1994-95 Vol. 8, No. 8

"Ounce of

Prevention..."

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Information and Ideas from IPPSE for Practical Problem Solving in Special Education

TEACHER RECOVERS FOR INJURIES

INFLICTED BY STUDENT

Where the parents of an ADHD student decided to stop giving their son medication which reduced his aggressive behaviors, but failed to find out the consequences of doing so or alternative treatments and did not let the district know in order that it could develop a plan to manage the student's behavior, the Wisconsin Supreme Court ruled that the parents were negligent. Thus, the court held that a teacher injured by the student had a right to recover damages against the parents for their failure to exercise reasonable care given such was a substantial factor in causing the injuries. Nieuwendorp v American Family Ins Co, 22 IDELR 551 (1995).

The student here was a 4th grader who participated in both regular and special education classes. He became unruly, pulled a teacher's hair, and when she fell to the floor, the teacher injured her neck. The teacher sued the parents, whose insurance company contended that just because the parents took their son off medication should not constitute negligence. The court agreed, but said the parents did have a duty to take reasonable steps to control their son's behavior, including finding out what would happen if the drug was discontinued and letting the district know when it was so it could appropriately respond.

In its decision, the court also emphasized that nothing in its ruling would require parents to continue medicating their children so as to allow them to attend public school. Rather, if the parents chose to cease medication, they simply had to let the school district know so that it could develop a plan to manage the student's behavior.

(See TEACHER RECOVERS, p 2)

TEACHER RECOVERS (cont'd from p 1)

IMPLICATIONS:

Questions relating to liability are very dependent upon each state's laws and how their courts interpret them as a matter of public policy. Here, the Wisconsin Supreme Court found that there was no public policy consideration which would keep it from finding that a parent might be liable in this type of situation. To our knowledge, a similar case has not arisen in Michigan. Thus, how Michigan courts would react is unclear.

A possible lesson to be learned from this case is that it reaffirms the importance of the good practice of parents and district representatives keeping each other continually informed with regard to the status of a student's medications and the student's behaviors at home and in school, in response to those medications. At a minimum, where appropriate, district representatives should inquire of parents as to whether a student is on medication and seek consent to discuss, if necessary, the student's situation with the prescribing physician. In addition, the district should advise the parents of the importance of their keeping it advised of any change in the student's medical status in order to allow it to take whatever steps might be appropriate to respond to a possible change in the student's behavior, including possibly the development of a behavior management plan.

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PRESUMPTION OF NEIGHBORHOOD SCHOOL REJECTED

The Tenth Circuit Federal Court of Appeals soundly rejected a parent's contention that under IDEA and its regulations, a presumption exists as part of the LRE mandate that a student's placement be in the neighborhood school. Murray v Montrose County Sch Dist, 22 IDELR 558.

The Murray child is a 12-year old boy with significant medical and physical impairments. His neighborhood school, but five minutes away, only had services to address the needs of mild or moderately impaired children, namely resource rooms and itinerant specialists. The closest program to address the needs of more severely impaired students was in a general education building in another town ten miles away. The parties agreed regarding the amount of time the student should be out of general education, the only question being were his needs more appropriately met in the program for the more severely impaired than in a resource room with accommodations.

The initial hearing officer ruled for the parents, but the district appealed and the review officer held for the district. The parents appealed to federal district court which ruled for the district and the parents then appealed to the Tenth Circuit. Interestingly, throughout the lengthy appeal the student remained at the neighborhood school and at a subsequent IEP meeting, before the Tenth Circuit rendered its decision, it was determined it was appropriate he remain at the neighborhood school.

