Cedar Rapids Comm. Sch. Dist. v. Garret F. and Charlene F. - Oral Argument

Argument of Susan L. Seitz

Chief Justice Rehnquist: We'll hear argument next in Number 96-1793, Cedar Rapids Community School District v. Garrett F..

Ms. Seitz.

Mr. Seitz: Mr. Chief Justice, and may it please the Court:

The Federal statute, the Individuals With Disabilities Education Act, specifically provides that school districts are not required to provide medical services to students except for evaluation and diagnostic purposes.

Therefore, the fundamental issue in this case is whether nursing services which must be continuous and exclusive for one student constitutes medical services.

When we go to a physician's office and we see a nurse, and the nurse gives us an injection, we certainly think we're getting a medical service.

Similarly, if we go to a dialysis clinic and a technician administers dialysis we think we're getting medical services.

Justice Ginsburg: Ms. Seitz, I follow what you're saying, but we do have the Tatro case, and I would have said in one sense the CIC is a medical service, so it seems to me, at least from your brief, that you're not resting on the character of the care that's rendered... is it a catheter, or what it is... but the volume of it and the cost, so it's... the nature of the service seems to be not part of your calculus.

In other words, if you took this string of care-giving and you broke it down and you just had one, would you say, oh, that's not... that's a medical service, it's not diagnostic?

Mr. Seitz: Justice Ginsburg, catheterization, even clean intermittent catheterization, is also commonly thought of as a medical service.

However, we have to find a balance between those things that are the broad medical service and those things which are school nursing services which are required under the regulations as a related service, so somehow we have to find a test that will be, what is a school health service provided by a school nurse versus those things that are just generally thought of as medical?

Certainly, CIC, as this Court found, was a service that could be provided by a school nurse in a short period of time.

In fact, Amber Tatro was the young girl and was quickly going to be able to...

Justice Ginsburg: But my question to you is, are you saying every one of these services on the list fits within the medical service exception, or they do cumulatively but not individually?

Mr. Seitz: Justice Ginsburg, we're saying they do cumulatively, because obviously the Cedar Rapids Community School District does provide clean intermittent catheterization to other students.

They also section tracheostomies for other students.

But the difference is, those are services that can be done by a school nurse, or someone trained by the school nurse, versus having to hire a person full-time to attend to that child all day.

Justice Kennedy: Well, so you stipulate that the tracheotomy procedure is... can be a nursing service?

Mr. Seitz: Yes, Your Honor.

The... if it was just... in fact, we have other students in the Cedar Rapids District who have suction of tracheostomy tubes.

That by itself could be done by a school nurse, and that school nurse could continue to perform his or her other functions.

The difference with Garrett is that he needs continuous monitoring and assessment to make sure that he's not in respiratory distress, and at that point then the school nurse cannot perform those functions.

There are only six nurses in Cedar Rapids.

Chief Justice Rehnquist: It's not because the nurse lacks the competence, I take it, but just because she's charged with a number of other responsibilities as school nurse.

Mr. Seitz: Mr. Chief Justice, that would be correct.

Justice Souter: Well, isn't it also...

Mr. Seitz: I'm sorry.

Justice Scalia: It just depends on how many school nurses you have.

I mean, if you have enough school nurses, it's no problem.

Mr. Seitz: Actually, Your Honor, you would have...

Justice Scalia: It's sort of hard to think that, you know, that that makes a difference in the nature of the service.

Mr. Seitz: Your Honor, I don't believe it makes a difference in the nature of the service.

It's either medical or it's not medical, but we need to find a way to give credence to the agency definition of school health services, which we are not contesting that school health services are related services.

However...

Justice Souter: Well, but you... it seems to me you, even on that assumption you've got a problem, because the testimony in the case was, as I understand it, that you don't even need a nurse to do this.

My recollection is that the ALJ found that any, you know, competent person could be trained to do these things.

The reason, as I understand it, that a nurse would be required in Iowa is because the Iowa nursing regulations so provide, but it seems to me that's Iowa's problem and it doesn't have anything to do with the way we should draw the definitional line under the statute.

So that even on your assumption, that the statute said in effect, or meant, that continuous service by a nurse would be within the exclusion, that in fact is not the case here except under the Iowa regulations, and surely the Iowa regulations can't govern the meaning of the Federal statute.

