Medical Services: The Disputed Related Service

Journal of Special Education, Wntr, 2000, by Larry Bartlett

The Supreme Court agreed for a second time to review a lower court decision based on legal questions regarding the medical and health services components of related services required under IDEA, and has recently rendered a decision. This article traces the legal history behind the issue presented before the Court, discusses the decision, and discusses the likely educational implications of its decision.

The presence of children with health-related disabilities in society and in the classroom has greatly increased over the last few decades as medical advances and reduced mortality have progressed (Koenning, et al., 1995; Tyler & Colson, 1994). The resulting integration of children's health needs into educational programming has become imperative for many children requiring technical medical procedures while in a school environment. Without assistance with their health needs while in the educational setting, many children with disabilities would be forced to return to isolated and segregated settings for their educational programs. It is not surprising, then, that for the second time in the two-decade existence of the Individuals With Disabilities Education Act (IDEA; formerly the Education for All Handicapped Children Act, P.L. 94-142), the U.S. Supreme Court has heard and reviewed legal issues regarding medical and health services provided as related services to children receiving special education. The first Court ruling (Irving Independent School District v. Tatro, 1984) did not resolve the legal issues, as many persons had thought it would. Two distinct lines of case law (court interpretations) subsequently developed that resulted in inconsistent approaches in analyzing the issues associated with medical services in the public school setting (Rapport, 1996; Turnbull & Turnbull, 1998). One line of court rulings took the position that the question of a school's responsibility for provision of nondiagnostic health and medical services is strictly dependent upon whether the services of a physician are required. The other attempted to implement a balancing approach of determining a level of fairness in the competing interests of child and school when issues of expense and medical complexity are present. It was largely the dual issues of expense and medical complexity that motivated schools to argue for the latter position.

The purpose of this article is to present the legal issues surrounding the provision of medical services in the public school setting for children entitled to special education. It will first discuss the underlying legal foundation of the medical services question and the Supreme Court's first attempt at resolution of the issue. Then it will discuss separately the two lines of inconsistent court decisions that arose out of the Supreme Court's initial decision and that led to the Court's second undertaking to clarify the legal requirements of related services in the medical area. Finally, it will discuss the second Supreme Court ruling on the issue rendered March 3, 1999. The concluding portion of this article will discuss the various implications the second Supreme Court decision will likely have for the provision of special education and related services in America's schools.

The Foundation of the Issue

From its beginnings, IDEA has required that states receiving federal financial assistance for special education programs must provide a "free appropriate public education" (FAPE) to children with disabilities who qualify as needing special education. A FAPE requires the provision of both special education and related services "as may be required to assist a child with disabilities to benefit from special education" (Individuals with Disabilities Education Act, 20 USCA [sections] 1401 (8), (22), 1994). The phrase "related services" is further clarified by Department of Education regulations, which provide that related services include "school health services" and "medical services" (Assistance to States for the Education of Children with Disabilities, 34 C.F.R. [sections] 300.16, 1998). Medical services are limited to "services provided by a licensed physician to determine a child's medically related disability that results in a child's need for special education and related services" (Assistance to States for the Education of Children with Disabilities, 34 C.F.R. [sections] 300.16(a)(4), 1998), and do not include treatment by a physician. The phrase "school health services" has no obvious limitations and includes "services provided by a qualified school nurse or other qualified person" (Assistance to States for the Education of Children with Disabilities, 34 C.F.R. [sections] 300.16(a)(11), 1998). It is within these general understandings of law and the obvious budgetary constraints of public schools that we find the origin of the legal issue of the provision of school health services to children with disabilities in the public school setting.

The first Supreme Court decision on the interpretation of the terms of special education law, Board of Education v. Rowley (1982), indirectly involved a related services issue of providing a sign language interpreter for a student with a hearing impairment. The two primary legal issues before the Court were the meaning of the term "appropriate" as part of FAPE and the role courts should play in the determination of "appropriate" educational programming. The Court concluded that an appropriate program is one that provides "access to specialized instruction and related services which are individually designed to provide educational benefit to the handicapped child" (Board of Education v. Rowley, 1982, p. 201), and that the determination of appropriate educational programming was to be left to educators, in cooperation with parents, and not to the courts. Little attention was given specifically to the student's related services. The Court said that the student was receiving "substantial" special instruction and related services and was succeeding in the regular classroom without a sign language interpreter. The Court concluded the student was being provided an appropriate educational program as determined by the educators.

At the time of the Rowley decision several other court cases being litigated more directly involved related services in the medical arena. One example was Department of Education v. Katherine D. (1984), which involved a public school's refusal to provide at-school education for a child with cystic fibrosis who had a tracheostomy tube to facilitate breathing and expel mucus secretions from her lungs. School officials determined that the student could not be provided the needed tracheostomy tube supervision services at school and proposed a homebound program consisting of speech therapy and parent counseling, but no academic services. The court ruled that by refusing to provide tracheostomy tube supervision, the school had deprived the student of FAPE. The school was expressly required to provide supervision of the care of the tracheostomy tube while the girl was at school because such services could be provided by a "school nurse or other qualified person" and fell within the "school health services" definition of a "related service" (Department of Education v. Katherine D., 1984, p. 815).

