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RELATED SERVICES

Special Education and the LawWinter 2009Sherrie Brown

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What are Related Services?

• School Districts must provide a Free Appropriate Public Education (FAPE) to students who meet eligibility criteria:

• Children ages 3-21• Have one of 13 disabilities or a child ages 3-9 who

experiences developmental delays• Requires special education and related services in

order to benefit from public education.

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Related Services defined as…

• Transportation, and such developmental, corrective, and other supportive services (including speech language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, school nurses services designed to enable a child with a disability to receive a [FAPE] as described in the IEP of the child, counseling services, including rehabilitation counseling, orientation and mobility services, 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. . . .

• Exception — This term does not include a medical device that is surgically implanted, or the replacement of such device.

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Related services are…

• Services without which the student cannot benefit from special education (specialized instruction).

• Services based on peer-reviewed research to extent practicable.

• Medical services (and therefore the responsibility of the SD) only when they serve diagnostic or evaluative purposes.

• Services provided by a licensed physician to determine a child’s medically related disability that results in the need for special education . . . .

• Nursing services designed to enable student to receive FAPE.

• School health and school nurse services.

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Related Services CAN Include

• speech-language pathology and audiology;• psychological services;• physical and occupational therapy;• recreation, including therapeutic recreation;• counseling services;• social work services in schools;• medical services for diagnostic and evaluation

purposes; • orientation and mobility services;• appropriate monitoring and maintenance of medical

devices needed to maintain health and safety of a child (breathing, nutrition etc); and

• PE services, specially designed if necessary, must be available to every child unless children without disabilities do not receive PE in that grade.

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Related Services DO NOT Include a

•Medical device that is surgically implanted, the optimization of device functioning, maintenance of the device or the replacement of that device.

•But they do include routine checking of an external component of a surgically implanted device.

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Medical Services or School Health Services?

• Medical services are generally described as those that are provided by a physician.

• These are related services only when they serve diagnostic or evaluative purposes.

• Otherwise, medical services are excluded from coverage under federal law and Washington Administrative Code.

• School health services are considered a related service and may be performed or, if appropriate, delegated by a qualified school nurse.

• Examples include gastrostomy (GT) feeding, oral suctioning, and oral medications.

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Judicial Interpretation

Irving Independent School District v. Tatro (US Supreme Court 1984)

• Was CIC a medical procedure that school was not obligated to provide?•The Court held CIC is a “supportive service . . . required to assist

a handicapped child to benefit from special education.” Why?

•Because it is a service which does not have to be provided by a physician or in accordance with a physician’s prescription.

•Further, it could be “performed in a few minutes by a lay person with less than an hour’s training.”

• Established a 2-part test:

•Related service in question must be supportive

•School nursing services must be provided only if they can be performed by someone other than MD.

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Post-Tatro Caselaw

• Medical-like or Multi-factor Test was developed in many cases. Courts considered the following factors:

• Cost of the service?• Is the care/attention constant or intermittent?• What skill is required to perform the service?• Can the school nurse perform the service?• Does it have to be performed during the school day?

• This test was increasingly common prior to the Garret decision.

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Bright Line Test

Cedar Rapids School District v. Garret F. (U.S. Supreme Court 1999)

• Was the school district obligated to provide Garret with continuous nursing services while he was in school?

• District stated that one-to-one continuous nursing services were beyond IDEA mandate; multi-factor test was appropriate.

• Supreme Court reiterated the bright-line test of Tatro.• Garret bright-line test establishes affirmative duty to ensure

child receives all related services not requiring presence of MD.

• Dissent argues that Tatro wrongly decided; that Majority misinterpreted the purpose of IDEA.

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Financial Implications of the Garret Decision?

• Cost does not morph a school health service into a medical service.

• “In Tatro we referenced the likely cost of services and the competence of school staff as justifications for drawing a line between physician and other services, but our endorsement of that line was unmistakable.”