Mr. Seitz: Your Honor, first, you're correct that the Iowa Board of Nursing did rule his care needed to be provided by a nurse.

However, the services that could be delegated, even to a lay person, are clearly medical services that would typically be either performed or supervised by the nurse.

Justice Souter: Okay.

Then the criterion then is not the continuous nature of the service or the, in effect the ultimate cost, it is in a more strictly analytical sense it's the kind of service itself.

Mr. Seitz: We're proposing a multi-factored test, Your Honor, that would be both...

Justice Ginsburg: And then you... you seem to be going back on what I thought was very candid and clear of you earlier when you said, if we took each one of these, the tracheotomy, each one separately, it would be a related service that wasn't within the medical exception, but when you cumulate them altogether, it's the all-day, continuous, that makes it medical service, so it seems to me you were not... your line depends upon duration and expense, and not the character of the individual services...

Mr. Seitz: Your Honor...

Justice Ginsburg: in the package.

Mr. Seitz: I'm sorry.

Your Honor, we need to determine the character first to determine whether it's medical.

Then we need to apply other factors to see if it comes under the school health.

Justice Kennedy: But I thought you told me there was not medical in the event of, say, the tracheotomy.

Mr. Seitz: No... excuse me?

That it is medical...

Justice Kennedy: The tracheotomy is not medical, I thought, because nurses routinely do this.

Mr. Seitz: Excuse me.

It would still be a medical service, but it would come under the school health rather than the medical services exemption.

I'd also like to come back to Justice Souter's comment about State licensure.

Even the physician-nonphysician bright line would come down to a State licensure issue, because States obviously allow nurse practitioners, they allow physician assistants to perform services, so even under the physician-nonphysician there's going to be some looking at State statutes.

Justice Souter: Well, that's right, but because on the assumption of the bright line test, what the bright line is drawn between is what, I presume, in fact doctors do and what, in fact, nurses do, but it seems to me that that doesn't necessarily implicate the point that I was trying to make earlier.

Mr. Seitz: Your Honor, if, in fact, it were physician-nonphysician bright line, it's difficult to comprehend how there would be any meaning given to the statutory exclusion.

What services would a physician...

Justice Souter: Well, I don't understand that.

I mean, we would look to see who's doing the procedure, and if in your State nurses are doing it, that would be the end of the issue.

Mr. Seitz: But what physician services would be necessary during a school day, at school, to enable a child to benefit from education.

If it really is, it's only physician services, we render that statutory provision meaningless.

Physicians see patients in clinics, in doctor's offices, in hospitals.

Justice Souter: Well, it would mean that if there is some procedure that can only be performed by a doctor, and a doctor would have to come in once a day to do it, and it was not diagnostic, et cetera, then it would be excluded.

I don't know how many such procedures there might be, but certainly the test would have meaning.

Mr. Seitz: Your Honor, we cannot conceive of any procedure that a physician would have to come in and perform for a student during...

Justice Ginsburg: Then what gave Chief Justice Burger the misimpression which he evidently had on your argument?

He said, I understand this line because doctors are expensive and hospitals are expensive, so he must have thought that without this exception some things that doctors only do and some things that are done only in the hospital could have been covered.

Mr. Seitz: Justice Burger in the Tatro case indicated that CIC could be done by a school nurse or a lay person.

Justice Ginsburg: Yes, but when he talked about where the line is drawn, he said, doctors cost a lot of money and hospitals cost a lot of money.

Now, you are now telling us that doctors and hospitals just don't fit into this picture, so was he wrong in the impression that he had that they somehow would have but for this medical services exception?

Mr. Seitz: No.

We are in agreement with Justice Burger that they carved out physician's services because of cost, but we also believe that medical services was never intended to mean only physicians.

Certainly one-on-one nursing all day... this case indicates $20 to $30,000 a year... could be more costly than a physician.

Justice Ginsburg: But you're recognizing that he wasn't dealing with an imaginary case when he thought that doctors and hospitals could have been part of this picture.

Mr. Seitz: That doctors and hospitals could be part of the included services, or...

Justice Ginsburg: If but for this exception, because he mentioned them in his opinion.

He said, you see, those things are very expensive, so I understand that Congress wouldn't want them to be covered.

Mr. Seitz: I believe Justice Burger said that the agency definition of included services which made a distinction between physicians and nonphysicians, and then went on to say in Tatro that they have carved out physician's services because it added additional expense to districts.