Another example of related services of a medical nature was that of clean intermittent catheterization (CIC) being litigated in Texas and elsewhere. The Texas situation was eventually reviewed by the Supreme Court in Irving Independent School District v. Tatro (1984). The facts in this case involved Amber Tatro, an 8-year-old girl born with spina bifida who requested that the school provide her with CIC so that she could attend special education classes. The CIC procedure involved the insertion of a catheter tube into the urethra to drain the bladder. Failure to empty her bladder every 3 to 4 hours would result in kidney injury. The procedure was considered by the court to be a "simple one" that could be performed in a few minutes by someone with less than an hour of training. Amber's parents, baby-sitter, and teenage brother were all qualified to administer CIC and she would be able to do so herself when she was a little older.

While the school agreed to provide special education programming at school for Amber, it refused to provide her with CIC. The issue before the Court was whether CIC was a related service that the school was required to provide to a child in need of special education. The Court, in a unanimous ruling, first concluded that CIC was a service necessary to allow Amber to benefit from special education. Without CIC services Amber would not be able to remain at school during the school day and, therefore, would not receive appropriate special education services. The Court then addressed the issue of whether CIC was an excluded medical service. Whereas the statute and regulations required provision of related services, including "supportive services" such as medical services and school health services, the regulations excluded from medical services all physician-provided services, except for diagnosis and evaluation. Thus, treatment services by a physician were not included in the requirement to provide related services. The ruling in Tatro followed the regulations' distinction between school health services qualifying as related services and nondiagnostic physician services not qualifying as related services (34 C.F.R. 300.16(b)(4), 1998). The test articulated clearly by the Court was that nondiagnostic related services of a medical nature were to be provided by the school unless those services required the attention of someone trained and licensed as a physician. That test provided a clear distinction (bright line) between school-required medical health services and excluded medical services based strictly on the fact of whether a physician was required to provide the service. Since CIC did not require the services of a physician, it was ruled to be a related service and not subject to the physician service exclusion of medical services.

Unfortunately, the Court made an effort to clarify its position by discussing what may or could have been legitimate interpretive reasons for the secretary and Department of Education to exclude physician treatment from the medical services definition. It was largely this brief Court digression from the facts that contributed to confusion among later court rulings.

In its discussion, the Court said that the secretary of education's limitation of the definition of medical services to those of evaluation and diagnosis by a physician was a reasonable interpretation of what Congress meant when it used the phrase "medical services ... for diagnostic and evaluation purposes only" (Irving Independent School District v. Tatro, 1984, p. 393) in the statute:

... the Secretary could reasonably have concluded that it was designed to
spare schools from an obligation to provide a service that might well prove
unduly expensive and beyond the range of their competence ... School nurses
have long been a part of the educational system, and the secretary could
therefore reasonably conclude that school nursing services are not the sort
of burden that Congress intended to exclude as a "medical service." By
limiting the "medical services" exclusion to the services of a physician or
hospital, both far more expensive, the Secretary has given a permissible
construction to the provision. [all italics added] (Irving Independent
School District v. Tatro, 1984, p. 893)

The above discussion of expensive and complex medical procedures by the Court evidenced only speculation as to the reasoning of the secretary of education for limiting medical services to that of a physician for diagnostic and evaluation purposes. However, a number of later lower court decisions took this language as a basis to use considerations of expensive ("unduly expensive") and complicated ("beyond ... their competencies") medical procedures to greatly restrict school obligations under IDEA to provide school health services to students (Detsel v. Board of Education, 1986, p. 1026).

First Line of Case Law

The first, and most important, of the cases to follow the Court's incidental remarks in Tatro was Detsel v. Board of Education (1986). Melissa Detsel was a 7-year-old with severe disabilities. She required constant assistance with her respirator to obtain a consistent oxygen supply. The person assigned to supervise Melissa's services was required to check her vital signs, administer medication through a tube, clear the tracheostomy tube with a saline solution, be prepared for cardiopulmonary resuscitation from complications related to the tracheostomy, and generally be prepared to respond to life-threatening respiratory distress. Even Melissa's own physician stated that services of a typically trained school nurse would not be adequate. The issue to be decided was who would have responsibility for providing constant health supervision while Melissa was at school. The County Department of Social Services provided Melissa with nursing services at home but refused to pay for such services while she attended school. The question raised in the lawsuit concerned whether the necessary nursing services were related services that the school should provide under IDEA.

The lower court reviewed the Supreme Court ruling in Tatro and concluded that Melissa Detsel's situation was much more medically complex and expensive than the CIC required by Amber Tatro. The court noted that the decision in Tatro had made reference to costly and complicated medical services being appropriately excluded from the definition of medical services. It noted also that the services needed by Melissa did not fall squarely into the medical services exclusion (i.e., a physician was not required) or normal school nursing services. The court then concluded that even though Melissa Detsel's situation did not meet the specific physician requirement of the medical service regulations exemption as interpreted in Tatro, "exclusion of the disputed services [Melissa's] is in keeping with its spirit" (Detsel v. Board of Education, 1986, p. 1027). It felt that the ruling in Tatro stood for the legal proposition that schools had to provide only school nursing services of a "simple nature." This ruling was affirmed by the Second Circuit with little discussion and the Supreme Court declined to hear it on appeal (Detsel v. Board of Education, 1987). This ruling was later followed by a New York state court on similar facts (Ellison v. Board of Education, 1993).

