Copyright 1999 Times Mirror Company
Los Angeles
Times
March 4, 1999, Thursday, Home Edition
SECTION: Part A; Page 1; National Desk
LENGTH: 1871 words
HEADLINE:
COURT SAYS SCHOOLS MUST PAY NURSING COSTS FOR DISABLED;
LAW: JUSTICES
ARGUE CONGRESS INTENDED TO 'OPEN THE DOOR OF PUBLIC EDUCATION' TO THE SEVERELY
HANDICAPPED. BUT OFFICIALS POINT TO FINANCIAL BURDEN OF ONE-ON-ONE CARE.
BYLINE: DAVID G. SAVAGE and RICHARD LEE COLVIN, TIMES
STAFF WRITERS
DATELINE: WASHINGTON
BODY:
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.
GRAPHIC: PHOTO: Cory Wisham, left, a sophomore
at Bellflower High School, works with his full-time health care aide, Della
Richardson. Cory, 16, suffered a stroke at age 11 and must use a wheelchair and
a respirator. PHOTOGRAPHER: ANACLETO RAPPING / Los Angeles Times PHOTO: Garret
Frey, at center in foreground, is focus of attention in court decision over
nursing care for disabled. PHOTOGRAPHER: Associated Press
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