But in fact if we use that analysis, the additional expense to districts of intensive nursing services would be greater than what an intermittent physician's service could be.

We also have to remember that this Court decided in the Rowley case in 1982 that the IDEA was in the nature of a contract with the States and, as such, that any conditions attached to the funding must be unambiguously stated.

This is particularly true in education, which is traditionally left to States and localities.

Congress did not specifically list in section 17 that nursing services would be provided, and we would have to assume that there is some indication in the act itself that felt... they did not think it should be provided.

If you look at the literal language of the statute it says that all corrective, developmental, and supporting services needed to allow a child to benefit from education is included, and then it has some medical service exclusion.

But Congress went on and gave some specific listings such as physical therapy, occupational therapy, social work services, psychological services.

If Congress had intended for medical services to be a narrow definition of physical physician's services they would not have needed to list all those specific ones, because it would have been covered under any supportive service.

However, a better interpretation would be that they intended a broad definition of medical and then listed those in order that they would be provided.

Justice Kennedy: Well, if you are saying that the act imposes just a reasonable burden but not an extensive burden on the States, we could argue on that.

As I understood the case, I was going to be asked to determine whether or not this was a medical service, and it seems to me that the two are different questions.

Mr. Seitz: Whether one-on-one nursing is a medical service, Your Honor?

We believe that any... any definition of medical services, whether you look to the Internal Revenue Code, where you look to Worker Comp, have always viewed private duty type nursing as a medical service, and suddenly we're asking in this statute to give it an uncommon meaning and say, no, medical means only physicians.

Justice Scalia: Oh, I would assume nonprivate duty nursing as well.

I mean, what I... I can understand the reasonableness of your position when you say that nursing services are medical services, but you don't say that.

You say, we can do CIC, and the trouble is, we can't do too much of it, and I don't know that the word medical has anywhere in it the distinction between... a distinction in volume.

If you do more of it, it becomes medical.

If you do less of it, it's not medical.

It's either medical or not.

I mean, CIC is either medical or not, so you... it seems to me you have to say nurses... you know, nursing services, at least CIC, is not covered.

Mr. Seitz: Justice Scalia, actually I don't think there's any question that CIC is a medical service in common understanding.

However, we...

Justice O'Connor: Well, but we had the Tatro decision, and it said that was not a medical service.

I mean, we dealt with that, so you have to come to grips with that, I think.

Are you asking us to modify, or...

Mr. Seitz: Justice O'Connor, we're in agreement...

Justice O'Connor: overrule Tatro?

Mr. Seitz: We're in agreement with the result of Tatro.

We're not asking you to overrule the result in Tatro.

We do believe that the Department of Education could legitimately say to school districts, you have school nurses, and they should provide some school health services.

They are still medical services, as Justice Scalia...

Justice O'Connor: But that isn't what the Department has said.

The Government doesn't support your position, the Federal Government, and you're asking us to say that continuous nursing services are medical services...

Mr. Seitz: Yes, Your Honor.

Justice O'Connor: But broken down and doing it intermittently they're not, and that's a very hard line to draw, as Justice Scalia has pointed out.

I don't think it's going to work.

Do you have a fall-back position?

Mr. Seitz: Your Honor, we believe that if we allow a multi-factor test to be used, where you can determine whether school nurses who traditionally serve hundreds... in fact, the ratio is 1 to 3,000 students... can do the services, that it would be treated as a school health service under the regulations.

I agree that it would be easier to say it's either all medical or not medical, but this Court in Tatro determined that the school health service regulation was a reasonable regulation, so therefore we have to find where is the limit drawn when it quits being a reasonable school health service and becomes a medical service, and that's why we have proposed the multi-factor test at looking at...

Justice Ginsburg: You keep saying multi-factor test, but it seems to me in all candor that your argument comes down to, all day is too much, and we have brackets on this target.

CIC, once a day, twice a day, not too much, all day, too much, and then there may be cases in between.

But it seems to me what you're arguing is the all day is the other extreme, and so it's duration, all day is the most it could be, and expense, because it's all the hours of the day.

So you keep talking about multi-factor tests, but we have this case, and I'm trying to understand your position.

It isn't based on the character of the care, but it's duration and expense.

Mr. Seitz: Yes, Your Honor.

