desiring to participate in the program under this subchapter shall submit to the Secretary, through its State educational agency, a State plan at such time, in such manner, and containing or accompanied by such information, as the Secretary deems necessary. Each such plan shall— a. ~~ - = 8 Ue ’@ (13) set forth policies and procedures for developing and implementing interagency agreements between the State educational agency and other appropriate State and local agencies to— (A) define the financial responsibility of each agency for providing children and youth with disabilities with free appropriate public education, and (B) resolve interagency disputes, including pro- cedures under which local educational agencies may initiate proceedings under the agreement in order to Ta secure reimbursement from other agencies or otherwise implement the provisions of the agreement, ~ * * a * (e) Prohibition on reduction of assistance This chapter shall not be construed to permit a State to reduce medical and other assistance available or to alter eligibility under titles V and XIX of the Social Security Act 42 U.S.C. 701 et seq., 1396 et seq.] with respect to the provision of a free appropriate public education for children with disabilities within the State § 1417. Administration (b) Rules and regulations In carrying out the provisions of this subchapter, the Secretary shall issue, not later than January 1, 1977, amend, and revoke such rules and regulations as may be necessary. No other less formal method of implementing such provisions is authorized. 8a 2. 34 C. F. R. 300.16 provides in relevant part: § 300.16 Related services. (a) As used in this part, the term “related services” means transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training. (b) The terms used in this definition are defined as follows: (4) “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. (11) “School health services” means services provided by a qualified school nurse or other qualified person. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0074%3A04. Public record. Not legal advice.