Court Says Schools Must Pay Nursing Costs for Disabled

Public schools must pay for one-on-one nursing care in class for a severely disabled child, the Supreme Court ruled Wednesday, siding with parents in a closely watched battle over who will bear the high cost of special education.

“Congress intended to open the door of public education” to children with severe disabilities, regardless of the cost, the justices said.

If a paralyzed child who breathes with a ventilator can succeed in a regular classroom, the school system must pay for the nurse he needs to be there, the court ruled on a 7-2 vote.

Disability-rights activists praised the ruling and said that it will help fulfill the nation’s promise that all children, no matter their limits, have a right to go to school with their peers.

But the National School Boards Assn. said that the high cost of medical services should not be borne by schools alone. Providing in-school nurses for the nation’s 17,000 “medically fragile” children would cost an extra $500 million each year, the school group said.

Bonifacio Bonny Garcia, an attorney for the Los Angeles Unified School District, said the ruling could require the district to hire hundreds of nurses, at a cost of as much as $60,000 each, to allow those disabled students to attend regular classes.

“We will not have the right to say, gee, this is too expensive,” he said.

James Fleming, superintendent of the Capistrano Unified School District in Orange County, estimated that his 42,000-student district may be forced to triple its two-person nursing staff, at a cost of more than $300,000 in funds from its general education budget.

But some advocates and educators said that the projected cost increases arising from the decision are exaggerated.

“The predictions about financial ruin from this case are overblown and, in most cases, these services are already being provided,” said Joan Tellefsen, executive director of Team Advocates for Special Kids, an Orange County agency that trains parents to deal with special-education issues.

Wednesday’s ruling is a legacy of the era when the cause of civil rights united Congress. In 1975, lawmakers passed a sweeping measure that promised disabled children the same right to equality that had been accorded to black students in the 1960s and to girls through the Title IX law of 1972.

And the Individuals With Disabilities Education Act has changed American schools as profoundly as earlier laws and court rulings abolishing racial segregation and assuring girls equal rights to play sports.

A Right to Be ‘Mainstreamed’

The 1975 law said that children with mental or physical impairments are entitled to a “free, appropriate public education.” It also gave them a right to be “mainstreamed” into regular classrooms. No longer could mentally retarded children be excluded from school nor could students in wheelchairs be told to go elsewhere for classes.

But unlike those other equality measures, the high cost of special education has continued to divide parents and school officials.

In particular, they have disagreed over who must pay for the extraordinary services, such as nursing care, that are required for the most disabled of students. The law said that educators need not pay for “medical services,” but the high court has defined that to mean services provided by physicians.

The Los Angeles Unified School District operates 27 schools that have been adapted for children who are severely physically disabled. Each of about 250 health assistants on those campuses, who receive about 20 hours of special training, help children who have a variety of serious problems, such as tracheotomies, colostomies, or the need to be fed via tubes.

In most cases, those aides are assigned to work, one-on-one, with individual students and are supervised by a professional nurse.

Outside the Los Angeles school district, the Los Angeles County Office of Education provides similar services. Della Richardson, a health aide employed by the office, has made it possible for Cory Wisham, 16, of South-Central Los Angeles to attend school in Bellflower for the last four years.

Wisham suffered a stroke at the age of 11, which left him paralyzed except for a small amount of movement in one hand. He breathes with the help of a respirator, which requires regular attention from Richardson.

The sophomore rides a county-supplied bus and attends regular classes for English and health and special education classes for history and science.

Students whose needs are so severe that they would need the care of a full-time nurse rather than the limited services of a health aide are tutored at home. Nancy Lawrence, a special education administrator, said Wednesday that the Los Angeles school district will have to evaluate each of those cases to determine which children might benefit from attending regular classes. About 500 special education students with medical problems such as cancer or severe seizures receive tutoring at home each year, for an average of two months each.

Wednesday’s ruling came on behalf of an Iowa teenager whose spinal column was severed in an accident when he was four.

Like actor Christopher Reeve, the student, Garret Frey, was left paralyzed from his neck down, but his mental capacities were unaffected. At school, he needs a catheter for his bladder, suctioning of his breathing tube and monitoring of his ventilator.

When Garrett began kindergarten in 1988, his mother insisted that the school pay the $30,000 cost of his in-school nurse. The Cedar Rapids School District refused, saying that Garret could not attend school unless his mother paid for his nurse.