Thus, the first court decisions on the health services issue following the ruling in Tatro declined to follow the bright line physician test for determining which school health services were not required to be provided by the school. Instead, the courts said that the Supreme Court had approved an approach that balanced costs and complexity, which they then used in determining that Melissa was not entitled to specialized school health services as related services.

After being rebuffed under the medical services exclusion of IDEA, Melissa Detsel sought payment for her extensive school nursing services through the Medicaid program, the joint state-federal program for assisting needy individuals to pay for medical care. The secretary of health and human services opposed this and argued that under IDEA his agency had no responsibility for providing nursing services to children in a school setting, even though his department might be responsible for nursing services the rest of each day. The court ruled that Melissa was entitled under the Medicaid program for payment for needed nursing services while attending public school (Detsel v. Sullivan, 1990). Other more recent decisions have arrived at the same conclusion (e.g., Skubel v. Sullivan, 1996), and the 1997 Amendments to IDEA imply such a result (House Report No. 105-95, 1997, p. 92).

A year after the initial Detsel (1986) ruling, a similar result was achieved in Bevin H. v. Wright (1986). Bevin H. was a 7-year-old with extensive disabilities, including Robinow syndrome (fetal face syndrome), severe bronchiopulmonary dysplasia, profound mental retardation, spastic quadriplegia, seizure disorder, hydrocephalus, and blindness. She breathed through a tracheostomy tube and was fed and medicated through a gastrostomy tube. It was necessary that a nurse be with Bevin H. at all times and give her constant individual attention.

The public school agreed to admit Bevin H. to classes only on the condition that her parents bear the cost of the constant nursing services required. Determining that the $1,850 per month school nursing cost and nonschool-related health costs would soon exhaust their insurance ceiling coverage, Bevin's parents requested that the school assume the expense of the nurse as a related service. The school declined, arguing that the required services were actually medical services not of a diagnostic nature and were not, therefore, medical services the school was required to provide. In its ruling, the court first noted that the medical services exception is "obliquely defined" in federal regulations. The court then balanced the school's needs with those of the student, and following the Detsel ruling, agreed with the school that the medical services required to meet Bevin's needs were so "varied, intensive, and costly" that they were "more in the nature of medical services" [emphasis added] and not properly includable as "related services" (Bevin H. v. Wright, 1987, p. 76). The court warned, without clear or detailed explanation, that other schools should not presume from its ruling that only those inexpensive or easy to perform services will be required as related services.

The next court decision to follow the Detsel and Bevin H. analysis was made by a federal district court in Utah. In Granite School District v. Shannon M. (1992), the court expressly rejected the bright line physician distinction:

The court does not read Tatro to stand for the proposition that all health
services performed by someone other than a licensed physician are related
services under the Act regardless of the amount of care, expense, or burden
on the school system and, ultimately, on the other school children. (p.

Under the court's view, contrary to that of a heating officer and state level review of the hearing officer decision, the school could provide for 6-year-old Shannon M. a homebound program that met the Rowley requirement of a "basic floor of opportunity" and conferred "some educational benefit." This was based primarily on the factual basis that Shannon needed constant nursing care from a licensed practical nurse for tracheostomy and other in-school health care at an estimated cost of $30,000 per year. The school district had asserted in its expense argument that at least eight other children in the district were awaiting the outcome of the court's decision in order to demand full-time nursing care while at school.

The court distinguished Shannon's situation from that of Amber Tatro's CIC on the grounds that a greater level of care was required in order for Shannon to attend school. It declined to use the bright line test of whether the services of a physician were required. The court also concluded, without discussion or analysis of least restrictive environment requirements, that Shannon could not be included in a regular class placement. Thus, a homebound education program was appropriate.

The next decision in this line of case law exemplified the major difficulty of court analysis of the medical services issue in the absence of using the physician services needed for bright line test. When the subjective nature of cost and complexity of the medical services is the primary issue, opinions, even those of hearing officers and judges, differ greatly. The case of Neely v. Rutherford County Schools (1994) involved Samantha, a 7-year-old with a rare condition that required a tracheostomy to aid her breathing. The tracheostomy required cleaning, a rinse with a saline solution, and suctioning off fluids after meals. When Samantha contracted a cold, the cleaning had to occur as frequently as every 20 minutes. Failure to clear the tracheostomy tube when needed, or failure to reconnect the tube properly if it became dislodged by accident, would require prompt resuscitation to prevent serious brain injury or death. Thus, a "well-trained, poised individual" was required for nearly constant monitoring. Although this attendant was able to provide other student services, he/she could not be very far away from Samantha. When Samantha's parents were no longer able to personally attend to her needs while at school, they asked the school to hire either a registered nurse, a licensed practical nurse, or a state-licensed respiratory care professional. When the school refused, the parents agreed to a home instruction program for Samantha pending resolution of the matter.

