Morton Community Unit School Dist. No. 709 v. J.M.

• Decision Date: 27 July 1998
• Docket Number: No. 97-3962,97-3962
• Citation: 152 F.3d 583
• Parties: 128 Ed. Law Rep. 972 MORTON COMMUNITY UNIT SCHOOL DISTRICT NO. 709, Plaintiff-Appellant, v. J.M., a minor, and M.M. and S.M., individually and as parents and next friends of J.M., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 583

152 F.3d 583

128 Ed. Law Rep. 972

MORTON COMMUNITY UNIT SCHOOL DISTRICT NO. 709, Plaintiff-Appellant, v. J.M., a minor, and M.M. and S.M., individually and as

parents and next friends of J.M., Defendants-Appellees.

No. 97-3962.

United States Court of Appeals, Seventh Circuit.

Argued May 15, 1998.

Decided July 27, 1998.

Michael J. Tibbs (argued), Miller, Hall & Triggs, Peoria, IL, for Plaintiff-Appellant.

Janet M. Cartwright, Rock Island, IL, Karen I. Ward (argued), Chicago, IL, for Defendants-Appellees.

Before POSNER, Chief Judge, and FLAUM and DIANE P. WOOD, Circuit Judges.

POSNER, Chief Judge.

The Individuals with Disabilities Education Act grants federal financial assistance for the education of disabled children to all states that agree (as all have) to provide such children with "a free appropriate public education that emphasizes special education and related services designed to meet their unique needs and prepare them for employment and independent living." 20 U.S.C. § 1400(d)(1)(A); see also § 1412(a). The statute defines "related services" to mean "transportation, and such developmental, corrective, and other supportive services (including speech-language pathology and audiology services, psychological services, physical and occupational therapy, ... social work 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." § 1401(22). We are quoting from the Act as it was amended in 1997, and this case arose earlier and may be subject to the previous version, but that is of no consequence as none of the amendments bears on the issue presented by the appeal.

The Department of Education has issued a regulation that largely repeats the statutory definition of related services, except that where the statute says "medical services, except that such medical services shall be for diagnostic and evaluation purposes only," the regulation says simply "medical services for diagnostic or evaluation purposes" and adds: "The term also includes school health services." 34 C.F.R. § 300.16(a). The regulation goes on, however, to define "medical services" as used in 20 U.S.C. § 1401(22) to mean "services provided by a licensed physician to determine a child's medically related disability that results in the child's need for special education and related services," and "school health services" to mean "services provided by a qualified school nurse or other qualified person." 34 C.F.R. §§ 300.16(b)(4), (11). This appeal requires us to consider the scope of the "medical services" exception to the obligation of a state to provide "related services" to disabled children. The issue is at present before the Supreme Court in a case quite similar to ours. Cedar Rapids Community School District v. Garret F., 106 F.3d 822 (8th Cir.1997), cert. granted, --- U.S. ----, 118 S.Ct. 1793, 140 L.Ed.2d 934 (1998). But it will not be argued until the Court's next Term; and the Court may base its decision on a ground that does not rule our case; so we have thought it best to go ahead and decide our case now.

J.M. is a 14-year-old who suffers from severe congenital defects as a result of which he breathes through a tracheostomy tube (enabling him to breathe through an opening cut into his windpipe, rather than through his nose or mouth) with the intermittent aid of a portable ventilator system. The system requires continuous monitoring, as well as frequent adjustments and suctioning to maintain a smooth flow of oxygen, clear out plugs of mucous, and keep his lungs free from fluid buildups. Because he cannot close his eyes, he requires the application of an ointment to his eyes every hour to prevent corneal abrasions. His mobility is limited; he is normally wheelchair-bound, although he can walk a little with the aid of a walker. His growth has been stunted, and he has learning disabilities, as well as difficulty in speaking because of the tube in his neck. For him to be able to function in school--indeed, for him to survive the school day--he must be accompanied either by one of his parents, both of whom have been trained to attend to his needs, or by a nurse. The attendant must devote his or her full attention to J.M., and cannot assume any other duties. His lungs must be checked by stethoscope every couple of hours and suctioned every hour and a half or so, and the oxygen tank must be changed about as often; the rest of the time he must be watched to make sure that the ventilator doesn't become disconnected.

