November 1995, Vol. 9, No. 3
An "Ounce of Prevention..." News
Information and Ideas from IPPSE for Practical Problem Solving in Special Education
SCHOOL
DISTRICT NOT REQUIRED TO PROVIDE PRIVATEDUTY NURSING CARE, RULES THE SIXTH CIRCUIT
A school district is not required to provide a one-on-one "private duty nurse"
to a student who required suctioning of a tracheostomy tube. The Sixth Circuit ruled in Neely
v Rutherford County School, 23 IDELR 334 (6th Cir.,1995) that the provision of a
private duty nurse for suctioning of a tracheostomy tube was a medical service excluded
from related services under §1401(17) of the IDEA.
The parents of a seven year old student requested full time nursing services while the
student attended school. The student had a trac tube which required suctioning on a
regular basis. Additionally, the student may have needed immediate care to restore
breathing if the tube became clogged or dislodged. Unless such medical service was
provided immediately, severe brain damage or death could have occurred if respiration was
not restored within minutes. For these reasons, the parent requested a one on one licensed
nurse to provide suctioning of the trac tube during the school day. Under Tennessee law
(the state in which this arose) this service was required to be provided by a licensed
physician, a licensed registered nurse, a licensed practical nurse, a respiratory
specialist, the patient's parents or the patient herself. A trained nurse's aide or other
paraprofessional was not allowed by law to provide this service.
The school district agreed that the provision of a person to assist in suctioning would
be a related service under IDEA. As such, the district agreed to provide a person to do
the suctioning, and hired a certified nursing assistant. The parents, however, disagreed
with the licensure of this person, and requested a registered nurse or licensed practical
nurse to be provided one on one for suctioning. At the due process hearing level, the
administrative law judge ruled in favor of the school district, finding that the provision
of one-on-one "private duty" nursing services to the student constituted a
medical service, and was thereby not a related service under IDEA. The parents appealed to
the federal district court. After a review of the record and additional affidavits by the
parents the federal district court ruled in favor of the parents. See, Neely
v Rutherford County School, 21 IDELR 373 (D Tenn, 1994). The district court
reasoned that the related service, when provided by a licensed practical nurse, was not a
substantial burden on the school district since the cost of a certified nursing assistant
and a licensed practical nurse was about the same. [Editors Note: See
OP News, 1994-95, Vol. 8, No. 8, p. 4, discussing the prior decision.] The district
appealed to the Sixth Circuit Court of Appeals.
In the Sixth Circuit, the parties stipulated that the cleaning of the trac tube was a
supportive service necessary for the child to enjoy the benefit of special education. The
district argued, however, that because of the nature of the service it fell within the
medical services exception of the IDEA. In its analysis, the Sixth Circuit reviewed a line
of cases which had dealt with "medical" services provided by school districts.
Foremost in that analysis, was the case of Irvin Indpt Sch Dist v Tatro,
555:551 (US, 1984). In that case, the Supreme Court ruled that the provision of clean
intermittent catheterization (CIC) by a person trained to provide such service was a
related service and not excluded under the medical exception under IDEA. Instead of
looking at the particular type of service, whether it be medical or not, the Supreme Court
looked to who provided that service, noting the necessary expertise and cost of such
person. In Tatro, the CIC could be provided by a layperson with training at
reasonable cost. Thus, the Supreme Court ruled that it was not a medical service excluded
from related services.
The Sixth Circuit then concluded that whether or not a service falls within the medical
exception was primarily determined by the nature of the service and who (i.e.,
physician/nurse or paraprofessional/layperson) provided that service not the cost. The
Court also stated that the burden on the district was to be considered. The Court further
held that the risks involved and the liability of the district are appropriate factors to
take into account when determining this burden.
The Court reviewed several other district court and court of appeals cases. The cases it
considered which had previously held that a service was excluded under the medical
exception all involved situations where the person providing that service was mandated
(usually by state law) to be a physician, nurse or other medical professional. See
Granite Sch Dist v Shannon, 18 IDELR 772(D Utah, 1992); Bevin H. v Wright,
EHLR 559:122 (WD Pa, 1987). Those cases which involved services which can be provided by a
trained paraprofessional, and sometimes the students themselves, have not been held to be
excluded. See, e.g., Tatro, supra, Dept of Ed v Katherine
D, EHLR 555:276 (9th Cir, 1983). The court noted it is the constant monitoring and
life threatening prospects which require a professional that is the determining factor
whether a service is excluded or not--not the cost of the person providing the service.
In this case, the court reasoned that if the service must be provided by a physician,
registered nurse or other professional, and the need was for constant monitoring with life
threatening consequences, the service would be excluded under the medical exception. If,
on the other hand, the service could be provided by a trained lay person, such service
would not be excluded.
