March 1999
by
Lewis Golinker, Esq.
Director, Assistive Technology Law Center
202 East State Street, Suite 507
Ithaca, New York 14850
607-277-7286(v); 607-277-5239(fax)
lgolinker@aol.com (e-mail)
Introduction
In Cedar Rapids Community School District v. Garret F., the Supreme Court affirmed the right of all students with disabilities to attend school when they are medically able to do so, regardless of the nature or extent of the in-school health-related services they may require, as long as those services are not required to be provided by a physician. Garret F. brings to closure a 15 year old dispute: throughout this period, courts reviewing the IDEA "medical services exclusion," the "school health services" IDEA regulation, and the Supreme Court's decision in Irving Indep. Sch. Dist. v. Tatro, could not agree on the scope of schools' duties to provide in school nursing and other health related services.
In Garret F., the Supreme Court, 7-2, held that schools are required by the IDEA to provide students with nursing and/or other health related services when the students: (1) require the health related services during the school day, i.e., they would not be able to attend school absent the provision of these services; and (2) the required services can be provided by a school nurse or other trained person, i.e., they do not have to be provided by a physician.
The issue resolved in Garret F. is of special significance to this writer. In the mid-1980's, I served as part of the legal team that unsuccessfully represented Melissa Detsel in the first case, post-Tatro, that interpreted the "school health services" provision, and that resulted in the establishment of the so-called "nature and extent" test. Detsel v. Board of Education. While the hole created by this "test" in the IDEA's "basic floor of opportunity" was filled for Melissa and other students who were Medicaid eligible as a result of Detsel v. Sullivan, Pullen v. Cuomo, and Skubel v. Furouli, Medicaid is not a complete solution. Garret F. clearly illustrates that not every child who requires in-school health and/or nursing services is Medicaid eligible. As long as the Detsel-I decision commanded any respect, all non-Medicaid eligible students who require in-school health and/or nursing services risked being forced to accept home instruction for no reason other than that his or her school does not want to provide the nursing or other health services the student needs.
In this writer's opinion, Detsel-I was wrongly decided and the controversy that has ever-since surrounded the issue of school health services has been distorted grossly out of proportion. The number of children who are affected is small; the practical challenges in meeting their needs are not substantial; and neither are the costs required to do so. Moreover, as the Supreme Court ultimately decided, the issues generated in cases involving in-school health and/or nursing services had nothing to do with differing views about what was best for the student, but what was cheapest for the school district. These cases arose solely because of money, which the Supreme Court rejected as a sole basis for making determinations of how the IDEA related services provisions should be interpreted.
Thus, while Garret F. addresses an issue that will affect only a relatively few students, it also serves two very important functions for the IDEA: first, it repairs a wound in the fabric of the IDEA, once again allowing it to reach and benefit all students with disabilities, without exception; and second, it makes clear that whatever the fiscal impacts of educating students with disabilities, cost implications alone will not be justification to deny a Free Appropriate Public Education.
Tatro
The origin of the issue resolved in Garret F. can be traced back to Irving Indep. School District v. Tatro, the Supreme Court's first review of the IDEA's "related services" provision.
At issue in Tatro was whether "clean intermittent catheterization" (CIC), a procedure by which a school nurse aided an elementary school age child with spina bifida to empty her bladder, was a "school health service," i.e., a "related service," and thereby required to be provided by the local school district, or a "medical service" provided for other than diagnostic and evaluation purposes, and thereby beyond the school's duty under the statute. To answer this question, the Court established a 2 part test: first, was the procedure or service a "supportive service" necessary to be provided to enable the student to benefit from his or her special education? If so, then the second part of the inquiry was whether the required procedure or service was excluded as a "medical service."
As to the first part of this inquiry, CIC was obviously a supportive service: without assistance with CIC, the child would not be able to attend an in-school educational program. The Court observed: "Services like CIC that permit a child to remain at school during the day are no less related to the effort to educate than are services that enable the child to reach, enter or exit the school."
The Court also held that CIC was not an excluded "medical service." To reach this conclusion, the Court examined, accepted, and then applied the regulation that defined "related services" to include "school health services." This phrase is further defined as: "services provided by a qualified school nurse or other qualified person."
The Court concluded that this regulation was a reasonable interpretation of the statute, and was therefore entitled to legislative effect. Because CIC was a procedure that could be provided by a school nurse, trained layperson, and ultimately by the child herself, it qualified as a related "school health service," and the school district was obligated to provide it.