That becomes the determining factor.

Once you determine that the character of the care is medical... which I think as Justice Scalia pointed out, even CIC, it's either medical or it isn't... once you determine that it's medical, then you need to make that multi-factor.

However, I agree that I cannot conceive of any situation where it's continuous care that would not make it fall under the medical services exception.

Justice Souter: Well, I thought the simple requirement to have an attendant of any sort would be a continuous care requirement.

Mr. Seitz: That's correct.

Justice Souter: But it wouldn't... it certainly wouldn't be medical.

Mr. Seitz: They'd still be performing medical functions.

Assessing whether he's in respiratory distress, suctioning a tracheotomy, catheterizing the student, positioning the student...

Justice Souter: No, but I thought your statement was merely that any continuous care that might occur in a situation like this would be medical, and in fact he's getting continuous care right now, isn't he?

Mr. Seitz: I'm sorry, that's because the continuous care that he's getting... you're referring to the educational associate the district's providing...

Justice Souter: Yes.

Mr. Seitz: that helps him move about the building, manipulate materials.

That's because that's being provided under the special education section, not the related service.

Justice Souter: But if it were being provided under this section, that would be medical, too.

Mr. Seitz: If it were being provided as a related service.

If you look at the other...

Justice Souter: Well, it would be provided as a related service, wouldn't it?

Mr. Seitz: You mean now the educational continuous care, or the nursing continuous care?

I'm sorry.

Justice Souter: The... I'm not sure that I have the proper term, but I thought there was some individual who attended this student at all times...

Mr. Seitz: There are actually two...

Justice Souter: to move around, and so on.

Mr. Seitz: There are actually two individuals who attend this child all the time.

There's one provided by the school district, who...

Justice Souter: Okay.

Mr. Seitz: helps him with his materials, raise his hand, move him about the building.

Justice Souter: If that were provided under this section, would you call that medical service because it was continuous?

Mr. Seitz: I don't know how to answer that, because it's purely an educational...

Justice Souter: Well, I thought you had said earlier that if in fact the service is continuous, you really couldn't conceive of a service that would not therefore be medical, and I'm saying, if it were provided under this section it would be medical, then, on your test, wouldn't it?

Mr. Seitz: Actually, no, Your Honor, because you first have to make the initial determination of what the nature of the care is, and if he's helping him move materials, raise his hand, manipulate the computer, nobody's arguing that's a medical service.

Justice Souter: Okay, then continuity is not itself a criterion, and the only thing that continuity goes to, I guess, is the likelihood of the expense which is going to follow the continuity, is that about it?

Mr. Seitz: Your Honor...

Justice Souter: It's a bottom line test.

Mr. Seitz: No, I don't think that's it.

I think you have to first make the nature test, and then you have to go to the continuity.

Justice Scalia: But you're not really willing to do that, because you're not willing to say that all services involving the physical well-being of a student that are provided by nurses or anyone else, you're not willing to say that they're medical services.

Mr. Seitz: Actually I think they are medical services for determining the nature, but we also need to look at the school health service...

Justice Scalia: Yes, but I'm talking about medical services within the meaning of the statute.

That's the only...

Mr. Seitz: Actually, the easiest argument would be that all medical services that are traditionally thought of are medical, are medical and are excluded and the school health service goes too far.

Okay, the other thing that we would like to point out is that the other things on the list of the related services such as OT, physical therapy, social work services are all intermittent care.

They're not continuous care.

I think that gives some indication of Congress' intent when they use the term medical, that they did not mean for it to be continuous services.

Also, unfortunately the legislative record does not give us much of a discussion of why medical services was ever put into the act.

In fact, when it was first proposed in bill form Senate 6 and the House file included medical services.

It was then excluded, but there's no discussion in the record of why.

But there was a lot of discussion of the cost of special ed, so I think the only plausible explanation can be that Congress did not want school districts to intrude into areas they had not historically performed that had historically been paid by other payers, which would also give some legitimacy to a broad definition of medical services.

Justice Ginsburg: On that, in your response to Justice Scalia are you saying that we should overrule the Tatro case, because that's what you seem to be saying if you say that all of these are really medical service.

Mr. Seitz: They are.