A state hearing officer ruled that the school was not required under IDEA to provide the nearly full-time medical services care needed by Samantha while at school, and the parents appealed that ruling into federal court. The federal court's analysis did not follow the bright line test, but instead utilized a test that sought to balance (a) the complex nature and cost of the requested medical services in terms of the burden to the school against (b) the school's interest in educating its other students. The adopted burden test did not depend upon the title of the service provider (e.g., physician or nurse), but on the overall burden imposed on a school to provide the student's requested medical services. The court noted that attempting to assess a school's burden in each student request for medical services was more difficult than applying the bright line physician test, but considered it a fairer standard to use.

In applying its burden test, the court estimated that the cost and expertise needed (licensed practical nurse or respiratory care specialist at $13,680 annually) were "medical in nature," but not so "burdensome" that the service should be excluded from a school's responsibility merely because it fell within the medical exclusion category of related services. Unlike the court in the Shannon M. case, the district court in Neely concluded that the "mainstream environment" was an important consideration. Only in the presence of evidence that the requested services were "unduly burdensome" to a school should the requested medical services fall within the exclusion provisions category as a related service. The court directed the school to provide the requested medical supervision services.

On appeal, the Court of Appeals for the Sixth Circuit followed a similar analysis, but came to a different conclusion. It recognized that the Tatro decision was subject to several interpretations, including the bright line physician test, but chose instead to follow the existing majority of decisions rejecting the bright line test, especially Bevin H. and Shannon M. The court adopted an "undue burden" test, which balanced the medical complexity and cost of requested medical services against the school's traditional educational mission, but, unlike the district court, concluded that the hiring of a medical professional to care for a single child was "overly burdensome" (Neely v. Rutherford County School, 1995, p. 971). The court said that, unlike the situation involving CIC in the Tatro decision, Samantha Neely's situation required constant care of a medical nature involving potential life-threatening consequences. Thus, these services were "inherently burdensome" and were distinguishable from Tatro (Neely v. Rutherford County School, 1995, p. 972). It reversed the lower court decision and held that requested medical services were excluded from the related services a public school was required to provide under IDEA.

The most recent decision in this line of case law was made by the federal district court in New Jersey (Fulginiti v. Roxbury Township Public Schools, 1996). This case involved Carissa, a child who was born with severe multiple disabilities of a medical nature that required constant monitoring. The court especially focused on the tracheostomy tube, which required constant monitoring and clearing of mucus. At first, the public school provided a full-time nurse to provide services to Carissa while at school. The school later determined that it was not required by law to provide the services due to their "medical nature." The school estimated that the cost of a full-time nurse for Carissa would be $56,000 per year. While Carissa's parents challenged that estimated amount as excessive, the court did not think that "bargain-hunting" for medical services was a good idea when "life or death" assistance was the issue (Fulginiti v. Roxbury Township Public Schools, 1996, p. 1325). The court concluded that the appropriate standard to use was the "undue burden" standard enunciated by the Sixth Circuit in the Neely decision. The court had no difficulty determining that the nature and cost of services to Carissa constituted an undue burden to the school and were, therefore, medical services not required to be provided by the school under IDEA. If Carissa's parents wanted her to attend school, they, and not the school, had to arrange for the necessary nursing services.

The first line of court decisions following the Tatro ruling declined to use the bright line physician test for determining school responsibility for medically related services under IDEA. Instead, those courts adopted the less definitive test of attempting to assess the degree of burden placed on a school as a result of a student's request for medical services. The more subjective undue burden test allowed for more inconsistent results, as can be observed from the differing results in the court decisions on the identical facts involving Samantha Neely. This inconsistency was not present in the second line of case law that also developed following the ruling in Tatro.

The Second Line of Case Law

Between the Supreme Court ruling in Tatro in 1984 and the second Neely decision in 1995, only one court decision stood in contrast to the first line of case law. That was a 1989 decision issued by a Michigan federal district court in Macomb County Intermediate School District v. Joshua S. (1989). Joshua S. was a severely multiply impaired student who was wheelchair bound, and had a tracheostomy tube that needed supervision and occasional suctioning of mucus in order to clear breathing passages. The school was prepared to provide the necessary related services when Joshua was at school but considered the medical services particularly hazardous during transportation to and from school. The school, therefore, refused to accept responsibility for the medical services needed during transportation.

In its review of the law, the court in Michigan specifically relied on the Tatro decision, which highlighted the reason that Congress mandated related services: the guarantee to children with disabilities of an opportunity to gain an education. The court concluded that the Tatro ruling established a bright line test regarding whether a physician's services were required. It ruled that the court decisions based on a test of a balancing of cost and effort required by schools were not correct. The court concluded that those cases ignored the "spirit of the law," and the Michigan court expressly refused to follow the Detsel and Bevin H. rulings. In Joshua S., the court held that the medical services exclusion of required related services referred only to the services of a "physician or hospital" (p. 828). Because a physician was not required to provide Joshua tracheostomy services while on the school bus (transportation was obviously a related service), the school was directed to provide those services. The Office of Special Education Programming of the Department of Education has agreed with this interpretation of the bright line physician test as outlined in the Tatro ruling (e.g., Guard to Johnson, 1993).