In its review of the reasonableness of the regulation, the Court inferred the reasoning behind the statutory "medical services" exclusion, and the regulatory inclusion of health services provided by school nurses or other trained personnel. The Court stated that one possible rationale was that Congress may have intended to "spare schools from an obligation to provide a service that might well prove unduly expensive and beyond the range of their competence." Excluding a service or procedure requiring the services of a physician satisfies that goal, but excluding a service or procedure requiring the services of a school nurse, the Court held, did not. School nurses were part of schools' staffs before the IDEA was enacted, and the Court found that CIC was not materially different than the types of nursing services that have "routinely been provided to the non-handicapped."
Although this rationale was sufficient to resolve the issue presented in Tatro, it proved insufficient when schools were asked to provide in-school health services to children with other, and/or greater health services needs. Specifically, a few school districts looked to the Supreme Court's use of the phrases "unduly expensive," "beyond their competence," and "services routinely provided to the non-handicapped" as potential boundaries around schools' obligations to provide nursing and other in-school health services.
Detsel-I
Detsel v. Board of Education, was the first case, after Tatro, in which schools attempted to limit the reach of the "school health services" regulation. Melissa Detsel, an Auburn, New York child, had multiple congenital disabilities which required ongoing services. She breathed with aid of a ventilator, which was attached through a tracheostomy. That opening had to be suctioned periodically to prevent clogging. Melissa also required periodic administration of medications, someone to monitor her vital signs, to provide a lung-clearing procedure known as P,D,& C, and to be prepared to perform emergency procedures, if necessary. These needs could be met by a licensed practical nurse (LPN), who had to be with Melissa on a continuous basis.
Melissa's impairments were clearly more severe, and her needs for in-school health services more numerous and complex than those of Amber Tatro.
The question of whether Melissa's nursing needs had to be met by the local school district was raised even before she entered school. Prior to the start of kindergarten, local school officials met with Melissa and her mother and agreed to provide in-school nursing for Melissa's initial year in school. During that period, however, Melissa's mother and advocates were to search for alternate sources of funding for Melissa's nurses.
At year's end, no alternate source of funding was identified. Although Melissa was eligible for New York Medicaid, that program had refused to allow Medicaid supplied nurses to provide services outside the recipient's home. Thus, the Medicaid-provided nurse was unavailable to meet Melissa's needs in school.
Local school officials then stated they would continue to provide nursing services to Melissa only if ordered to do so by the New York State Education Department. In response, the IDEA (then EHA) due process procedures were invoked. In New York, a two-level due-process procedure exists. At the initial level of review, an impartial hearing officer ruled in favor of Melissa, concluding that her nursing services needs were school health services. The school district then pursued the second step of the administrative appeal process, at which the New York State Education Department Commissioner ruled that Melissa's nursing services were excludable as a medical service, because they were continuous, complex, and non-traditional nursing services. According to the Commissioner's decision, Tatro could be distinguished because the nature and extent of her nursing services needs were periodic, simple, and akin to the traditional services provided by school nurses.
From the Commissioner's perspective, Tatro should be viewed as being fact-dependent, while Melissa's advocates stated that Tatro stood for the inclusion of school nursing as a related service. Of course serving the needs of students with disabilities will be different. The students themselves are different -- those differences are what made the EHA/IDEA necessary -- thus, the amount of services may be greater; the specific procedures may be complex; and there may be no relation between the specific procedures needed to what school nurses traditionally provided, none of this was important. Children like Melissa could, and therefore, should be educated in school.
For Melissa Detsel at least, the ability to be educated in school was assured, at least temporarily, notwithstanding the Commissioner's decision. Because the Auburn school district agreed to provide nursing services during Melissa's Kindergarten year, she relied on the EHA/IDEA "stay put" provisions while all her appeals were pursued. Thus, she was able to continue receiving in-school nursing services until all her appeal rights were exhausted.
Review of the Commissioner's decision was sought in the U.S. District Court for the Northern District of New York. The District Court affirmed the Commissioner's decision. It held that the determination whether a student with disabilities needed school health services or medical services had to be based on the "nature and extent" of the procedures being sought. Factors such as the cost, complexity and time required to provide and perform those procedures would all be considered. Applying this "test" to Melissa's nursing needs, the District Court held that her services were "medical" and therefore beyond the duty of the school district to provide.