(See NEIGHBORHOOD SCHOOL, p 3)

NEIGHBORHOOD SCHOOL (cont'd from p 2)

The court rejected several arguments of the parents that IDEA's LRE mandate includes a rebuttable presumption that the LRE is in the neighborhood school, with supplementary aids and services. First, the parents argued that the very wording of the LRE requirement in IDEA and its regulations which uses the words "regular educational environment" implicitly includes neighborhood schools, that "separate schooling" means non-neighborhood schools and that because Congress declared that "the neighborhood is the appropriate basis for determining public school assignments" in 20 USC §1701(a)(2), then the reference to "removal" in IDEA's LRE language must mean removal from the neighborhood school. In response to this argument, the court said the interpretation strains the plain meeting of the statute for it simply says nothing, either expressly or by implication, about the removal of students with disabilities from neighborhood schools.

Next, the parents argued that the IDEA regulations that a student with disabilities be educated as close as possible to the child's home and in the school that he or she would have attended if nondisabled implies a presumption for neighborhood schooling. The court said no in that a student with disabilities should be educated in the school he or she would otherwise attend but only if the student's IEP did not require placement elsewhere. If the IEP did require placement elsewhere, then in deciding where, geographical proximity to the home would be relevant the court said and the child should be placed as close to home as possible. In short, the court noted there is "at most a preference" for education in the neighborhood school and soundly rejected any holding in the Third Circuit's decision in Oberti of a presumption of neighborhood schooling.

Finally, the parents contended that their interpretation was supported by legislative histories surrounding the enactment of IDEA, as well as attempts for subsequent amendments. Again, the court disagreed stating the history shown was not persuasive to overcome the plain meaning of the statute and the absence in it of any reference to neighborhood schools.

IMPLICATIONS:

This case represented a major effort by a variety of advocacy organizations including the National Association of Protection and Advocacy Systems, to establish that under IDEA there is a strong rebuttable presumption that a student's LRE is in the neighborhood school with supplementary aids and services. With the exception of certain language in the Third Circuit's decision in Oberti, the Tenth Circuit's decision is consistent with others which have generally held that there is a preference for neighborhood schooling under IDEA's LRE requirement, but such is neither a right nor even a rebuttable presumption.

While this decision may be looked upon by other courts, hearing officers, and school districts as further support that IDEA's LRE requirement does not include the right of a student to be placed in the neighborhood school, or even the rebuttable presumption that such must occur, they must not forget that the Tenth Circuit reaffirmed that a preference still exists. Accordingly, bottom line, an

(See NEIGHBORHOOD SCHOOL, p 4)

NEIGHBORHOOD SCHOOL (cont'd from p 3)

IEPC and its district must be ready to give a good answer to a parent's question: "Why can't the programs and services my child needs be provided at the neighborhood school?" In other words, as a practical matter when the participants of an IEPC are determining a student's placement they should look first to implementing that placement at the neighborhood school with supplementary aides and services. If, and only if, such is not appropriate due to the presence of other factors necessary to meet the student's needs should placement be made in a nonneighborhood school. Some of those other factors are: 1) the student's needs require participation in a special education program for a low incidence population; 2) the expertise of a special education teacher; 3) the need for a close knit team to provide an array of related services, unique facilities or equipment, etc.--all of which would result in the district incurring significantly increased costs if it had to duplicate such "center" type programming at a student's neighborhood school.

NURSING SERVICES REQUIRED FOR

MEDICALLY FRAGILE

Two recent decisions have found that school districts were required to provide nursing services to students with medical disabilities in situations where they would not have been so required under most prior rulings. While the same factors are considered, such as the level of expertise of the health care provider and costs, the decision makers come to new and different results.

First, a 7-year old student required a breathing tube. At times the breathing tube had to be suctioned and if it was dislodged, emergency action was required. Neely v Rutherford County Schools, 21 IDELR 373. The parents sought full-time nursing services while the district contended a trained aide was sufficient. A hearing officer held for the district and the parents appealed to federal district court.

The court found that the district was required to provide the nursing service under IDEA. In reviewing Tennessee law, it found that a nurse was required to provide the service and inasmuch as a physician was not required, it constituted a "school health service" rather than an excluded "medical" service under IDEA.

