Medical/Health Care Services under the IDEA: Legal Issues to Know and Understand David B. Hodgins Thompson & Horton LLP.

Medical/Health Care Services under the IDEA:  Legal Issues to Know and Understand

David B. HodginsThompson & Horton LLP

SCHOOL HEALTH AND SCHOOL NURSE

SERVICES AS RELATED SERVICES

What is a Related Service?

Transportation and such developmental, corrective and other supportive services required to assist a student with a disability to benefit from special education . . .

34 C.F.R. § 300.34(a)

Included are school health services and school nurse services.

School nurse services – services provided by a qualified school nurse.

School health services – services that may be provided either by a qualified school nurse or otherwise qualified person.

34 C.F.R. § 300.34(c)(13)

The IEP must state the special education and related services and supplementary aids and services that will enable the child to . . .

•Advance appropriately toward attaining the annual goals;•Be involved and progress in the general education curriculum; and•Be educated and participate with other children with disabilities and nondisabled children.

School health services and school nurse services will most often be “supportive” services.

The IEP Team determines the related services for the IEP.•Does the student have a health condition that requires school health or school nurse services for the student to benefit from special education?•What specific services does the student require to benefit?•What will be the frequency and duration of the services?•Who will provide the services – a school nurse or other qualified person?

WHAT IS THE DIFFERENCE BETWEEN

SCHOOL HEALTH SERVICES AND SCHOOL NURSE SERVICES AND MEDICAL SERVICES?

“Medical services” are those that must be provided by a doctor. The school district must provide medical services as a type of related service only for evaluation purposes to determine a medically related disability. Reg. 300.34(c)(4)

USDOE Guidance - 2006

“Each public agency is responsible for providing services necessary to maintain the health and safety of a child while the child is in school with breathing, nutrition and other bodily functions (e.g., nursing service, suctioning a tracheotomy, urinary catheterization) if these services can be provided by someone who has been trained to provide the services and are not the type of service that can only be provided by a licensed physician.” 71 Fed. Reg. 46571 (2006)

Catheterization is a supportive service necessary for the student to attend school and therefore required for her to benefit from special education.

Bright Line Rule – Medical services are those that can only be delivered by a physician.

Irving ISD v. Tatro, 468 U.S. 883 (U.S. 1984)

There is no “multi-factor” view to determine if a required health service is a related service or excluded as a medical service. There is only a bright line test – is a doctor required to provide the required health service?

Cedar Rapids Community School District v. Garrett F., 526 U.S. 66 (U.S. 1999)

District did not have to pay for a teenager’s placement in a psychiatric residential facility. Noting that the program was more akin to a hospital than a school or a residential educational facility, the court held that the student’s placement was an excluded medical service.

Mary Courtney T. v. Sch. Dist. of Phil. (3d Cir. 2009)

SCHOOL HEALTH SERVICES ARE NOT JUST

PROVIDED IN THE SCHOOL BUILDING

• 4 year old boy – rare neurological muscular disease.

• Developmentally delayed, wheelchair, gastro-intestinal tube, tracheostomy tube.

• Periodic suctioning required to clear airway.

Question: Is suctioning during the bus ride a related service or an excluded medical procedure.

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

School’s Position:

•Staff does it at school.•Nurse must do it on the bus – it is a medical procedure.

Family’s Position:

•Can be done by any competent person after short training.•Done by family members at home.•Needs aide on bus (not RN, not 1:1) to attend to suctioning.•Medical emergency on bus – call EMS or go to the hospital.

Holding:

•Applied bright line test.•Suctioning does not have to be performed by a doctor.•A nurse is not required, but even if a nurse was required, it would still be a school health or school nurse service. •He had to have the service to get to and from school. It was required for him to benefit from special education.

Parent’s medical insurance had paid for nursing services for quadriplegic, ventilator-dependent student at school and during transportation.

Insurance company sued school for repayment of the costs.

Farmers Ins. Exchange v. S. Lyons Community School, 237 Mich. App. 235 (Mich. Ct. App. 1999)

Holding:

•The services were not required to be provided by a doctor.•The student required them to be present at school and benefit from special education.•These were school health services the school should have provided.•The insurance company was entitled to reimbursement.

If student suffered epileptic seizure on the bus, he had to have an immediate injection.

School convinced the administrative law judge that the driver could adequately treat the child in an emergency and the parent’s demand for an aide on the bus was denied.

Forest Area Community School, 47 IDELR 117 (SEA MI 2006)

Other Considerations:•The severity of the student’s medical needs and whether assigning the bus driver to address those needs may place the other students in peril?•Must the health service be delivered on the bus or can it wait until school or home?•Is there an issue with the proper storage of medication?•Is there an issue with the safe transportation of medical equipment?

MEDICALLY FRAGILE STUDENTS

“Medically fragile” is not a term in IDEA. It generally means a student requiring intensive and prolonged health care as a result of a catastrophic medical event or a congenital condition. These are students with extreme medical needs who require health procedures to be provided or available throughout the school day in order to attend school.

Parent and school had a dispute regarding the extent and type of health services required. School sought to do its own medical evaluation to get complete information. Parent refused to consent. School sought to override lack of consent.

Shelby S. v. Conroe ISD, 454 F.3d 450 (5th Cir. 2006)

Holding:

•School was entitled to do its own medical evaluation.•Such a medical evaluation was not a violation of the student’s right to privacy.•The parent could decline IDEA services if she did not want to allow the student to be evaluated.