The District Court decision did not explain why any of these factors had been selected, i.e., why or how a procedure becomes "medical" simply because it is provided more often; is provided in combination with some other procedure; or may require more nursing or other technical skill on the part of the provider? Even more significant is the omission of the standard against which these factors were to be weighed: when and where is the line that divides health and medical services? Absent that dividing point, the "nature and extent" test was inherently subjective, and was comparable to the oft-quoted comment about pornography: "I can't define it, but I know it when I see it."
While not answering any of the "hard" questions, the District Court answered all of the obvious ones. It was easy to distinguish Melissa Detsel's needs from those of Amber Tatro: Detsel's needs were continuous while Tatro's were periodic; Detsel required multiple services, while Tatro required only one; Detsel's required a high degree of skill and might be needed to address life-threatening complications, while Tatro's required few skills and ultimately were expected to be performed by the child independently. Based on these differences, but without ever stating the statutory significance of these differences, the District Court concluded that Detsel's services were "medical," and thus beyond the obligations of the local school district.
In a per curiam opinion, the Second Circuit affirmed, and the Supreme Court denied certiorari.
From Detsel-I to Garret F.
The total subjectivity of the "nature and extent" test as explained in Detsel-I, provided no guidance to help parents, schools or other courts to answer the question of which needs constituted school health services and which ones were medical services. But the "nature and extent" test was not the only perspective that parents and schools could apply: there also was the "effect" of what was at issue. If schools provided in-school health services they would allow school integration for a student with health care needs, but not necessarily any other disabilities. Or, they could forcibly exclude a student and require education to be provided through the limited and isolated means of home instruction.
In this writer's view, the "effects" on the student has been the single most significant factor used to determine whether in-school health and/or nursing services are provided. Where schools put children first, the needs of students with health care needs have been addressed. In places where other interests were predominant, whether it be costs of special education, the personality of the IEP committee chairperson, or the laziness or fear of the nursing staff, disputes arose.
There never has been any survey, to this writer's knowledge, of how those choices were made, but there are indicators to support the conclusion that the needs of the students were being met, i.e., that the Anature and extent@ test was always the minority view. Most telling: in total, there were fewer than 2 dozen health services cases that reached written decision in the 12 years from Detsel-I to Garret F. Although there are many reasons why due process and court appeals are not pursued, on this issue, this writer is willing to assume that this exceedingly small number is a testament to the overwhelming professionalism and commitment of school district administrators and staff throughout the country. For these students, the stakes of education in school vs. home instruction are too high to expect parents simply to accept schools' refusal to provide in-school services without a fight.
A detailed review of the cases in the Detsel-I to Garret F. period is beyond the scope of this article. However, two points are worth noting:
(1) the "nature and extent" test was not universally accepted by the courts reviewing school health services disputes. Indeed, by the time Garret F. was decided by the Supreme Court, there was an almost even number of decisions accepting and rejecting the Detsel-I test. Those that rejected the test, viewed Tatro as focusing on the provider of the services, i.e., whether the services needed by the student must be provided by a physician, or could be provided by a school nurse or other trained individual. This alternative reading of Tatro came to be known as the "bright line," or "physician/non-physician" test.
As noted above, the U.S. Court of Appeals for the Second Circuit adopted the "nature and extent" test, as did the Sixth Circuit, and the Ninth Circuit. By contrast, the U.S. Court of Appeals for the Eighth Circuit, in Garret F., adopted the "bright line" test. It was this split among the circuits that the Supreme Court resolved in Garret F.
(2) the second point to be made about these cases is that both the "nature and extent" test and the "bright line" test were "outcome determinative," meaning that once a court stated the nature and extent test would be applied, the school won, every time. Likewise, in all bright line decisions, the student won.
Garret F.
The Supreme Court accepted Garret F. for review to resolve the "split of the circuits."
The Court's decision, issued March 3, 1999, had little problem resolving that split: Garret F. is very short and is written in a very straightforward manner.
The Garret F. decision views the issue as having been completely addressed in Tatro. The earlier case held that the addition of "school health services," defined as "services of a qualified school nurse or other qualified person," to the scope of the statute's "related services@ provision, was a reasonable interpretation of the statute. The Court in Garret F. stated that acceptance of school health/nursing services in Tatro was based on the distinction between services or procedures that must be provided by a physician, and those that could be provided by nurses or other staff. The Court concluded Congress did not want to require schools to provide the former, but that the latter were reasonably included as a related service.
