Deaf - L:  Schools must pay disabled's care costs
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From: Michael Yared <myared@EROLS.COM>
Subject:      "Schools must pay disabled's care costs"
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"Schools must pay disableds' care costs
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By Joyce Howard Price and Andrea Billups
THE WASHINGTON TIMES 3/4/1999
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The Supreme Court ruled yesterday that public school districts must pay for
one-on-one continuous nursing care for some disabled students, a decision
that could cost schools nationwide $500 million per year.
     The court's 7-2 ruling came in the case of an Iowa teen-ager who is a
quadriplegic in a wheelchair and depends on a ventilator to breathe. The
justices said the federal Individuals With Disabilities Education Act (IDEA)
requires the school district to pay for Garret Frey's daily nursing care
because it does not need to be performed by a physician.
     Public school officials said the ruling could overburden
taxpayer-funded school budgets.
     Said Lew Finch, superintendent of the Cedar Rapids Community School
District where Garret is enrolled: "This is a landmark case that's going to
have a tremendous effect nationwide. ... It will drive up the costs of
public education substantially."
     D.C. Schools Superintendent Arlene Ackerman said the ruling could
further strain the school system's tight finances.
     "It's another underfunded mandate," Mrs. Ackerman said at a luncheon
yesterday at The Washington Times. "It could have potentially serious fiscal
implications."
     Justice John Paul Stevens wrote the majority opinion, joined by Chief
Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin
Scalia, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.
     "It is undisputed that the services at issue must be provided if Garret
is to remain in school. Under the statute ... the District must fund such
'related services' in order to help guarantee that students like Garret are
integrated into the public schools," the court said.
     Justices Clarence Thomas and Anthony M. Kennedy dissented. Justice
Thomas said the ruling "blindsides unwary states with fiscal obligations
that they could not have anticipated."
     IDEA says all disabled children must receive a "free appropriate public
education." The court decided that Garret's nursing care falls under the
law's "related services" provision, which qualifies for tax funding, rather
than medical treatment, which does not.
     Garret was paralyzed from the neck down in a motorcycle accident at age
4. His daily health care includes urinary catheterization, suctioning of his
tracheotomy, providing food and drink, repositioning in his wheelchair,
monitoring his blood pressure and someone familiar with the various alarms
on his ventilator.
     "Someone needs to be within earshot in case he stops breathing, though
that's never happened since 1993" when the Frey lawsuit was filed, the boy's
attorney, Douglas Oelschlager, said yesterday.
     Those services had been provided by a licensed practical nurse paid
through an insurance policy and some of the $1.3 million settlement from the
accident.
     Cedar Rapids school officials said Garret's nursing care is so involved
and so expensive it should be considered medical treatment. But a federal
appeals court, and yesterday the Supreme Court, disagreed.
     "We're very disappointed by the decision ... it stretches credulity to
call all-day nursing services an educational cost," rather than a medical
cost, said Bruce Hunter, spokesman for the American Association of School
Administrators, which had been watching the Frey case closely.
     Julie Underwood, general counsel for the National School Boards
Association, which filed a brief supporting the Iowa school district, said
local school systems will feel the brunt of this decision.
     "The U.S. Department of Education says that, throughout the country,
there are 17,000 severely medically challenged students who depend on more
intensive technology. Providing nurses for each of them -- at the $30,000 a
year salary paid in Cedar Springs, Iowa --would cost more than $500
million," said Miss Underwood.
     In Montgomery County, Md., where about 10 severely disabled pupils
require one-on-one nursing care, Director of Special Education Ray Bryant
said it's too soon to tell how the high court's decision will affect his
128,600-student school system.
     Mr. Bryant, surprised by the ruling, said nurses for Montgomery's
special education students are provided in collaboration with the county's
health department, which makes decisions about their care.
     "I don't think that any of us ever thought that skilled nursing
services were a school system's responsibility," he said. "This ruling tips
it right into our court that we are ultimately responsible. We'll try to
make it work."
     Small school districts will likely be hardest hit, he said.
     "This could be a devastating decision if you were a small school
system," he said. "The school and the health department would both be
scrambling because there wouldn't be $30,000 or $40,000 there to provide
nursing services."
     Mrs. Ackerman said the District of Columbia will spend more than $165
million on about 12,000 special education students this year. The average
per-pupil cost for special education students who live in the District is
about $17,000 per year; schools pay about $7,000 annually per average
student.
     "It could make the special education budget even more costly," and
force the school system to reorder some of its priorities, she said.
     Miss Underwood of the National School Boards Association said Congress
passed IDEA in the early 1970s, "but then never made good on its promise to
fund special education."
     She said "local school districts shoulder over 50 percent of the costs
of special education," while the federal contribution is only 7 percent.
     "Local districts are going to have to look to Congress to fund the
mandate this decision has placed on them," she said.
     Justice Stevens acknowledged that the school district "may have
legitimate financial concerns" in providing daylong, individual nursing
care.
     But he said the court's only role was to interpret federal law.
     "This case is about whether meaningful access to the public schools
will be assured, not the level of education that a school must finance once
access is attained," he wrote, adding:
     "Congress intended to open the door of public education to all
qualified children and required participating states to educate handicapped
children with non-handicapped children whenever possible."
     Mr. Finch said the Cedar Rapids school district will have to pay "in
excess" of $250,000 for losing this case. The amount includes legal fees for
both sides and retroactive fees the Freys have paid for providing Garret's
at-school nursing care."