All of those services are really medical services, but we don't believe you have to overrule Tatro to get to the result in our case, because there was already deference given in Tatro to the school health regulation, and school districts can do the school health regulation, but they need guidance on what they're to do beyond those simple services that can be done on an intermittent basis by existing personnel.

Justice Scalia: You're saying we went as far as we did in Tatro only because there was a regulation that pushed us that far, and that the regulation doesn't push us any further.

Mr. Seitz: That's correct, Justice Scalia.

Okay.

Also the regulations themselves, which even the Department of Education has not interpreted as requiring a bright line test until this particular case surfaced does give us some indi... even if we follow those regulations, does give us some indication that continuous one-on-one service were not required.

Justice Souter: May I go back to your assertion about the regulations?

One of the appendices has the so-called 1996 letter in it, and that certainly is not a bright line... that is not an example of the Department administering a bright line test.

At the time of Tatro, however, I understood they were following a bright line, and I'm not sure that there... and Tatro as I read the case endorsed that as a reading of the regulation.

Apart from the 1996 letter, is there clear evidence that they are... that the Department is following a multi-factor as opposed to a bright line approach?

Mr. Seitz: Actually the 1996 letter, one of which is attached to our petition for certiorari, were the only times that the Department was asked whether one-on-one continuous nursing, or in fact nursing services at all, were required.

The earlier letter ruling had to do with psychotherapy services, and that's because psychological services were also listed in the statute.

Justice Souter: So they didn't have to get to the bright line versus multi-factored...

Mr. Seitz: They really didn't, and in fact they applied what looked like a bright line on the included psychotherapy services, because you have the psychologist, the medical service distinction.

Justice Souter: Well, assuming, then, that's the... sort of the state of the administrative record, don't we have to confront Tatro in this way: Tatro seems to involve a recognition, an endorsement of the... what the Court then understood to be the Department's bright line approach to interpreting the statute

Once the regulation has so been approved by a decision of this Court, doesn't the agency have to go through some procedure to amend its regulation if it's going to change its interpretive approach?

Mr. Seitz: Absolutely, Your Honor.

Justice Souter: Well, it hasn't done it here, has it?

I mean, the only thing we've got is the 1996 letter, and that may express uncertainty or confusion on the part of whoever wrote that letter, but it certainly doesn't rise to the level of the Department's formally reassessing its interpretive stance.

Mr. Seitz: Your Honor, first I think the Tatro case actually approved the included definition of medical services as services by a physician for purposes of evaluation and diagnosis.

It didn't deal with the excluded... all it is is, it has that footnote 10 that says presumably excluded services would be services by a physician for other services.

So this Court even in Tatro did not adopt... and there isn't a regulation on excluded services, so the Court clearly did not adopt an excluded bright line physician-nonphysician test.

Justice Scalia: You know, even if I don't accept... even if we reject what is the nice bright line test that's expressed in Tatro...

Mr. Seitz: Yes.

Justice Scalia: It certainly is expressed there, hospitals and doctors.

Do I have to go all the way to your, over to... I hate multi-factor tests.

I... you know.

[Laughter]

Mr. Seitz: No, we don't think you do have to...

Justice Scalia: Can we... can you give us any other clearer line?

I mean, what, normal school nursing services, or...

Mr. Seitz: Actually, we would be happy to give that line, and a line that particularly was drawn at continuous one-on-one which, other than physician services, is the most intensive medical services you can get.

A nurse for just you?

Certainly there can be a line drawn there to say, that's medical.

Unless there's further questions right now, I'd like to...

Justice Breyer: I'd like to ask one question.

Mr. Seitz: Yes.

Justice Breyer: You deal with this area quite a lot.

Mr. Seitz: Of special education?

Justice Breyer: Yes.

Mr. Seitz: Yes, I do.

Justice Breyer: Good.

All right.

If, in fact, a nurse provides a diagnostic or evaluative service, a nurse, or a counselor of some kind...

Mr. Seitz: Uh-huh.

Justice Breyer: Do you view that as coming within the act?

Mr. Seitz: Yes, and in fact the law requires multidisciplinary assessments as well.

Mr. Chief Justice, may I reserve my time?

Chief Justice Rehnquist: Very well, Ms. Seitz.

Mr. Seitz: Thank you.

Argument of Douglas R. Oelschlaeger

Chief Justice Rehnquist: Mr. Oelschlaeger.