• Procedures needed by Garret may be more costly and require additional personnel; this did not make them more medical.

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Supreme Court continued:

[D]efining ‘related services’ in a manner that accommodates the cost concerns Congress may have had . . . is altogether different from using cost itself as the definition. Given that [the relevant section of the IDEA] does not employ cost in its definition of ‘related services’ or excluded ‘medical services,’ accepting the District’s cost-based standard as the sole test for determining the scope of the provision would require us to engage in judicial lawmaking without any guidance from Congress. It would also create some tension with the purposes of the IDEA. The statute may not require public schools to maximize the potential of disabled students commensurate with the opportunities provided to other children . . . and the potential financial burdens imposed on participating States may be relevant to arriving at a sensible construction of the IDEA. But Congress intended ‘to open the door of public education’ to all qualified children . . .

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Please consider these….

• Does the Garret Bright-Line Rule increase or otherwise change the districts’ obligation to pay for services children receive in residential facilities?

• Tonight’s case: Taylor v. Honig

• Social work services include “working with those problems in child’s living situation that affect the child’s adjustment in school.” Does this mean providing an aide to assist in an in-home behavior management program?

• Are reimbursement for family lodging costs related services?

• Can related services be for parents?

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PART TWO: Related Services

Miscellaneous Issues

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Educators Have Duty To Ensure Safety Of All Students

• General Negligence Rule: Staff is responsible for safety of students in school.

• Affirmative duty to aid injured or ill students and act in a reasonable and prudent manner to obtain immediate help for those who need additional assistance.

• Good Samaritan Law: generally is not applicable in school setting.

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What Is The Duty Towards Students With Disabilities?

• Does this negligence standard change when the student has special health care needs or uses assistive technology to sustain life?

• Perhaps—but only to require a higher standard of care—i.e., teachers are on notice that their students may require emergency intervention.

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Applying This General Rule When Student Has A DNR Order

• What is an educator’s responsibility when a student’s parent or legal guardian has a “do not resuscitate” (DNR) order?

• Is a teacher legally obligated to allow a student to die?

• Is a school nurse legally obligated to allow a student to die?

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DNR ORDERS: The Response of Emergency Medical Services (EMS)

• RCW 43.70.480 authorized DOH to adopt guidelines and protocols for EMS response to a DNR order in the community.

• EMS is authorized to honor a request to withhold treatment (no CPR) if supported by either a“EMS—No CPR” directive or bracelet obtained from the Department of Health.

• Children are not covered.

• EMS instructed to provide full emergency treatment to children in community settings.

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Is There A Right To Die?

• Ethical/Religious dilemma for which there is no social or legal consensus.

• Runs the gamut from abortion to euthanasia; withholding treatment (honoring a DNR order) is simply another variation.

• Recognition by the United States Supreme Court of a constitutional liberty interest of a person in a permanent vegetative state when the desire to die has been clearly articulated prior to the state. Cruzan v. Missouri Department of

Health, 497 U.S. 261 (1990).

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Is There A Right To Die In The Classroom?

• Corey Brown’s mother requested that her 12-year-old daughter not receive chest compressions if she went into cardiac arrest.

• The Lewiston Maine School Board issued a policy that teachers are not to follow a DNR order. They must develop an individually designed resuscitation plan (IRP) to be followed in case of emergency.

• OCR stated that the IRP was not discriminatory. Factors considered: 1) IRP designed by MDT including parent, physicians, and appropriate school personnel; 2) IRP was based on expert medical and other relevant information, and appropriately documented; 3) school required a second medical opinion; and 4) IRP was of limited duration, ensuring that it would be re-evaluated periodically.

21 IDELR 83 (July 28, 1994)

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A Right to Die in the Classroom?

• Iowa’s Attorney General issued an opinion that stated that DNR orders could not be accommodated in the school setting.

• The Maryland Attorney General states schools must act in accordance with DNR Orders in Maryland—which as of 2007 do allow authorization of DNR orders in schools (minors) when specific procedures are followed.