Licensed Nurses Not Mandatory

In a decade-long battle, school officials insisted that nursing care was a type of “medical service” and therefore outside the scope of the federal education law.

Disagreeing Wednesday, the high court said that schools must pay for all the routine services and nursing care required by disabled students.

Schools can hire paraprofessionals or aides to provide the service. They need not use licensed nurses. But schools will bear the cost, not parents.

Federal law has promised all the nation’s disabled children “meaningful access” to a public education, said Justice John Paul Stevens. To fulfill that promise, the schools must fund the extra care that will “help guarantee that students like Garret are integrated in the public schools,” he said.

Justices Clarence Thomas and Anthony M. Kennedy dissented in the case before the court (Cedar Rapids School District vs. Garret F., 96-1793). The court’s ruling “blindsides” the schools and will force them to bear an undue cost, they said.

Education officials warned of hard times for already overburdened school systems.

“We worry that school districts will endure a great strain because of today’s decision,” said Anne Bryant, executive director of the school boards association. “It takes the focus of schools away from being educators and into being medical service providers.”

Special education services already are “grossly underfunded” by the federal government, said Sandra Feldman, president of the American Federation of Teachers, with local districts and states forced to dip into their regular budgets to provide mandated services.

“Unless Congress acts to provide adequate funding, it is inconceivable that districts can shoulder the additional cost” required as a result of Wednesday’s ruling, she said.

Larry Belkin, director of the Orange County Department of Education’s special education services, said that Congress promised to pay for 40% of the funding necessary when it passed the federal government’s comprehensive special education programs. In reality, the federal government provides only about 8%, Belkin said, although it requires public schools to provide full education for the nation’s 6 million disabled children.

This year, the federal government will spend $4.3 billion to aid education of the disabled, up from just $100 million in 1975, according to the special education division of the U.S. Department of Education.

“Special education already is underfunded and this is going to impact it even more,” Belkin said.

In California, school districts already provide many nursing services, said Alice Parker, head of special education for the California Department of Education. Those services, however, usually do not include full-time nursing care.

The high court’s ruling also could require school districts to begin providing more elaborate transportation services for severely disabled students.

Tim Walker, the principal of a special education school in Glendale, said in some cases vans would have to be equipped with oxygen and other types of emergency medical services.

“I would think that, if there’s a way of getting these kids to school in a safe manner, without issues of their health being endangered, they would already be going to school,” he said.

But advocates for disability-rights said that the ruling only reaffirms the long-standing law and will more clearly require school districts to comply with it.

Steven Wyner, an attorney who represents disabled students, said that school districts routinely deny requests for one-on-one aides of all types, including nursing.

“The special education administrators in school districts deal with these requests as though they are insurance companies and they just deny this stuff until you just force them to give it to you,” Wyner said.

U.S. Asst. Secretary for Special Education Judith E. Heumann has used a wheelchair since childhood and was denied the right to attend elementary school with her peers.

“Today’s decision reaffirms that we believe in the appropriate policy,” she said. “We believe this decision will help advance the inclusion of disabled children into society. This sends the right message. It says they have a right to get an education in an inclusive setting.”

Justice Stevens, author of the court’s opinion, hired a 28-year-old Harvard Law School graduate with a significant disability as one of his four law clerks this year.

Adam Samaha, who advises the justice and helps with legal research, has dystonia, a disorder that causes sharp muscle spasms in his neck, arms and legs.

Harvard law professor Laurence Tribe said that Samaha “is breath-taking smart,” and he recommended him for a clerkship.

For Mary Sahagun of Garden Grove, the Supreme Court ruling will be a godsend. Her son, Kenny, a third-grader at Patton Elementary School, has muscular dystrophy.

Kenny still is able to walk with little difficulty but the progressive disease will eventually cripple him and drain the life from his heart and lungs.

Sahagun said that her son deserves to have as normal a life as possible and she believes the public school system has an obligation to accept and care for all students, no matter what their physical or mental condition.

“This is wonderful,” Sahagun said of the high court’s ruling. “His school has a nurse who’s there only a day or two a week. Right now, Kenny is doing really well, but he may need more help later.”

Times staff writers Seema Mehta and Phil Willon contributed to this story.