Amicus Curiae Brief — Cedar Rapids Community School Dist. v. Garret F.

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No. 96-1793

In the Supreme Court of the United States

OCTOBER TERM, 1997

CEDAR RAPIDS COMMUNITY SCHOOL DISTRICT,

PETITIONER

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

BETH S. BRINKMANN

Assistant to the Solicitor

General

DAVID K. FLYNN

SETH M. GALANTER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

—— —

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

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 “medic: services” exclusion is reason-

able, longstanding, and entitled to deference ..........

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)

(IID

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, 1178. 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. v Natural Resources Defense

Council, Inc, 467 U.S. 837 (1984) 16

City of Edmonds v. Oxford House, Inc., 514 US.

725 (1995) 15

Commodity Futures Trading Comm'n v. Schor,

478 U.S. 833 (1986) 24

Detsel v. Board of Educ. of Auburn, 687 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

US. 7 (1993) 13

Gebser v. Lago Vista Indep. Sch. Dist., 1188. Ct.

1989 (1998) 14

Good Samaritan Hosp. v. Shalala, 508 U.S. 402

(1993) 15

Herb Welding Inc. v. Gray, 470 U.S. 414 (19859 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 (1993) 15

Lee v. Andrews, 545 8.W.2d 238 (Tex. Civ. App.

1976) ... 14

Morton Community Unit Sch. Dist. No. 709 v.

J. M., No. 97-3962, 1998 WL 420898 (7th Cir. July

27, 1998) 18

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 (19889 15

Rust v. Sullivan, 500 U.S. 173 (1991) 15

School Bd. of Nassau County v. Arline, 480 U.S.

273 (1987) 15

Schweiker v. Gray Panthers, 453 U.S. 34 (18812 21

Shook v. Gaston County Bd. of Educ., 882 F 2d

119 (4th Cir. 1989) 27

Skubel v. Fuoroli, 113 F.3d 330 (2d Cir. 19977 26

Smith v. Robimson, 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) 8

Education of the Handicapped Act Amendments of

1983, Pub. L. No. 98-199, § 6, 97 Stat. 1357

Education of the Handicapped Act Amendments of

1986, Pub. L. No. 99-457, § 208, 100 Stat. 1145 25, 26

7, 21, 23,24

VI VII

Education of the Handicapped Act Amendments Medicare Coverage Act of 1988, Pub.

of 1990, Pub. L. No. 101-476, 104 Stat. 1108: L. No. 100-360, § 411(k)(13), 102 Stat. 683 (codified

§ 101(c), 104 Stat. 1108 10 at 42 U.S.C.1396b(c)) 27

§ 901(a)(1), 104 Stat. 1141 x Social Security Act:

§ 901(a)(3), 104 Stat. 1142 8 42 U.S.C. 701 et seq. (Maternal and Child Health

Education for All Handicapped Children Act of 1975, Services Block Grant) 29

Pub. L. No. 94-142, 89 Stat. 773 8. 12, 13. 24 42 U.S.C. 1396 et seq. (Medicaid) 26

Individuals with Disabilities Education Act, 20 U.S.C. 42 U.S.C. 1396d(a) 26

1400 et seq. 8. 7. 8 42 U.S. C. 1396d(r) 26

20 U.S.C. 1400(e) 3,8 Appropriations Act, 1982, Pub. L.

20 U.S.C. 1400(b)(9) 15 No. 97-257, 96 Stat. 818 23

20 U.S.C, 1401(a)(16) 9 28 U.S.C, 1367 6

20 U.S.C. 1401(a\(17) 8, 5, 7, 10, 11, 12, 18 Iowa Code Ann. (West 1997):

20 U.S.C. 1401(a)(18) 4,9 §§ 148.1-148.18 11

20 U.S.C. 1401(a)(20) 4 $§ 152.1-152.12 11

20 U. S. C. 1407 cb) 7, 23 34 C. F. R.:

20 U.S.C. 141201) 9 Section 300.13(b)(4) (1983) 17

20 U.S.C. 1412(5)(B) 4,9 Section 300.15 16

20 U.S.C, 1412(6) 25 Section 300.16 passim

20 U.S.C, 1413(a)(13) 25 Section 300.16(a) 16, 17

20 U.S.C. 1413(e) 15 Section 300.16(b)(4) 17

20 U.S.C, 1413(e) 26 Section 300,16(b)(11) 16

20 —— 1414(a)(5) 4 45 C.F.R. 121a.13 (1978) 16

20 U.S.C. 1414(e)(4) 6 :

20 U.S.C. 1416(a) 15 —

20 U. S. C. 1417 cb 16, 20 S. Chaikind et al., What Do We Know About

20 U.S.C, 1420 15 the Costs of Special Education? A Selected Review,

Individuals with Disabilities Education Act Amend- 26 J. Spec. Educ. 344 (1993) 14

ments of 1997, Pub. L. No. 105-17, 111 Stat. 37 8-9 121 Cong. Rec. 23,707 (1975) 12

§ 101, 111 Stat. 45 10 128 Cong. Rec. (1982):

§ 612(a)(12)(A), 111 Stat. 64 28 p. 20,620 22

§ 612(a)(12 Ai), 111 Stat. 65 28 p. 21,798 23

§ 612(a)(12B\(ii), 111 Stat. 66 28 129 Cong. Rec. 33,316 (1983) 23

§ 612(a)(12\(C), 111 Stat. 66 28 143 Cong. Rec. 84300 (daily ed. May 12, 1997) 29

143 Cong. Rec. $4373 (daily ed. May 13, 1997) 29

148 Cong. Rec. 84407 (daily ed. May 14. 1997) 29

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 (1978) ..........