• Seems to be increasing acceptance around USA of allowing DNR orders in schools by EMS responders.

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And in the courts:

• In ABC School and DEF School v. Minor M., school refused to comply with DNR order and filed a complaint in state court seeking declaratory and injunctive relief in the form of an order allowing the school to refuse.

• Court ruled in favor of the parents, stating that the parents had a constitutional right to refuse medical treatment of the child.

• The school’s argument that this was an undue burden was not supportable; the nurse had no real medical decisions to make—the order was very specific.

• The school’s request for a declaratory judgment protecting the ABC School personnel from liability in the event that they violate the DNR order was flatly rejected by the court as an attempt to “constitute an end-run around this court’s denial of the request.”

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What Is The Status In Washington?

• Washington State School Directors’ Association (WSSDA) issued guidelines on responding to medical emergencies:

• District is not qualified under law to comply with directive to physician limiting medical treatment and will not accept them.

• Staff have affirmative duty to aid an injured student and act in a reasonable and prudent manner in obtaining immediate care.

• Staff who exercises his/her judgment and skills in aiding an injured person during the school day or during a school event is protected by the district’s liability insurance except when the individual is operating outside the scope of his/her employment or designated duties. Sample Policy 3431 Emergency Treatment, WSSDA Policy News (December 1992).

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Washington continued

• Washington State Board of Nursing recommends that school nurses should resuscitate all students in school.

• AG opinion states that the Natural Death Act is applicable to adults only and that the statute would need to be amended to allow EMS to honor DNR orders for minors.

• It acknowledges that there are other avenues for individuals to refuse emergency treatment.

• Seems to imply that the Natural Death Act could be interpreted to include honoring DNR orders for children in settings other than those included in the law.

• However, does not clearly address educators honoring DNR orders in the schools, nor give “permission” for EMS to honor DNR orders in the school setting.

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What are the consequences of allowing a child to die in school?

• Educators asked to make decisions with no professional training and minimal guidance.

• Raises moral and ethical issues for educators.• Raises concerns of the rights of the child.

• Potential abuse of the child by the parent/guardian.• Right to be free of discrimination based on disability.• Right to services in a least restrictive environment.• Raises potential liability of staff and district if no legal

authorization to honor such a request.• Impact on other students.

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Is Science Ahead Of The Law?

• Some parents, EMS personnel, and educators argue that because children with DNR orders are now in community settings, advance directives should follow them.

• However, this is contrary to clear legal authorization in Washington State.

• Professionals and/or parents may believe this limitation infringes on the rights of children and/or parents, and advocate for change.

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What Are The Policy Change Options?

• Maintain the status quo--i.e., authority with the medical profession only in specific locales.

• Change the law• Authority to educators to honor DNR orders.• Authority to EMS to honor No CPR directives for

children.

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Third Party Payors

• The general rule is that the school district is ultimately responsible to ensure FAPE is provided.

• That was interpreted to mean that schools pay for all necessary related services while child is at school until mid 1990s.

• Under 1997 amendments, Medicaid and other public agencies providing certain designated services clearly have primary financial responsibility for eligible children even while in school—i.e., schools are payors of “last resort.”

• IDEA now also requires that states develop interagency agreements or other mechanisms for interagency coordination.

• If responsible public agency fails to pay for such services, LEA may then “claim reimbursement for the services from the public agency that failed to provide or pay for such services…”

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Paying For Related Services:Funding Options

• Schools cannot charge parents for the cost of any related service required by their child.

• Schools are not required under IDEA to pay for the related service.

• Schools must ensure that the child receives the necessary devices or services, but may purchase, lease or otherwise provide for the related service.

• There are alternative third party funding sources.

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Medicaid

• Services eligible for Medicaid reimbursement must be diagnostic, evaluative or rehabilitative in nature and medically necessary.

