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On March 3, 1999, the U.S. Supreme Court ruled in Cedar Rapids Comm. Sch. Dist. v. Garret F. that continuous, one-on-one nursing care is a required "related service" under the Individuals with Disabilities Education Act (IDEA), rather than an excluded "medical service," and that if such services are necessary to enable a disabled child to attend school, a district must furnish the care at no cost to the parents. Following its reasoning in the 1984 decision Irving Indep. Sch. Dist. v. Tatro, the Court in Cedar Rapids applied a physician/non-physician test to determine whether a requested service is a "medical service" because it must be provided by a physician, or a "related service" because it can be provided by a non-physician.

The Cedar Rapids case involved a high school student, Garret, who is quadriplegic and ventilator-dependent as a result of a spinal cord injury suffered when he was four years old. Both at home and at school he requires urinary bladder catheterization, tracheotomy care and oxygen as needed, ventilator management and ambu-bagging, repositioning, and oral nutrition. Garret's parents had employed a licensed practical nurse to attend to Garret and asked the district to assume that cost for the time Garret is at school. The district previously had furnished a full-time teaching assistant.

Under the IDEA, disabled students are entitled to special education and "related services." Related services are defined as "supportive services" as may be needed to assist a disabled child to benefit from special education, including speech pathology, physical and occupational therapy, counseling services, and "medical services," but only when such medical services are for diagnostic and evaluation purposes. Thus, the definition of "related services" makes a distinction between necessary "supportive services" and excluded "medical services."

In the Tatro case, the Supreme Court held that clean intermittent catheterization (CIC) was not a medical service because the procedure could be performed by a non-physician, i.e., a nurse or even a trained lay person. Therefore, CIC was held to be a required related service and not an excluded medical service. In Cedar Rapids, the district did not disagree that the student needed the disputed services as "supportive" and admitted that it did not consider the services to be medical. The district argued, however, that the continuous nature of the services made them medical, and that their cost was prohibitive. The district proposed a multi-factor test, focusing on: 1) whether the care is intermittent or continuous, 2) whether existing staff can provide the service, 3) the cost of the service, and 4) the potential consequences if the service is not properly performed. The Court refused to accept this multi-factor test, concluding that while continuous services may be more costly and require more staff, they are not more "medical."

Some observers have hailed the Cedar Rapids decision as reassurance that medically-fragile students will have access to public education. Others believe that the ruling will have a substantial financial impact because school districts now must pay for all related services which can be performed by someone other than a licensed physician. In reality, many districts have for some time been providing extensive nursing services. The cost impact to districts will vary somewhat depending upon the nature of the services and whether they must be provided by a registered nurse under state nursing practice law or can be provided by a licensed practical nurse under the new State law which allows LPNs to provide nursing services at school sites.

Final Regulations Issued Under IDEA 1997 Amendments

After numerous delays following the issuance of proposed regulations in October 1997, the U.S. Department of Education recently issued final regulations under the 1997 Amendments to the IDEA. The final regulations contain some important changes as a result of thousands of comments and criticisms submitted by interested persons concerning the proposed regulations. Specifically, the new regulations clarify various statutory requirements, including the new components of the Individualized Education Program (IEP), the composition of the IEP team, and the new emphasis on greater participation of disabled students in the regular education setting, the general curriculum, and standardized achievement testing. It is in the discipline area, however, that the final regulations may be most helpful to school districts.

The final regulations make it clear that during the first 10 days (consecutive or cumulative) of suspension in a school year, a district does not have to provide any educational services to a misbehaving disabled student. More importantly, however, the final regulations permit additional short-term suspensions, after a total of 10 suspension days in any given school year, under certain circumstances. However, some educational services must be provided after the 10th day of removal and the series of removals must not constitute a "change of placement." Whether or not a change in placement has occurred will depend upon such factors as the length of each suspension, the total amount of time the child is removed from school, and the proximity of the removals to one another.

The final regulations take effect on May 11, 1999, but compliance with the regulations will not be required until the date states receive their 1999 IDEA funding (expected to be available on July 1) or October 1, 1999, whichever is earlier. Thereafter, the new regulations, like the statute itself, will be the subject of differing interpretations about what the law requires. These differences of opinion no doubt will lead to administrative hearing requests and court appeals, resulting in further refinement of the meaning of the Amendments and the regulations.