The next litigated situation to arise in the second line of case law became the subject of the second Supreme Court review. The case involved Garret F., a 12-year-old boy (now a 16-year-old high school sophomore) who was injured at age 4 while riding with his father on a motorcycle. A blanket in which the boy was wrapped became entangled in the driving mechanism of the cycle, and this jerked his head causing injury to his spinal column. Paralyzed from the neck down, Garret F. is wheelchair bound and ventilator dependent. He controls his motorized wheelchair through use of a puff-and-suck straw. Being ventilator dependent means that he breathes only with the assistance of an electric ventilator and occasionally with someone else's manual pumping of an airbag attached to his tracheostomy tube. He has other medical assistance needs, including CIC once a day while at school, and positioning, but most school concerns focus on the potential malfunction of his ventilator or blockage of his tracheostomy tube with mucus. Garret is capable of communicating his needs orally or in another fashion, so long as he is receiving oxygen. He is friendly, well liked, creative, and performs at an above-average level in academic subjects.

Due to a near exhaustion of insurance and existing trust funds after 8 years of medical services, Garret's mother requested that the school assume responsibility for providing nursing services for Garret when he was at school. The school refused, and Garret's mother filed a due process appeal. The Administrative Law Judge (ALJ) (the titles of hearing officer or administrative law judge are dependent upon state law) estimated the school district's additional cost of the medical services, above the cost of services currently received, to be between $20,000 and $30,000 per year (Cedar Rapids Community School District, 1994). A district administrator testified at hearing that if a funding source, other than the school, was not found for Garret's medical needs, the likely alternative to his then current inclusion placement would be a homebound program. The ALJ determined that the Tatro decision dictated the application of the bright line physician services test and since no physician services were required, the nursing services required at school were related services that the school was required to provide. His ruling expressly rejected the reasoning of the courts in the Detsel and Bevin H. decisions, concluding that their positions taken from Tatro were out of context and were fashioned to make out of the law what those courts thought it should be. The ALJ stated that, although he personally disagreed with the public policy of spending education funds on health services, he did not feel he had the authority to change the law as those other cited courts had apparently attempted. (Coincidentally, the author of this article was the ALJ in Cedar Rapids Community School District, 1994). He went on to say that even if the balancing tests from the Detsel, Shannon M., and Neely decisions were used, the $20,000 to $30,000 additional cost to the district would not be "over burdensome" to the district. The ALJ went on to apply the state law on related services and the least restrictive environment and again concluded that the district was required to meet those state standards as well as IDEA by providing nonphysician medical services to Garret.

The school district appealed the administrative decision into the federal district court, and the district court in a brief ruling affirmed the ALJ's ruling and the bright line physician services test of the medical exclusion provisions (Cedar Rapids Community School District v. Garret F., 1996). That decision was affirmed, again in a brief decision, by the Eighth Circuit in Cedar Rapids Community School District v. Garret F. (1997). The Eighth Circuit expressly adopted the bright line test and ruled that because Garret's services were provided by a nurse, rather than a physician, they were school health services or supportive services and not medical services excluded under IDEA. The court, in its ruling, expressly stated that, although prior court decisions (e.g., Detsel, 1986/1987; Neely, 1994/1995) had used tests other than the bright line test required by Tatro, it expressly declined to use the Tatro dicta in its analysis as those courts had done.

The school district appealed the Garret F. ruling to the Supreme Court and specifically raised two legal questions: (1) Is a school district required to pay for continuous one-on-one nursing services for a student with disabilities?; and (2) Should there be a bright line rule regarding physician's services as the medical services exclusion (Cedar Rapids Community School District v. Garret F., July 15, 1997)? The U.S. Department of Justice advised the Supreme Court, in response to the Court's order inviting the Solicitor General to express the official legal view of the United States, that the Court should not agree to hear the appeal. The Department of Justice acknowledged that disagreement on the legal issues occurring among the circuit courts of appeal needed resolution, but raised concerns that the ALJ's reliance on state law, as well as his ruling on the alternative multifactor test, would cloud the specific legal issue of the validity of the bright line test. In any event, the Department of Justice concluded that the Court's ruling in Tatro had been properly followed by the ALJ and the lower courts in the case and the Supreme Court need not concern itself with the issues presented by the school district (Brief For The United States as Amicus Curiae).

Whereas the Supreme Court previously had refused to hear appeals on the same issue in the earlier Detsel (1987) and Neely (1996) decisions, it did agree to hear the school district appeal in the Garret F. case (Cedar Rapids Community School District v. Garret F., July 15, 1997). The school district was expressly seeking replacement of the bright line test with a multifactor test that would take into account the cost, complexity, time and amount of services, and potential consequences (liability) of improperly performed services (Brief For The Petitioner).

Subsequent to the Eighth Circuit ruling in Garret F., which, as previously stated, was contrary to rulings in the Second and Sixth Circuits, two federal district courts in Illinois followed the analysis of the Eighth Circuit ruling. They ruled that schools should follow the bright line physician test and that the services of nurses and other health care personnel, other than physicians, are not to be excluded from the related services category on the basis that they are medical services. The first case involved Edward, a 4-year-old boy who was developmentally delayed and had a rare neurological-muscular disease. In addition to a number of other medical devices, Eddie had a tracheostomy tube to aid in clearing his lungs. Largely as a result of the presence of a tracheostomy tube, Eddie attended an early childhood education center for medically fragile children. The court record established that Eddie "is very interactive, alert, and loves interaction with other people" (Skelly v. Brookfield LaGrange Park School District 95, 1997, p. 388). It was clear that he was motivated by being around other children and had made "remarkable progress" during his first few months at school (Skelly v. Brookfield LaGrange Park School District 95, 1997, p. 388).

