CEDAR RAPIDS v GARRET F.
No. 96-1987 NICR
Cedar Rapids Community *
School District, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the Northern
Garret F., A minor by his * District of Iowa
Mother and Next friend, *
Charlene F., *
*
Appellee. *
Submitted: December 12, 1996
Filed: February 7, 1997
Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and
STROM,(*) Senior District Judge.
STROM, District Judge.
This case arises under the Individuals with Disabilities
Education Act, 20 U.S.C. SSSS 1400 - 1491o. At issue is whether
the IDEA requires the Cedar Rapids Community School District to
provide Garret F. with continuous nursing services while he is in
school. The district court(1) granted summary judgment in favor of
Garret
finding that the necessary services were not within the "medical
services" exclusion of the IDEA, and therefore, were "related
services" which the school district must provide.
FACTS
In 1987, when he was four years old, Garret was severely
injured in a tragic motorcycle accident. While Garret's mental
abilities were unaffected, his spinal cord injury left him a
quadriplegic and ventilator dependant.
In the fall of 1988, Garret started kindergarten in the Cedar
Rapids Community School District. He has been in school there ever
since. During the school day, Garret requires a personal attendant
within hearing distance of him at all times to see to his health
care needs. Garret requires urinary bladder catheterization about
once a day, suctioning of his tracheostomy as needed, food and
drink on a regular schedule, repositioning, ambu bag administration
if the ventilator malfunctions, ventilator setting checks,
observation for respiratory distress or autonomic hyperreflexia,
blood pressure monitoring, and bowel disimpactation in cases of
autonomic hyperreflexia. From kindergarten through the fourth
grade, pursuant to an agreement between Garret's parents and the
school district, Garret's family provided the personal attendant.(2)
However, in 1993, when Garret started fifth grade, the
agreement between his parents and the school district was
discontinued. Garret's mother, Charlene F., requested that the
school district provide Garret's nursing services while he was at
school. The school district refused stating that it was not
obligated to provide continuous, one-on-one nursing services.
Relying on the IDEA and the Iowa special education laws,
Charlene administratively challenged the school district's
position. After a hearing, the administrative law judge concluded
that the school district had to reimburse Charlene for the nursing
costs she incurred during the 1993-94 school year and had to
provide such services in the future. The school district appealed
to United States District Court.
In district court, both parties filed motions for summary
judgment based on the record from the administrative hearing. The
court granted summary judgment in favor of Garret finding that the
services were not within the scope of the "medical services"
exclusion of the IDEA, and therefore, the school district was
required to provide them as "related services." The school
district appealed.
STANDARD OF REVIEW
The court will review the district court's interpretation of
the applicable federal statutes de novo on appeal. Dell v. Board
of Educ., 32 F.3d 1053, 1058 (7th Cir. 1994).
DISCUSSION
In order to receive funds under the IDEA, a state must
demonstrate to the Secretary of Education that it has "in effect a
policy that assures all children with disabilities the right to a
free appropriate public education." 20 U.S.C. SS 1412(1) (Supp.
1996). The phrase "free appropriate public education" is defined
as special education and related services. 20 U.S.C. SS 1401(18)
(1990).(3) Thus, if Garret's nursing services qualify as "related
services," the school district must provide them.
Related services are statutorily defined as:
transportation, and such developmental,
corrective, and other supportive services
(including speech pathology and audiology,
psychological services, physical and
occupational therapy, recreation, including
therapeutic recreation, social work services,
counseling services, including rehabilitation
counseling, and medical services, except that
such medical services shall be for diagnostic
and evaluation purposes only) as may be
required to assist a child with a disability
to benefit from special education, and
includes the early identification and
assessment of disabling conditions in
children.
20 U.S.C. SS 1401(a)(17) (Supp. 1996) (emphasis added). Garret
contends that his nursing services qualify as related services, but
the school district argues that the services are "medical services"
which are expressly excluded from the definition of supportive
services and consequently the definition of related services.
This court's decision is controlled by the two step test
pronounced by the Supreme Court in Irving Indep. School Dist. v.
Tatro,
468 U.S. 883
(1984). To determine if a service is a related
service under the IDEA, the court must first determine whether the
service is a "supportive service[] . . . required to assist a child
with a disability to benefit from special education." 20 U.S.C.
SS 1401(17) (1990); Tatro,
468 U.S. at 890
. If it is, then the
court must determine if the service is excluded from the definition
of supportive service as a medical service beyond diagnosis or
evaluation. Tatro,
468 U.S. at 890
.
There is little argument about whether the services Garret
requires qualify as supportive services necessary to enable him to
enjoy the benefit of special education. If the services are not
available during the school day, Garret cannot attend school and
thereby benefit from special education. "Services . . . 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 building" which are expressly
provided for in the IDEA. Id. at 891. Thus, the court finds that
the services Garret requires at school are supportive services.
At the second step, the court must determine whether the
services are excluded from the definition of supportive services as
medical services beyond diagnosis and evaluation. In Tatro, the
Supreme Court established a bright-line test: the services of a
physician (other than for diagnostic and evaluation purposes) are
subject to the medical services exclusion, but services that can be
provided in the school setting by a nurse or qualified layperson
are not. See Tatro,
468 U.S. at 891
-95. Regardless of whether we
agree with this reading of the statute and the regulations, we are
bound by the Supreme Court's holding.
Here, Garret's services are not provided by a physician, but
rather, a nurse. Thus, based on Tatro, the services are not
medical services, but rather, school health services or supportive
services, both of which meet the definition of related services
which the district must provide. See 34 C.F.R. SS 300.16(a),
(b)(11) (1996).
The court is aware of several decisions that have not
interpreted Tatro as establishing a bright-line, physician/non-
physician test for medical services. See Detzel v. Board of Educ.
of Auburn, 637 F. Supp. 1022 (N.D.N.Y. 1986), aff'd, 820 F.2d 587
(2d Cir. 1987), cert. denied,
484 U.S. 981
(1987); Granite School
Dist. v. Shannon M., 787 F. Supp. 1020 (D. Utah 1992); Neely v.
Rutherford County School, 68 F.3d 965 (6th Cir. 1995). Going
beyond the physician/non-physician distinction the Supreme Court
found in the statute and the regulations, these courts rely on
dicta in Tatro in order to factor into the medical services
exclusion considerations of the nature and extent of the services
performed. The court declines to seize dicta in Tatro to go beyond
the physician/non-physician test which the Supreme Court sets forth
therein.
Accordingly, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
**FOOTNOTES**
(*)
The Honorable Lyle E. Strom, United States Senior District
Judge for the District of Nebraska, sitting by designation.
(1)
Hon. Edward J. McManus, United States District Court Judge for
the Northern District of Iowa, Cedar Rapids Division.
(2)
In kindergarten, Garret's aunt, who was not a registered nurse
(RN) or a licensed practical nurse (LPN) and did not have formal
training in medical services, performed these services. From first
through fourth grades, an LPN performed the services.
Garret's family sees to his health care needs when Garret is
at home after school and on weekends. On weeknights, an LPN is
present to check on Garret every two hours as he sleeps.
(3)
The full definition is:
special education and related services that-
(A) have been provided at public expense, under public
supervision and direction, and without charge,
(B) meet the standards of the State educational agency,
(C) include an appropriate preschool, elementary, or
secondary school education in the State involved, and
(D) are provided in conformity with the individualized
education program required under section 1414(a)(5) of
this title.
20 U.S.C. SS 1401(a)(18) (1990).