Whatever its imperfections, a rule that limits the medical services exemption to physician services is unquestionably a reasonable and generally workable interpretation of the statute. Absent an elaboration of the statutory terms plainly more convincing than that which we reviewed in Tatro, there is no good reason to depart from settled law.
By contrast, as to the lower courts' invention of the "nature and extent" test, the Court in Garret F. stated:
The District's multi-factor test is not supported by any recognized source of legal authority. The proposed factors can be found in neither the text of the statue nor the regulations that we upheld in Tatro.
The Court in Garret F. also attacked the "nature and extent" test on common sense grounds:
. . . the District offers no explanation why these characteristics make one service any more 'medical' than another. The continuous character of certain services associated with Garret's ventilator dependency has no apparent relationship to 'medical' services, much less a relationship of equivalence. Continuous services may be more costly and may require additional school personnel, but they are not thereby more 'medical.'
Moreover, as to the mention in Tatro of the cost of the services and the competence of school staff to perform them, both of which became "elements" of the "nature and extent" test, the Court in Garret F. stated:
We referenced the likely cost of the services and the competence of school staff as justifications for drawing the line between physicians and other services, 468 U.S. at 892-894, but our endorsement of that line was unmistakable.
The Supreme Court in Garret F. saw the "nature and extent" test as nothing more than a cost-based test, and rejected it on these grounds as well.
Through its multi-factor test, the District seeks to establish a kind of undue-burden exemption primarily based on the cost of the requested services. . . .
* * * * * *
The District may have legitimate financial concerns, but our role in this dispute is to interpret existing law. Defining 'related services' in a manner that accommodates the cost concerns Congress may have had, . . . is altogether different from using cost itself as the definition. Given that ' 1401(a)(17) does not employ cost in its definition of 'related services' or excluded 'medical services,' accepting the District's cost-based standard as the sole test for determining the scope of the provision would require us to engage in judicial lawmaking without any guidance from Congress.
Finally, the Supreme Court addressed the personal nature of the case. In its statement of the facts, the Court described Garret as a "friendly, creative and intelligent young man." He was injured in a motorcycle accident, at age 4, while riding with his father. He has normal cognitive abilities, can speak, attends regular classes in a typical school program, and succeeds academically. The only thing that makes Garret atypical is that he breathes with the assistance of a ventilator. Although the decision never says so expressly, this writer senses the Court was asking why this dispute ever arose: why wouldn't every teacher want kids like Garret in their classrooms? On this point, the Court stated:
This case is about whether meaningful access to the public schools will be assured, not the level of education that a school must provide once access is attained. It is undisputed that the services at issue must be provided if Garret is to remain in school. Under the statute, our precedent, and the purposes of the IDEA, the District must fund such 'related services' in order to help guarantee that students like Garret are integrated into the public schools.
Conclusion
Garret F. accomplishes what the "nature and extent" test never could have: it resolves the question of how to interpret the school health services provision, and does so in a way that eliminates the expectation of future litigation. In our system of government, the Supreme Court has set the national standard of conduct: no longer will access to school by students with health care needs be governed by zip code. Rather, for all such students, if services must be performed by a physician, they are not required to be provided. If they can be performed by a nurse or other trained person, they must be provided.
Garret F. brings students with health needs into the same status as all other children, with or without disabilities. For all other children, the presumption was that they would be in school each day, and would be at home only for excused absences, such as illness. For students with health care needs, the same presumption now applies. As long as they are medically able to go to school, a decision that rests with the student's parents and physician, school attendance is expected. To the extent in-school health services are needed, they must be provided.
As a legal matter, the Supreme Court's reference in its concluding statement to the purposes of the IDEA deserves some comment. Although school staff often forgets, the IDEA was enacted in 1975 not to provide money to schools because of the additional financial "burden" of educating students with disabilities, but for another purpose entirely: to provide a means for schools to establish they were meeting their constitutional obligations to students with disabilities. The IDEA was enacted after numerous lawsuits were filed against school districts, alleging a violation of the Equal Protection Clause of the Fourteenth Amendment. As a matter of constitutional principle, schools are obligated to provide an appropriate education to all students, without a cent of federal financial assistance.
