By Peggy Burns, Esq.

WASHINGTON, D.C. - The U.S. Supreme Court decided Cedar Rapids Community School District v. Garret F. on March 3, 1999. It is a decision which will be significant for transporters and educators across the country.

In a 7-2 vote, the court ruled students with disabilities who need special medical care during the school day are entitled to it at public expense. The court's decision forecasts grave problems for school districts across the country who are faced with an increasing number of students with severe disabilities who need constant care. .

Garret, now 16 years old, severed his spinal column in a motorcycle accident when he was four. He is paralyzed from the neck down, but his mental capacities are intact and he is able to speak.

He attends regular classes in a typical school program. But his needs are neither "regular" nor "typical": he is ventilator dependent and must have one-on-one care at all times in order to attend school.

After years of supplying Garret's assistance, his mother asked the school district to accept financial responsibility for the health care services that Garret requires during the school day. The school district denied the request, believing that it was not legally obligated to provide continuous one-on-one nursing services.

Under the Individuals with Disabilities Education Act, a school district must provide "school health services," which are provided by a "qualified school nurse or other qualified person," but it need not supply "medical services," which are provided by a licensed physician. The only time a school district must pay for a physician's involvement is for diagnostic or evaluation purposes, or for any other situation in which the district, rather than the parent, might require such involvement. Under the "bright line" test, a district must provide any health service which need not be performed by a doctor. Some previous lower court cases, however, have entertained application of an "undue burden" defense: when the health service would be unduly burdensome to the school district, the school district should not have to provide the service even though it did not require a doctor.

A student who needs continuous care in school needs it for school transportation too. Indeed, the question has arisen directly in the transportation context in the 1997 case Skelly v. the Brookfield La Grange Park School District 95. In Skelly, a school district refused to provide a 4-year-old student with a one-to-one nurse during his bus ride to and from school to suction his tracheostomy tube when and if necessary. The Illinois court required the district to provide the service under the "bright line" test.

The Supreme Court rejected the "multifactor" test suggested by Cedar Rapids in favor of the "bright line" analysis. The factors suggested by the district included (1) whether the care is continuous or intermittent, (2) whether existing school health personnel can provide the service, (3) the cost of the service, and (4) the potential consequences if the service is not properly performed. In settling on the "bright line" test, the court said, "The District may have legitimate financial concerns, but our role in this dispute is to interpret existing law."

In decided the constant health care necessary for a student to attend school, if not provided by a physician, is the responsibility of a school district, the court disregarded a number of issues. First, schools lack adequate school nursing services and the financial resources to employ the additional health professionals necessary to provide constant nursing care. With 18,000 students, Cedar Rapids is not a "typical" school district.

Instead, the National School Boards Association (NSBA) reports that 88 percent of the 15,000 school districts in the country have fewer than 5,000 students, and 30 percent have fewer than 500 students. On the average, according to NSBA, the national ratio of school nurses to students is 1:3,098. These districts will face greater burdens from the court's ruling than will larger school districts.

The decision means increased costs across the board. The pressure on school districts to find necessary employees to take on the care of disabled students who enroll at any point in the school year will be even more severe. And school districts are exposed to liability if parents supply the necessary caretakers.

If parents ask you about one-to-one care for their child on the school bus, be sure you report the request immediately to your Special Education Department.

In the wake of Garret F., it is possible that parents who have been providing their own transportation will now insist on yellow bus transportation, accompanied, of course, by a nurse. Remember: those are decisions for IEP teams.

In the interim, where severely disabled students have been traveling by school bus, it's a good idea to determine with the assistance of drivers what kind of assistance, if any, they've been provided, and what problems, if any have arisen.

Where increasing costs are on the horizon from the Garret F. decision, knowledge and data are critical tools.

* Source: Reprinted from School Transportation News, April 1999, pg. 1. all rights reserved.