With respect to the nature and cost of the nursing service, the court analyzed other staff which the district retained and the tasks they performed in relationship to those this student's nurse would perform. It also compared the cost of these services and the cost of home schooling. After finding that a district paid a nursing assistant approximately $10,600 as compared to $13,600 for a licensed nurse, weighing this burden and others against the potential gains for the child, the court found the latter prevailed and ordered the district to provide the nurse.

(See NURSING SERVICES, p 5)

NURSING SERVICES (cont'd from p 4)

Second, in Cedar Rapids Sch Dist, 22 IDELR 278, a hearing officer was presented with a 12-year old quadriplegic whose needs required, among other things, monitoring of his ventilator, trach suctioning, and catheterization. The only emergency situation foreseeable was a potential problem with the ventilator and all agreed the student could be supported temporarily by ambu-bagging. Basically, the parents and their physician contended the student's needs could be met by a trained aide while the district took the position a nurse was necessary. Under the district's collective bargaining agreement, a nurse would cost approximately $28,000 to $37,000 a year.

A key element of the dispute revolved around whether the school nurse should delegate the functions to a trained aide (which under Iowa law she could). An Iowa nursing board ruling said the nurse could delegate in this instance, but only if she was in the same building as the student, which would not be the case here.

After noting that legal requirements regarding delegation, legal definitions concerning related services, and the cost to the district were really the only reasons it was not willing to pay for the student's health care services, the hearing officer found that the district was obligated to do so. Carefully reviewing prior decisions such as Tatro, Detsel, Bevin H, Shannon M, and Neely, discussed above, he noted there are at least three different perspectives or interpretations so there is little wonder that differences of opinion arise between parents and districts. In short, the Detsel line of cases uses a "rule of reasonableness" considering the intensiveness of services, costs, etc. Joshua S held that all services must be provided except those necessitating a physician. Neely takes somewhat the middle ground by examining the direct burden imposed on a district. This hearing officer found that the student's health care needs did not require a physician and accordingly were "school health services" required by IDEA as a related service. He also found that for the most part the student's needs required only a trained aide, if anyone. Finally, he held that the expense of a nurse, even in the range of $20,000 to $30,000 was not overly burdensome for a district of this size.

At the close of his decision, the hearing officer strongly noted that but for the ruling of the board of nursing (which the district and its nurses feared), the district could utilize a trained aide. While agreeing that he did not have the authority to address what he considered to be an unfounded ruling of the nursing board, particularly since the parents met the student's health care needs at home/outside of school with a nurse not being immediately available, he encouraged an appeal of the board's ruling and strongly criticized the board's disservice to licensed nurses and the persons they serve.

IMPLICATIONS:

Clearly, these decisions open the door for district being required to provide nursing services in situations they previously would not have been. The result in Neely is probably understandable given the small differential between the cost of a trained aide and a nurse as compared to the benefits to the student of being educated in school rather than at home. And, in Cedar Rapids there can be little doubt that the hearing officer was extremely miffed by the ruling of the Board of

(See NURSING SERVICES, p 6)

NURSING SERVICES (cont'd from p 4)

Nursing which appeared to be based more on "turf protection" than provision of health care to a student in a manner which would meet his needs. Very possibly by so ruling the hearing officer intended to push the Board of Nursing, or more likely the parties in attacking the board's ruling, to obtain a more realistic interpretation of how health care services should be provided in school settings, i.e., a nurse need not be immediately available in circumstances such as this.

Districts would be well advised when situations arise where a student's health care needs may require a nurse to not only examine how such services are being provided in the home and otherwise outside of a school, and why (e.g., insurances paying the bill, etc.), but also the relative opinions of the student's physician and the district's own nurse, and in some situations, a consulting physician. Finally, much of the focus will no doubt be on costs which in part will be dependent upon where the child attends school. While the school a student attends can in part be based upon the nature and intensity of the related services the student's needs require (e.g., nursing services), absent other factors justifying the student attending a non-neighborhood school (e.g., expertise of a special education teacher, a variety of interventions requiring a team approach, low incidence population, etc.), a district would be on shaky ground basing a placement solely on where nursing services are already available.

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