Had the Supreme Court ruled that the IDEA does not require in-school educational opportunities for students like Garret, a new round of Constitution-based litigation would have followed. It would have required the very litigation the IDEA was intended to render unnecessary. Schools would have been asked to establish a rational basis for not educating health-impaired students, and to explain, inter alia, the following incongruities:
++ providing rehabilitation services therapies often by persons who hold Masters degrees, while refusing to provide nursing services often by an LPN, which requires only an "associate's degree," an R.N., which is a lesser degree than a bachelor of arts or sciences, or merely by a specially trained lay-person;
++ hiring special education teachers and other services providers when students' needs demand them, but not a school nurse for a student with health care needs;
++ creating staff development plans and initiatives for teachers and other services providers, while not requiring school nurses to undertake similar efforts geared to having their skills match the needs of students with health care needs;
++ providing 1:1 aides for students with a wide range of disabilities, but refusing to provide 1:1 nurses or other staff to meet students= health care needs;
++ providing residential placements at $ 100,000 per year or more in some instances, and other services that may be equal to or greater than the services required by students with health care needs, but refusing to expend those sums on health care services.
In this writer's view, no rational justification exists for these distinctions, and schools would have lost. Indeed, by focusing on the purposes of the IDEA, the Supreme Court's decision in Garret F. makes this type of litigation, or any further litigation regarding health-impaired students unnecessary. And that is the best outcome possible.
In my clearly not unbiased opinion, the greatest dis-service created by the Detsel-I's invention of the "nature and extent" test is that it forced litigation between students' families and schools. Granted, there were only a few such disputes, but they should not have occurred at all. However, absent any objective criteria to apply, neither schools nor families had any basis to resolve differences that arose regarding provision of in-school health services, thus guaranteeing that inconsistent decisions would be made from district to district, and that the courts would have to play a significant role as final arbiters of these questions.
But "see you in court" is not a desired communication in the context of educating students with disabilities. And, because the courts had no more tools available than did the parents or districts, there was no way for the courts to effectively resolve inconsistencies. That the "nature and extent" test was uniformly outcome determinative: that it was applied meant the student lost, was proof of Courts' unwillingness or inability to craft any objective guideposts using this test.
Ultimately, the application of the "nature and extent" test created a lose-lose proposition for anyone it affected. Remember: every student subject to this test has the medical clearance to attend school. No student required placement in any other setting. Thus, if the test was applied and no appeal followed, the result upholds no principle, only the great disparity of power and resources between the school district and the family.
And even when families refuse to acquiesce to schools' opposition to providing necessary in-school health services, a court challenge is built upon a foundation of broken school-family bonds -- for the very students for whom strong communication and trust between home and school is essential. Due process hearings and litigation provide opportunities for hardening of positions, increasing the real costs of the problem, and increasing the anxiety families must experience as they must contemplate the reordering of their lives if schools prevail.
Viewed from this perspective, and I believe this is the most appropriate perspective from which to view this issue, Garret F. is a phenomenal decision. The Supreme Court told school districts, in no uncertain terms, that these are students, not problems or costs; that the schools' mission under the IDEA is to integrate students, not segregate them; and that the creativity of the schools should be directed to challenging the students and preparing them for the future, not crafting "tests" and excuses to keep students from being educated at all.
Finally, Garret F. can be seen as rendering moot the Medicaid decisions in Detsel-II, Pullen, and Skubel. Parents of students who are Medicaid eligible no longer need to rely on those protections to assure their child will be educated in school. Indeed, because Medicaid no longer has to provide those nurses, all families whose children are Medicaid eligible and are in need of in-school health services should carefully analyze how their children's needs can be most delivered in the most advantageous manner possible.
For example, Medicaid eligible students may now have some bargaining power with their schools to obtain additional services. If the state does not include reimbursement for nursing services as part of its "Medicaid in the Public Schools" program, or if the school does not participate, the family can tell the schools to provide additional services or the family will discontinue their Medicaid nursing services and insist that the school provide all that is required.
Alternately, in states and school districts where there is Medicaid in the Public Schools reimbursement available for nursing services, families may want to assess whether they want to take the equivalent nursing hours for time at home, and insist that the schools not bill Medicaid for those hours. In some states there is a limit on the total number of hours of nursing care that is available, and by forcing the school to provide nurses under the IDEA, and not Medicaid, it frees up time for additional care in non-school settings.
Lewis Golinker
Endnote
I wish to acknowledge the ongoing contributions of Alison Nodvin Barkoff, a third year student at the Emory University Law School, whose research and writing about this subject has been of invaluable assistance to me in preparation of this article, and of far greater importance, to all the attorneys working on the student's behalf in Garret F.