Supreme Court Issues Further Clarification about
Required Health Services Under Special Education Mandates

By Laura F. Rothstein
Health Law & Policy Institute

On March 3, 1999, the Supreme Court clarified questions that had been debated in a number of lower court decisions since 1984. Its decision in Cedar Rapids Community School District v. Garret F., 1999 WL 104410 (1999), addressed the issue of whether certain intensive nursing services should be categorized as "medical services" for which the school is not required to pay or as "related services" for which the school would be required to pay. A clarification of where to draw the line had been sought since the 1984 Supreme Court decision in Irving Independent School District v. Tatro, 468 U.S. 883 (1984), a case involving catheterization as a "related service."

The case arose because Garret F., a high school student who had been paralyzed at age four, required a variety of services for his physical needs while in school. These services include bladder catheterization, suctioning of a tracheotomy tube when necessary (at least every six hours), feeding, positioning, and other ventilator services. The services require some degree of training, but are not required to be performed by a physician. They are, nonetheless, intensive, and costly. The obligation of the educational agency to pay for these services during school hours depends on the interpretation of the terms "medical services" and "related services" under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. sections 1400 et seq. IDEA requires students with disabilities to be provided related services at agency expense, but not medical services other than those needed for diagnostic and evaluation purposes. The Court addressed the meaning of these terms.

The Court, in a 7-2 opinion by Justice Stevens, affirmed the lower court's holding that the services needed by Garret F. are related services that must be funded by the educational agency. In so doing, it rejected the school district's argument that a cost-based, multifactor test that considers the nature and extent of services should be used to make the distinction. This is a test that had been accepted by some lower courts. See Laura F. Rothstein, DISABILITIES AND THE LAW section 2.24 (Westgroup 1997 and cumulative supplements) for case citations on this issue. The Court had addressed this issue in the Tatro case which had established that clean intermittent catheterization is a required related service, and in which the Court had given guidance that medical services were those that must be performed by a physician. The Court in Tatro had referred to issues of cost and competence as reasons for distinguishing between physician and other services, and that reference had been the basis for some of the lower court decisions in which intensive one-on-one type nursing services had been found not to be mandated "related services."

The Court in Garret F. clarified that while cost and competence had been a basis for distinguishing between medical and other related services, the fact that the services needed for Garret F. were more extensive than those needed in Tatro, they were no more "medical" in nature. The Court also rejected the school district's argument about the potential financial burden, by deciding that while this may be a legitimate concern, the case must turn on Congressional intent, and Congress did not allow for an undue burden defense in IDEA cases.

The case is significant, not only because it clarifies an important unresolved issue, but also because it raises an important policy issue about who should bear the costs in cases involving individuals with expensive and intensive health care needs. Not only is there the question about who should bear these costs as between the student and the school, but who should bear these costs between various educational funding sources.

With respect to the cost burden between the individual and the public agency, it is important to note that this case only resolves the cost issue until Garret F. graduates from high school. Once a student graduates from high school, he or she is no longer eligible for services under the IDEA. That student must then rely on a patchwork of coverage under vocational education programs, federal benefits programs for indigent and disabled individuals, private health and disability coverage, and damage recoveries in tort cases. These programs are problematic because they may require that an individual "spend down" and use all available assets before becoming eligible, or, in the case of private insurance, there may be lifetime caps that mean that a certain level of services will run out when the cap is reached. This case serves as a reminder of the cost burden that is placed on individuals and their families when catastrophic illness and impairment occurs. As a policy matter, it seems that a funding source to cover the health related costs of these conditions over a lifetime should be in place.

As among educational agencies, this case raises the problem that for the small school district with a limited budget, an expensive special education service such as this or a placement such as a residential placement can be an extreme burden. A larger school district with a larger budget will be in a much better position to offset these high cost placements. The case highlights the need to have such services directly funded by the state educational agency or even the federal Department of Education.

Thus, while the decision resolves the legal responsibility for these cases under statutory interpretation for students in public schools, it certainly does not resolve the policy questions about how these costs should best be shared by society.