Since there was ample evidence of the life threatening nature of the condition, that the
student needed constant monitoring and state law required the service be provided by a
licensed professional, the Court found that the service was excluded under the medical
exception. In regard to the issue of "burden," the Court found that "it is
the 'private duty' component of Samantha's care that is inherently burdensome." For
these reasons, the Court reversed the district court and affirmed the hearing officers
decision.
IMPLICATIONS:
This case is important to us in Michigan because we are bound by decisions of the Sixth
Circuit, and this is the first decision by this court dealing with the extent of a
district's obligation to provide services to a medically fragile student. Significant here
is that this decision falls in line with a vast majority of prior decisions holding that
if a student's needs require a "private duty" nurse, i.e., by the student's side
at all times, such is deemed to be a medical service not included in the definition of
related services and thus not an obligation of a district. On the other hand, if a
student's needs require only intermittent intervention by a nurse or the full time
attention of a trained paraprofessional, these services would fall under the definition of
related services and be an obligation of a district under IDEA.
The lower court decision, here reversed, had opened that door to the possibility that in
areas where a nurse would cost approximately the same as a trained paraprofessional, a
district would be obligated to provide the private duty nurse, but the Sixth Circuit said
no--the nature of the service not the cost, was the determining factor in whether the
service was or was not within the definition of related services.
Bottom line, this decision does not change the basic steps which any district must take
when presented with a situation where services need to be provided to a medically fragile
student. They are in summary: 1) obtain in writing from the student's physician a
statement as to the student's medical needs, the interventions necessary and the extent of
training necessary to make the intervention, i.e., a trained paraprofessional, nurse,
etc.; 2) if a district questions the advice from the student's physician, it may have its
own physician examine the child; 3) once agreement is reached on the student's needs,
required interventions and appropriate training, such should be documented; and 4) the
physician or nurse delegating the intervention to a nurse or trained paraprofessional, as
the case may be, must be designated as the "supervisor," appropriate training
provided by the district and other arrangements made as may be necessary with respect to
equipment, medications, communication, etc.
An extensive outline discussing the basic legal principles and practical guidelines in
providing services to medically fragile students, entitled "Services to the Medically
Fragile: Limits? Who Does It? Who Pays? Liability Risk?" (including suggested forms)
is available from OP News by contacting 517/349-4121.
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SIXTH
CIRCUIT HOLDS THAT AGE RULE INATHLETICS NOT VIOLATIVE OF 504/ADA
Refusal of the Michigan High School Athletic Association to waive the age requirement
for participation in high school athletics does not violate Section 504 or ADA. Sanison
v Michigan High School Athletic Association, Inc, 23 IDELR 222 (6th Cir, 1995).
Two high school students/athletes filed suit against the Michigan High School Athletic
Association (MHSAA) claiming that the application of the MHSAA age requirement violated
Section 504 and the ADA by prohibiting students who turn 19 before September 1 from
participating in interscholastic sports. Both students turned 19 in May of the academic
year preceding their senior year in high school. This age difference was occasioned by
delays in beginning school, retention, or years spent in special education classrooms
prior to making the transition into regular education. As a result, both students ended up
two years behind the class age group.
When excluded from participation in sports, the students sued the school districts and
the MHSAA, seeking a temporary restraining order to permit the students to compete, and
for a preliminary injunction. The federal district court for the Eastern District of
Michigan granted the temporary restraining order and the preliminary injunction. The
district court restrained all defendants from preventing the plaintiffs from participating
in sports, and enjoined the MHSAA from sanctioning the local district for whom the
plaintiffs participated. The MHSAA appealed to the Sixth Circuit Court of Appeals.
On appeal, the Sixth Circuit found that the issues related to the preliminary
injunction, which allowed the students to compete in track meets, was moot as the track
season had ended for that year. Further it found the issue not capable of repetition,
since the students had graduated from high school.
As to the second part of the preliminary injunction, namely that the MHSAA be enjoined
from penalizing the high school for permitting the students to compete, the court found
that this aspect of the injunction was not moot as it was capable of repetition.
In its analyses of the Section 504 claim, the Court focused on the requirement that the
discrimination be based "solely by reason of the handicap." The court found that
the exclusion of students from participation in high school athletics was not based on the
disability, but rather solely on the student's age. Since the regulation adopted by MHSAA
was neutral in regard to disability, and a decision excluding the student by application
of the rule could be made without ever knowing if the student was disabled, the regulation
did not violate Section 504.
The students argued, that notwithstanding this, application of the regulation had a disparate impact upon students with disabilities. The court, in analyzing other cases which discussed the "disparate impact" of regulations, found that the plaintiffs in those cases were prevented from meeting the natural requirements due to the disability; absent the disability, the plaintiffs would presumably have met the requirements. In this case, however, the same was not true. Absent the disability, here a learning disability, the plaintiffs still would have not been able to meet the natural requirements, namely age. The Court then found that "the plaintiff's respective learning disabilities do not prevent the two students from meeting the age requirements; the passage of time does." The court then held that the plaintiffs could not meet the "solely by reason of disability" element of a Section 504 claim.