The school district, however, determined that the clearing of Eddie's tracheostomy tube, necessary during the bus ride to and from school, was a medical service that it was not required to provide. Because Eddie's family was unable to provide the tracheostomy tube cleaning on the school bus, school officials determined that he would have to be confined to a homebound education program. The issue before the court was whether to follow the multifactor balancing test of the Neely decisions or the bright line test used in the Garret F. decision. The court declined to follow the multifactor burden test on the basis that to do so would encourage future litigation due to the uncertainty of result and, thus, would be more disruptive to education. Because it concluded that the bright line test was both clearer for school compliance and legally correct, the court followed the Garret F. analysis. As an aside, the court noted: "Education funds should be spent on education, not litigation" and,

[t]he most educationally efficient place for educators to spend their
professional time (and I am sure the place they would rather be) is the
classroom, not the courtroom. Yet, without a hard and fast bright line test
that is factually easy for school districts to apply, litigation will
continue to be spawned, as in this case in which District 95 appears bent
on spending tens of thousands of dollars on litigation to try to save a few
hundred dollars on an aide to ride the school bus with Eddie. (Skelly v.
Brookfield LaGrange Park School District 95, 1997, p. 394)

The second Illinois case arose after a child receiving satisfactory school medical health services moved with his family and the new district of residence refused to be responsible for his medical needs while at school (Morton Community Unit School District No. 709 v. J. M., 1997). J. M. was a 14-year-old who experienced a number of health and disability impairments, but the primary school concern was that he, like Garret F., was ventilator dependent in maintaining respiratory functioning. As a result, J. M. required constant monitoring by a nurse or trained individual. The new resident school district refused to provide the required health services, citing financial reasons. The state's hearing process resulted in two findings favoring the parents, and the school appealed into the federal district court.

In its analysis, the court reviewed both lines of existing case law and determined that the bright line physician services requirement was the appropriate test of whether medical and health services were related services required under IDEA. The court largely ignored the school district's arguments of being overly burdened by the expense of the bright line test, especially the potential threat of liability for the provision of complex health services. The court noted that J. M.'s parents had been trained in the procedures required, and much like Amber Tatro's CIC, the ventilator supervision and accompanying health needs did not require the services of a physician and were, therefore, related services.

On appeal, the Seventh Circuit took the unique position of deciding not to decide between the bright line physician test and the undue burden test (Morton Community Unit School District No. 709 v. J. M., 1998). It noted that the Supreme Court had agreed to review the Garret F. case and expressing some relief said, "we are happy that the Supreme Court will be grappling with the issue" (p. 587). The court found that the position of the school--only the traditional services of a school nurse were required--and the parents--any service regardless of cost is required so long as a physician is not required--were both too extreme. The Seventh Circuit noted that related services undoubtedly included nurses with special training and that at some point, the cost required and complexity of health services would result in an unrealistic result regardless of whether or not a physician's services were required. Highlighting the fact that the school district had not attempted to establish that an undue financial burden existed, the court determined not to rule on the legal question, but decided instead to defer to the two state heating officer rulings and give their decisions favoring J. M.'s parents "due deference."

Unlike the first line of court rulings, the second attempted to remain faithful to the Tatro decision and did not cause confusion by interjecting the Court's discussion of its rationale into its legal holding. Instead, the second line of case law rejected the use of a subjective test of assessing the burden to the school and adopted Tatro's clearer bright line physician test.

Cedar Rapids Community School District v. Garret F. (1999)

On March 3, 1999, the Supreme Court rendered its relatively brief and succinct decision in the Garret F. case. By a division of 7 to 2, the Justices reaffirmed that the bright line test of physician-provided medical services was the appropriate distinction for school-provided medical services, other than those for diagnosis and evaluation, and held that the school district was required by IDEA to provide in-school nursing services, regardless of cost or complexity. The Court concluded that the primary focus of IDEA was to "help guarantee that students like Garret are integrated into the public schools" (Cedar Rapids Community School District v. Garret F., 1999, p. 1000). The two dissenting justices (Thomas and Kennedy) basically argued for a reversal of the earlier Tatro decision.

The majority of justices expressly rejected the school's arguments regarding a multifactor undue burden exemption for medically related services based primarily on the cost and complexity of services. The Court stated that the school district did not, and could not, argue successfully that any of the services Garret F. required, if considered individually, could be excluded as a medically related service under the statute, and in combination, the result was the same.

The Court recognized that the school district may have "legitimate financial concerns" but emphasized that the role of the Court is to interpret laws and not to enact them (Cedar Rapids Community School District v. Garret, 1999, p. 999). The obvious inference from the Court's statement is that persons not liking the result should seek change through congressional action and not litigation. The Court also noted that taking expense into account in the provision of programs and services would result in the creation of a "tension" between the major purposes of IDEA, namely the opening of public education to all children with disabilities who are qualified, and the provision of education for children with disabilities in the least restrictive environment. Since the Garret F. situation was an issue of meaningful access to school, the Court found that IDEA clearly required the school to fund Garret's needed nursing services while at school.