Parents of child with disabilities could be required to consent to school district’s request to evaluate student by expert of its choice or else forfeit student’s OHI status.

M.T.V. v. DeKalb County School District, 446 F.3d 1153 (11th Cir. 2006)

“Every court to consider the IDEA’s reevaluation requirements has concluded ‘[i]f a student’s parents want him to receive special education … they must allow the school itself to reevaluate … and cannot force the school to rely solely on an independent evaluation.’”

Least restrictive environment applies equally to medically fragile students as it does to others. Health needs may play a role in determining LRE.

Student with cystic fibrosis needed tracheostomy services. These services (suctioning, medication and reinsertion) could be performed in a general education classroom.

Staff did not want to provide the services. School offered only homebound services.

Hawaii Dept. of Educ. v. Katherine D., 727 F.2d 809 (9th Cir. 1983)

Holding:

•School had to pay for a private placement for the student.•School had not offered education in the LRE.

ADMINISTRATION OF MEDICATION

School district has no obligation to provide

medication – not special education; not a related

service.

Letter to Veir, 20 IDELR 864 (OCR 1993)

School cannot require parents to medicate a student as a condition of attending school, receiving a special education evaluation, or receiving special education and related services. Reg. 300.174

School staff may speak to a parent regarding academic and functional performance, behavior or the need for a special education evaluation. Reg. 300.174

School has no right to compel the administration of medication to a student. Whether the parent provides medication or not may impact what educational planning is appropriate.

If a parent’s failure to medicate jeopardizes the life of the student, consider whether neglect should be reported to child protective services (or state equivalent).

Doctor prescribed medication to be given two times a day at school. Second dosage exceeded the maximum per day amount in the Physician’s Desk Reference. Nurse refused to administer the second dose.

DeBord v. Board of Educ. Of the Fergusson-Florissant Sch. Dist., 126 F.3d 1102 (8th Cir. 1998)

Holding:

•Policy prohibiting administration of medication in excess of recommended dosage applied to all students.•This was not discrimination against disabled students.•Policy was rationally related to protecting students’ health.•Nurse’s refusal upheld.

Prescription for seizure medication said it was to be administered by a registered nurse. School refused to hire full-time nurse to administer medication.

Collier County Sch. Dist., 110 LRP 7471 (SEA FL 2009)

Holding:

•School prevailed.•School’s expert – neurologist – testified a trained, non-medical person could safely administer the premeasured doses.•Principal and assistant principal had been trained by a nurse.

OCR found school at fault for requiring student with long history of impulse problems and attention deficits to be responsible on her own initiative to show up at the nurse’s office for her medication.

San Juan (CA) Unified School Dist., 20 IDELR 549 (OCR 1993)

SURGICALLY IMPLANTED DEVICES

Related services do not include “a medical device that is surgically implanted, the optimization of that device’s functioning (e.g., mapping), maintenance of that device, or replacement of that device.” Reg. 300.34

What is required is assistive technology, proper classroom acoustical modifications, educational support services, and routine checking of external components to make sure they are turned on and working. Are hearing aids functioning properly? Are external components of surgically implanted devices functioning properly?

WHO SELECTS THE PROVIDER OF SERVICES

IDEA case law makes it clear that the school has sole discretion with respect to personnel assigned to provide special education services as long as the student is receiving FAPE. Schools are not required to provide notice to parents or obtain their consent regarding the assignment of personnel.

Court upheld school’s replacement of personal care assistant chosen by the parent with its own employee even though the IEP stated the parents would provide the assistant.

As long as the IEP services are being provided, the parent has no IDEA right to determine who will provide them even if the aide the parent wants is more knowledgeable or better trained.

Slama v. Independent School District No. 2580., 259 F.Supp.2d 880 (D.C. Minn. 2003)

School was not required to comply with parent’s demand that the school employ her private or home care provider to provide school services.

Zasslow v. Menlo Park City School Dist., 60 Fed. Appx. 27 (9th Cir. 2003)

Court denied the demand of nurse/mother to come to school to provide health services. As long as school provides FAPE, methodology, including the selection of personnel, is left to the school.

Monterey Peninsula School District, 38 IDELR 223 (CA SEA 2003)

Court upheld the school’s replacement of a nurse from a private nursing agency used by the parent with its own nurse.

Independent School District No. 728, 30 IDELR 461 (MN 1999)

Administrative law judge rejected parent’s contention that a change in staff could only be done through an IEP meeting with prior written notice to the parent. A change of staff does not affect the identification, evaluation, placement or provision of FAPE to the student. No obligation to even inform the parent.

Tuscaloosa County Board of Education, 21 IDELR 826 (SEA AL 1994)

PARENT REQUEST TO SUPPLY HELPER

What if a parent wants to pay for a service provider to

assist student at school?

If the service is required for FAPE, it is the district’s

responsibility.(F = free) Parent could seek

reimbursement.

Factors to Consider•Not an employee

No control Not subject to school policies Confidentiality and FERPA issues No immunity for person

Factors to Consider cont’d•Loyalty to family•Unwilling to take direction from teacher•Interference with other students•How to say “no” next time

David B. Hodgins

Thompson & Horton LLP

3200 Southwest Freeway, Suite 2000

Houston, Texas 77027

713-554-6745

[email protected]