The court then further analyzed the "reasonableness" of any needed accommodation. In this case, the "reasonable accommodation" would be waiver of the age requirement. Since the court found that the MHSAA age regulation was a necessary regulation, waiver of that requirement would not be reasonable.
As to the claim under the ADA, the court found that the MHSAA was not a " place of
public accommodation" under Title III, and it was therefore inapplicable. As to Title
II of the ADA, the court indicated that the analysis was much the same as under Section
504. Under Title II the term "qualified individual with a disability" means an
individual with a disability who, with or without modifications of the rules and policies,
etc., would meet the essential eligibility requirements for participation. Therefore, in
order to prevail under Title II of the ADA, the students had to show that they were
excluded from participation "solely by reason of the disability." As explained
above, the students were unable to meet this burden of proof. The court found that the age
requirement was an "essential eligibility requirement" pursuant to Section
12131(2) of the ADA. As under Section 504, the plaintiffs could not show that wavier of
the age restriction under the ADA was a reasonable accommodation. Since the court
specifically found that waiver was not reasonable, the students' claims under both
statutes failed.
Since the court found that the plaintiffs were unlikely to prevail on the underlying
causes of action, it found that the district court had erred in enjoining MHSAA from
invoking penalties for the use of ineligible players and reversed that portion of the
preliminary injunction.
IMPLICATIONS:
With this decision the Sixth Circuit joins the Eighth Circuit in finding that the age
requirement is a "necessary" requirement for participation in high school
athletics. See, Pottgen v Missouri State High School Athletics
Association, 21 IDELR 929, (8th Cir). Other lower court decisions which have reached
that same result include Cavallaro v Ambach, EHLR 555:373 (W Dist NY, 1983),
and Thomas v Green Castle Comm Sch, 19 IDELR 387, (Ind Ct App, 1992).
There remains, however, cases which continue to go the other way. See, University
Interscholastic League v Buchanan, 19 IDELR 683, (Tx Ct App, 1993) and, more
recently, Johnson v Florida High Schools Activities Association, 23 IDELR
218 (Middle Dist Fl, 1995). In the Johnson case, one which is almost identical to
the Sanison case, the district court ruled in the same manner as the lower court
did in Sanison. In fact, the Johnson court cites to the Sanison
decision and adopts its reasoning. The decision in Johnson was issued six days
prior to the decision in the Sixth Circuit. It is unknown whether the Johnson case
will be appealed to the court of appeals in that circuit.
Bottom line, we are bound by the Sixth Circuit's decision in Sanison. It has not
been taken to the U.S. Supreme Court. Therefore, the only change in the law for us would
be if the U.S. Supreme Court in some other case rules to the contrary.
THIS MONTH'S Q & A
Q. Is there any way to force a student, or a student's parents, to consent for a blood
test for AIDS when a school district employee comes in contact with the student's blood
(i.e., contact with the eyes, mouth, open sores, etc. )?
A. No. Rule 340.1721 and 340.1722d require parental consent for any medical testing of
students. Absent a court order to the contrary, blood testing for AIDS requires an
executed consent form from the student (if the student is 18 years of age or older) or
from the student's parent/guardian (if the student is a minor or has had a guardian
appointed). A review of the statutory provisions under the Public Health Code support a
student/parent's right to refuse consent. See, e.g., MCL 333.5113 regarding
religious beliefs, MCL 333.6101, et seq. regarding substance abuse treatment, MCL
333.9101(4) regarding educational programs relating to HIV, etc., MCL 333.9152(2)
regarding health screening for other pathogens. Additionally, although school districts
are required to have policies setting forth post exposure evaluation and follow up
pursuant to OSHA regulations, such policies specifically provide that a "source
blood" is to be tested after consent is obtained. If consent is unable
to be obtained, the district shall set forth those reasons. See, e.g., Mich.
Dept. of Education's 1992 model exposure control plan for schools, p. 9.
The only present authority for forced testing in Michigan is a state criminal statute
that empowers a court to require the HIV testing of persons found guilty of criminal
sexual conduct, as the legislature found that the risk of exposure in that situation was
so likely that the public interest exceeded the individual defendant's right of privacy. See
MCL 750.520m, MCL 791.233d, MCL 28.171, et. seq. By analogy, it may be
possible under extreme situations to seek a court order
directing that a blood sample be taken. In all likelihood, however, a court would only
order such relief where the likelihood of infection is great (student at extremely high
risk) or the potential danger to the employee is unreasonably high (likely death or injury
to an unborn child).
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