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 Env't of the House

Comm. on Energy & Commerce, 99th Cong.,

2d Sess. (1986) pasion

42 Fed. Reg. 42,479 (1977)

45 Fed. Reg. 86,390 (1980)

47 Fed. Reg. (1982):

pp. 33,836-33,860

pp. 33,837-33, 888 ......

p. 33,846

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) vss

H.R. Rep. No. 906, 97th Cong., 2d Sess. (1982) ......cccsvsse

H.R. Rep. No. 410, 98th Cong., Ist Sess. (1988) .

H.R. Rep. No. 860, 99th Cong., 2d Sess. (1986) .....cccvsvsees

H.R. Rep. No. 661, 100th Cong., 2d Sess. (1988) .......csss0»

H.R. Rep. No. 95, 105th Cong., Ist Sess. (1997) sce

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)

12-13

18, 19

Miscellaneous—Continued:

Letter to Anonymous, 25 Ind. Disab. Educ. L. Rep.

581 (Nov. 13, 1996)

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)

D. L. Montgomery, Am. Insts. for Research,

State Analysis Series, A Profile of Special

Education Finance Reform in Vermont

(Mar. 1995)

Nat I Inst. on Disability and Rehabilitation

Research, Disability Statistics Reports: Medical

Expenditures for People with Disabilities in the

United States, 1987 (1996)

Office of Technology Asssessment, U.S. Congress,

Technology-Dependent Children: Hospital 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)

S. Rep. No. 17, 105th Cong., Ist Sess. (1997)

19, 20

17-18

X In the Supreme Court of the United States

OCTOBER TERM, 1997

Miscellaneous—Continned: Page —

1 Task Force on Technology-Dependent Children, No. 96-1793

Home and Community-Based Care for Technology- R 1 Ot, DISTRICT,

Dependent Children (1988) 27

U.S. Gen. Accounting Office, Special Education: U.

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

Iowa 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)

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. Jd. 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-

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). IRjelated 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-

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. Jd. 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 lowa 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.

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.

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(aX18) and (20), 1412(5\B), 1414(aX5); Honig v. Doe, 484 U.S. 305, 311

(1988); Rowley, 458 U.S. at 181-182, 202.

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. Id. 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. /d. 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.

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 58a. 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. Id. at 68a.

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.” Id. 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 15a.

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 required to provide. Jd. 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.” Ibid. While acknowl-

edging that its reading of Tatro conflicts with that of other

circuits, it deelineſ d] to seize dicta in Tatro to go beyond the

physician/non-physician test which the Supreme Court sets

forth therein.” Id. at 7a.

SUMMARY OF ARGUMENT

The Individuals with Disabilities Education Act (IDEA),

20 U.S.C. 1400 et seq., requires that States reeriving 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

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 Amendments 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),.-cial 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.

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

—

due 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, eg. 1990 Amendments, § 101(c), 104 Stat. 11038

(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.

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 Env’t 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).

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(a)(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. Rec. 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, 1978-1974: Hearings

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 occupational therapists, speech

therapists, psychologists, social workers and other appropri-

ately trained personnel. 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. 332, 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, 344-845 (1993).° The text and

on S. 6 Before the Subcomm. on th. andicapped of the Senate Comm. on

Labor & Public Welfare, 98d Cong., 1st 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

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

Iowa, 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.

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. 278, 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. 1413(c), 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

also entrusted the Secretary with the authority to issue

“such rules and regulations as may be necessary,” to carry

out the requirements of IDEA. 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. Inc. 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 found 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-

10 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.

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, Iplresumably 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 the 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 “[ilf

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-

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 (e. g., a psychiatric social worker,

etc.). 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-

11 See also Letter to Jacobs, Educ. Handicap. L. Rep. 211:54 2

1978) (explaining that an optometrist, i.e., a non-physician, may pro

“diagnostic services” with IDEA funds, just as an audiologist may, but

specifying that he is not qualified to provide “medical diagnostic sorviees,

because (among other things) they do not meet the definition of ‘medical

services’ * * * (i.e. ‘medical services’ means services provided by a

licensed physician”).

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, 532 (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, “[ilf 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.” Jbid.

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

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, 393

(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.Y. 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

“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., Inc., 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.

Nu “8-199, 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 33,827-33,838.

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 33,838. Illustrations of services that were meant to be ex-

cluded by the changes included “{]}ife-sustaining procedures

that * * * [must 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 HR. 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

— 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).

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

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. L. 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

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 successfully 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).

14 While the scope of coverage varies considerably, many employers

offer insurance plans that cover nursing and health aide services (although

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 : ervices

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 child * * *,

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 [sic] 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. 1289).

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 “{o]ver 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 seq., 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 Health 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. $4300 (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).

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. Id. 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. Jd. 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

SETH P. WAXMAN

Solicitor General

BILL LANN LEE

Acting Assistant Attorney

General as

BARBARA D. UNDERWOOD

Deputy Solicitor G }

BETH S. BRINKMANN

Assistant to the Solicitor

General

DAVID K. FLYNN

SETH M. GALANTER

Attorneys

1. The Individuals with Disabilities Education Act, as

codified in 1994 at 20 U.S.C. 1400 et seq., provided in relevant

part:

§ 1400. Congressional statements and declarations

* * * * *

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

education and related services designed to meet their unique

needs, to assure that the rights of children with disabilities

and their parents or guardians 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)

91401. 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,

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 present levels of educational

performance of such child,

(B) astatement of annual goals, including short-term

instructional objectives,

to be provided to such child, and the extent to which

such child will be able to participate in regular

educational programs,

(D) a statement 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 [sie] or linkages (or both) before the

student leaves the school setting,

(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 personne),

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

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—

(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

secure reimbursement from other agencies or otherwise

implement the provisions of the agreement;

(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.

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.

* * * * *

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.