• If the device is medically necessary and covered by Medicaid, then under 1997 IDEA amendments, Medicaid is the payor of first resort.

• Under Washington law, schools are required to pursue Medicaid reimbursement for students who are eligible.

• Periodically, CMS has attempted to change the Medicaid funding authorized for school related services—i.e., cost sharing between CMS and the schools.

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Private Insurance Coverage

• Parents cannot be forced to use private insurance if this would deprive them of benefits under these policies—e.g., effect the annual or lifetime caps

• 1997 Regulations authorize use of private and public insurance to pay for special education services.

• Parents must provide consent each time school seeks insurance.

• Must tell parents that refusal not to consent does not relieve school of obligation.

• Inform parents of consequences of using personal insurance.

• Washington law guidelines must be followed by school districts if they accept reimbursement from a child’s private insurance.

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State Licensure Laws or State Practice Acts

Regulate the practice of:• Nursing• Medical• Other health professions, such as licensed

physical or occupational therapists.

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Delegation

is the transference of the authority to perform a selected nursing or other health task or care to a competent individual in a selected situation.

• The nurse or other health professional, such as a licensed physical or occupational therapist, retains responsibility and accountability for the delegation.

• Nurse Practice Act addresses delegation to unlicensed individuals, including training, supervision and evaluation required.

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Supervision

Regulations define levels of supervision:• Immediate Supervision• Direct Supervision• Indirect Supervision• Consulting Capacity

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Questions to ask concerning delegation:

• Is this a nursing task under state law?

• Can this task be performed by a non-licensed person under the supervision of a RN?

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Implications of State Professional Practice Acts and Delegation for Educators

• When the performance of a health care related task has been delegated by a nurse or other health professional to a nonlicensed person, it is inappropriate for the nonlicensed person to train another unlicensed person, i.e. another educator, in the performance of that task.

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While a physician may order or prescribe medications, treatments, and tests,

the school nurse carries out the order and provides the formal training, delegation, and supervision for that procedure. Therefore, it is inappropriate for an educator to take orders directly from a physician, without the delegation and supervision of the nurse.

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The Washington State Office of Superintendent of Public Instruction Document

entitled “Staff Model for the Delivery of School Health Services", dated April 2000, states:

• “Nursing care can only be delegated by the RN within the regulations and guidance of the Nursing Care Quality Assurance Commission.”

Parents can and do provide nursing care for their child; however, they may not delegate nursing care to unlicensed school staff.

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When a parent requests a school to provide nursing care,

• a registered nurse performs an initial health assessment, determines what level of staff (licensed vs. non-licensed) will provide the care, and provides appropriate training and supervision to the staff member.

• Parents must be consulted and kept informed in this process.

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If a parent provides the nursing care at school,

• the nurse and/or district staff will provide necessary assistance to the parent.

• If the district hires the parent to provide the care, the parent is then an unlicensed employee of the district and functions under the training and supervision of the registered nurse.

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Parents may not train a paraeducator in a nursing procedure

unless the supervising nurse is present and approves in writing that the paraeducator is adequately trained and can perform the procedure under registered nurse supervision.

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When nursing care must be provided to a student during the school day,

• it must be provided by an LPN or RN or be appropriately delegated by a registered nurse. When it is not known if a procedure is a nursing procedure, RN must make that determination.

• Nursing care cannot be delegated or supervised by those who are not registered nurses.

• Non-licensed school staff (e.g. principals) may not delegate nursing care to other non-licensed school staff.

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What is your Liability as an Educator or Can I be Sued?

• Public schools must serve all students—cannot refuse to serve children under IDEA.

• Schools cannot ask parents to sign a waiver of liability. • OCR states that this is discrimination since schools

do not ask other parents to waive liability for their children.

• Parents cannot waive their child’s right.

• Educational units and employees are generally not liable for unforeseeable accidents, but are liable for negligence.

• Educators who are members of WEA automatically receive personal liability insurance.