The Medical Services Issue: Summary

The issue presented by the two distinct lines of case law leading up to Garret F. should never be misunderstood to be a public policy question. As the Supreme Court in Garret F. stated, courts do not attempt to establish or implement policy. The role of the courts in attempting to determine the meaning of phrases in federal statutes is to attempt to determine what policy Congress has established through statute and whether the administrative branch of government has appropriately implemented the expressed public policy through regulations. As was implied in the Supreme Court's Garret F. decision, anyone wishing a change in policy should work through congressional amendment of IDEA.

The legal issue presented by the two lines of case law and the appeal before the Supreme Court in Garret F. is not difficult to understand. One line attempted to be faithful to the Tatro ruling and took the position that the distinction of whether school health and nursing services must be provided to students is dependent upon whether the services, other than for diagnostic purposes, must be provided by a physician (the bright line test). The other line of case law took a balancing approach, which sometimes is articulated as determining what is "unduly burdensome" on the schools. The former presented a clear, concise test for educators to implement, and the latter attempted to apply a subjective level of fairness in the competing interests of the child and the school (when these interests are not the same). With only three justices of the nine on the unanimous Tatro Court remaining to hear and rule on the Garret F. case, speculation regarding a potential result and its implications for education was wide ranging.


Had a majority of justices on the Supreme Court determined in Garret F. to follow some form of test allowing for the balancing of student interests with those of the school, important education policy considerations would have arisen. By its very nature, a subjective balancing test implemented by an IEP team having many persons representing many perspectives would have resulted in increased litigation and resulting program implementation delays. Note, for example, the differing administrative and court decisions based on the same facts in Neely v. Rutherford County Schools (1994/1995). Education administrators would have had to plan more staff time and budget for more attorney fees to cover the increased hearings and litigation. This would have indirectly resulted in a greater demand for a new funding mechanism designated for covering the additional litigation-related expense.

Even more difficult, however, would be the resulting impact on many of the educational concepts contained in IDEA, such as educational benefit and least restrictive environment. Policymakers would have to revisit these concepts and make exceptions for children with extensive medical needs. Isolated and segregated alternative placements, such as instruction in the home, in hospitals, and in institutions, likely would have become more commonplace and accepted for children with medical needs (e.g., Shannon M.).

The result of using a balancing of needs approach for the school health services issue would have also meant there would have been winners and losers. Unfortunately, for the students, it would most likely have meant that they would all be losers. Garret F. is likeable, sociable, and academically successful. In the absence of health services needs, he could be a model student. Yet, with the use of a balancing approach and a lack of family resources, the heating record shows that his likely education program would be homebound instruction. In that setting, Garret F. would lose in many ways, as would his classmates, who would not learn that persons with disabilities can lead relatively normal lives, be socially and economically productive, and be contributors to society. If the decision in Garret F. had been decided differently, education policymakers would have been called upon to alter many previously accepted educational beliefs.

However, because a majority of justices followed the bright line physician test, an extensive review of those policy issues is not required. Instead, a need to review practices comes into focus. The concerns expressed by many schools regarding both the great expense and the lack of medical competence and expertise by educators may actually be borne out. Since it is not possible for school officials to predict or anticipate how many students with disabilities will need school health services, financing the services will be a problem.

As Cedar Rapids School Superintendent, Lew Finch, said in a press conference immediately following the Supreme Court ruling, the real issue is who pays. Finch expressed his belief that the Garret F. decision would have "a tremendous economic impact on schools all over this country" (Stover, 1999, p. 1). He went on to explain that the issue for his school never was whether children needing medical services should be in school:

This has never been about whether or not a disabled student such as Garret
Frey ought to be in school. ... That's what public schools are all about.
We don't turn anybody away.

I think to even the most casual observer, the care, the treatment and
the concern that we have for Garret and other disabled students ought to be
self-evident. It's never been our contention that they shouldn't be in
school or don't need the services. (Stover, 1999, p. 1.)

Finch concluded the press conference by calling on Congress to fully fund IDEA programs, a seemingly reasonable request echoed by a Cedar Rapids newspaper editorial a few days later (Congress should act, 1999).

No school district should have to face the concern of providing school health services for students who need them without having additional financial support from other sources. It is likely, therefore, that special education funding will need to be increased in those areas of the nation not following the bright line test. Without an increase in funding, it is likely that an unhealthy competition for education funding will develop between those children with medical needs, other children entitled to special education, and nondisabled children. Education does not need the additional problems resulting from such a conflict.