J.M.'s parents want the school district to pay for a nurse to attend J.M. while he is in school, which under the special-education program that has been designed for him is four hours a day, four days a week, during the school season. The cost would be about $20,000 a year. There is no question that J.M. benefits educationally and psychologically from school, but he cannot attend unless he has an attendant at all times. In fact he has a nurse, paid for by his father's employee health plan; but there is a lifetime limit on the amount of benefits payable for J.M.'s care under the plan, and that is why the parents want the school district to pick up the tab for the nurse during school hours. Two successive hearing officers held that the nursing care that J.M. needs at school is a related service within the meaning of the Act and not an excluded medical service. The district court agreed, precipitating this appeal by the school district.

Both parties take extreme positions. The parents argue (admittedly with support from Garret F.) that "medical services" are services rendered by a licensed physician; any other service that is necessary to enable a disabled child to benefit from an education is a nonexcluded related service that must be provided free of charge no matter what the character or expense of the service; their lawyer actually argued to one of the hearing officers that "the sky is the limit." On the view that the parents take, if for J.M. to benefit from education the school would have to build a bubble chamber for him and staff it with a team of technicians and registered nurses this service would not be a medical service as long as the onsite team did not include a licensed physician; if it did, presumably only his fee would be excluded from the school district's obligation to pay for related services.

This position is unrealistic about the nature of the modern provision of medical services, most of which, as a matter of economy and specialization, are provided by nurses, nurses' aides, paramedics, medical technicians, medical students, the patients themselves, and members of the patients' families, rather than by physicians. J.M. belongs to the category of children known as "medically fragile" or "technology dependent"--children who in earlier times would not have lived to school age but who today are kept alive by drugs or medical appliances administered largely by nonphysicians. See generally Ann Rozycki, "Related Services under the Individuals with Disabilities Education Act: Health Care Services for Students with Complex Health Care Needs," 1996 Brigham Young U. Educ. & L.J. 67.

The parents rely on the Department of Education's regulation defining medical services as those provided by a physician. Read in its most natural way, the regulation seems merely a reminder that diagnostic services, even when provided by a physician, are not excluded medical services. It does not appear to be a comprehensive definition of medical services. Cf. Board of Education v. Rowley, 458 U.S. 176, 188, 102 S.Ct. 3034, 73 L.Ed.2d 690 (1982). But in an amicus curiae brief opposing (unsuccessfully) the grant of certiorari in the Garret F. case, the Solicitor General represented to the Supreme Court that it is the position of the Department of Education that "supportive services not provided by a licensed physician may be required if they are necessary to aid a child with a disability to benefit from special education." Brief for the United States as Amicus Curiae in Cedar Rapids Community School District v. Garret F., No. 96-1793, O.T.1997, p. 16 n. 9 (Apr. 22, 1998). In the words "may be" and in the further statement that "each situation must be examined on a case-by-case basis," id., the Department's position as paraphrased in the Solicitor General's brief falls short of declaring that the services involved in our bubble hypothetical should be deemed "related" but not "medical." The general tenor of the brief, however, is that the cost and character of the services are irrelevant; as long as the services are genuinely necessary to enable the disabled child to benefit from an education and cannot be provided outside of school hours, the school district must pick up the tab. See, e.g., id. at 18-19.

The interpretations that the Department of Education places on its own regulation are entitled, of course, to some measure of judicial deference, Lyng v. Payne, 476 U.S. 926, 939, 106 S.Ct. 2333, 90 L.Ed.2d 921 (1986); Skandalis v. Rowe, 14 F.3d 173, 177 (2d Cir.1994), even when expressed informally, in a letter or a brief. Id. at 179; see Martin v. OSHRC, 499 U.S. 144, 157, 111 S.Ct. 1171, 113 L.Ed.2d 117 (1991); Auer v. Robbins, 519 U.S. 452, 117 S.Ct. 905, 911, 137 L.Ed.2d 79 (1997); Massachusetts v. FDIC, 102 F.3d 615, 621 (1st Cir.1996). But the Department's interpretation of "medical services," even as described by the Solicitor General, is not so definite or precise as to rule the bubble hypothetical. Moreover, the description is inaccurate. The opinion letters are evasive. Typical is Letter to Anderson, 24 Ind. Dis. Educ.L. Rep. 180 (Feb. 22 1996), which states: "The determination as to whether a school district must provide one-to-one nursing services [i.e., a fulltime attendant] to a student with a disability in a public school setting must be made on a...