Many persons, including this author, would argue that a special funding mechanism should be created for amounts spent on school health services that exceed a threshold amount (e.g., $10,000), whether or not provided by a physician, so that funds used locally for more traditional education programs and services would not be depleted. These funds could be provided through newly developed processes, such as special grants from state or federal education funds, or from state funds reserved for health services. Different agencies' resources could be integrated so that availability of funds are flexible and based on the needs of the child (Blum, 1994). State medical funds might be specifically designated for use by schools when serving children with health and medical services needs. A special provision in federal government funding could be created for meeting the health needs of children in the school setting, such as an expansion of Medicaid to cover this narrow category of children, without regard to family income. As an alternative to increased funding, policymakers may have to revisit the concept of "free" in conjunction with medical, as opposed to educational, services and allow some payments by third-party payers, such as insurance, in addition to current Medicaid payments (Spaller & Thomas, 1994; Yell, 1998). The final regulations promulgated under the 1997 Amendments to IDEA indicate a greater effort to secure Medicaid support, and even private insurance support, for medical services provided under IDEA [Assistance to States for the Education of Children with Disabilities, [sections] 300.142 (e),(f), and (g)(1999)].

A clearer interpretation of school responsibility in the area of providing more medically related services will of necessity result in a greater need for specialized staff development programs and development of medical services expertise among educators (Tyler & Colsen, 1994). Whereas the current IEP team concept can easily incorporate team members from the medical service community, and in many local areas already do, consideration should be given to establishing a new multidisciplinary team expressly including appropriate medical staff input and participation (Blum, 1994; Palfrey et al., 1992; Rapport, 1996). This new team for students with extensive or complex medical needs in the education setting could use a multidisciplinary model approach based on the current Part C requirements of IDEA for infants and toddlers. This team must include representatives from health, human services, education, and other appropriate agencies to pool expertise and financial resources in an effort to meet a child's various needs.

The issue of a greater threat of potential liability put forth by some schools is one that needs unemotional review and consideration. The Supreme Court previously has found potential liability in such situations to be a nonissue, brushing the argument aside as having no relationship to the question of whether a student-needed service was a related service (Irving Independent School District v. Tatro, 1984). Although this author currently considers threats of potential liability minimal, due to the IEP team concept of professional and parent joint decision making, some type of statutory protection such as indemnification or governmental immunity may be appropriate in some states.

As a result of the Garret F. decision, the medical services controversy should finally be laid to rest. Educators now have a great deal of work to do in reassessing educational policy, practice, and funding issues related to the provision of health and medical services in schools. A final resolution by the Supreme Court on the legal aspect of the medical services area will not result in an end to the educational issues, it will only be the beginning, again.


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Assistance to States for the Education of Children with Disabilities, 34 C.F.R. Part 300. 64 Federal Register No. 48 (March 12, 1999).

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Board of Education v. Rowley, 458 U.S. 176 (1982).

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Brief For the United States As Amicus Curiae, Cedar Rapids Community School District v. Garret F. (No. 96-1793, October Term, 1997).

Cedar Rapids Community School District v. Garret F., 24 IDELR 648 (N.D. Ia., 1996), aff'd., 106 F. 3d, 822 (8th Cir. 1997), cert. granted, 66 U.S.L.W. 3063 (No. 96-1793 (July 15, 1997), aff'd., U.S., 119 S. Ct. 992 (1999).

Cedar Rapids Community School District, 22 IDELR 278 (SEA Iowa 1994).

Congress should act on Cedar Rapids case. (1999, March 6). The Gazette, p. 4A.

Department of Education v. Katerine D., 727 F. 2d 809 (9th Cir. 1984), cert. denied, 471 U.S. 1117 (1985).

Detsel v. Board of Education, 637 F. Supp. 1022 (N.D.N.Y. 1986), aff'd., 820 F. 2d 587 (2d Cir. 1987) (per curium), cert. denied, 484 U.S. 981 (1987).

Detsel v. Sullivan, 895 F.2d 58 (2d Cir. 1990).

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Fulginiti v. Roxbury Township Public Schools, 921 F. Supp. 1320 (D. N.J. 1996), aff'd without published opinion, 116 F. 3d 468 (3rd Cir. 1997).

Guard to Johnson, 20 IDELR 174 (OSEP, 1993).

Granite School District v. Shannon M., 787 F. Supp. 1020 (D. Utah 1992). Larry Bartlett, The University of Iowa House Report No. 105-95 (1997), Education and Workforce Committee, U.S.

Code and Cong. Admin. News, 111 Stat. 37, 78.

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Rapport, M. J. K. (1996). Legal guidelines for the delivery of special health care services in schools. Exceptional Children, 62(6), 537-549.

Skelly v. Brookfield LaGrange Park School District 95, 968 F. Supp. 385 (N.D. Ill. 1997).

Skubel v. Sullivan, 925 F. Supp. 930 (D. Conn. 1996).

Spaller, K. D., & Thomas, S. B. (1994). A timely idea: Third party billing for related services. Education Law Reporter, 86(2), 581-592.

Stover, B. (1999, March 4). Frey win affects thousands. The Gazette (Cedar Rapids, Iowa), pp. 1, 8.

Turnbull, H. R., & Turnbull, A. P. (1998). Free appropriate public education: The law and children with disabilities. Denver: Love Publishing.

Tyler, J. S., & Colson S. (1994). Common pediatric disabilities: Medical aspects and educational implications. Focus on Exceptional Children, 27(4), 1-14.

Larry Bartlett, The University of Iowa

Address: Larry Bartlett, N491 Lindquist Center, University of Iowa, Iowa City, IA 52242 (e-mail:

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