Mr. Oelschlaeger: Mr. Chief Justice, and may it please the Court:

In Tatro this Court held that clean intermittent catheterization was a related service which the school district had to provide at its expense in order for Amber Tatro to remain in school and benefit from her education.

In this case, the issue is whether additional services such as tracheostomy suctioning, periodic positioning, and other services not provided by a physician, are also related services which the district must provide at its expense in order for Garrett Fry to remain in school and obtain an education...

Justice O'Connor: But I guess these services are acknowledged in this instance to be of a continuous nature, as the petitioner's lawyer described, that a nurse would have to be there full-time.

Mr. Oelschlaeger: Justice O'Connor, the petitioner has categorized these services as continuous.

We've categorized them as intermittent.

We believe the record in the case is probably once or twice in the morning and once or twice in the afternoon, with the exception of the positioning services.

Garrett would need some form of intervention, either suctioning the tracheostomy once a day, catheterization once a day, positioning for 5 minutes every hour.

Other than that, alls he needs is someone within earshot, and I would propose if you had a classroom that had a teacher's aide or associate for some other child, you could basically train that aide to listen and intervene infrequently during the day and the services could be provided in that way, and that was certainly the record in the case, was that...

Justice O'Connor: There is an educational aide...

Mr. Oelschlaeger: Yes.

Justice O'Connor: with the child at all times?

Mr. Oelschlaeger: Right.

Garrett has an educational aide.

Justice O'Connor: And can that person do any of the listening or the positioning?

Mr. Oelschlaeger: They certainly could with minimal training and that was the record.

For example, in Garrett's kindergarten year his 18-year-old aunt, Stephanie Madison, provided these services, no nursing training, unlicensed person.

The school district agreed for this unlicensed person...

Justice O'Connor: So you say the record in this case shows that such a person could do these more continuous things.

Mr. Oelschlaeger: Yes.

Justice O'Connor: And that the rest of it is intermittent need.

Mr. Oelschlaeger: Yes.

Congress enacted the IDEA to provide a basic floor of educational opportunity and access for children with disabilities.

Justice Scalia: If most of this is just listening to see whether he needs assistance, why doesn't that come under the diagnostic exception to the medical exception?

Mr. Oelschlaeger: Well, we believe Congress, Justice Scalia, in 1401(a)(17), when it defined related services broadly and included supportive services and listed some, didn't list all, we believe they defined it to include a service to assist a child with a disability...

Justice Scalia: I think you're mistaking my question, because it is not a hostile question.

Mr. Oelschlaeger: Okay.

[Laughter]

Justice Scalia: Even if these were medical services, since you say most of the time they're not doing anything except listening to see whether he needs medical assistance, now, I would take listening to see if he needs medical assistance to be diagnostic, and diagnostic services are excepted from the exception for medical services.

Mr. Oelschlaeger: Except in this case they're not provided by a physician, so I suppose if a physician sat there and listened all day to see if there was some difficulty in breathing, then that expressly would be an included service.

Justice Scalia: So it's not diagnostic unless it's done by a physician.

Mr. Oelschlaeger: That seems to be the statutory definition, yes.

Justice Ginsburg: I don't follow that, because...

Justice Scalia: I don't, either.

Justice Ginsburg: diagnostic is covered, even if it's a physician.

I thought the purpose was to rule out things that were medical but not diagnostic.

In other words, anybody can do... diagnostic is covered by the statute.

It's in this nondiagnostic area that we have a problem, isn't that so?

Mr. Oelschlaeger: That is so.

1401(a)(17) says that, Your Honor, yes.

Justice Ginsburg: Yes, so if it's diagnostic, whoever does it it comes... it's covered.

Mr. Oelschlaeger: Right.

I am mistaken in my response to Justice Scalia.

Chief Justice Rehnquist: But there's also... you know, if a parent sat up at night with a kid who had whooping cough waiting for him to get into a spasm you wouldn't say the parent was diagnosing whooping cough.

You just diagnose whooping cough once, then you have a lot of consequences from it.

Mr. Oelschlaeger: Right.

That would be in a treatment...

Chief Justice Rehnquist: Yes.

Mr. Oelschlaeger: Treatment modality at that point, yes, Your Honor.

The point I was trying to make is, the district's position here appears to be cost-based, and I think that's fairly clear.

We do not believe that the IDEA is some form of blank check legislation.

This Court recognized in the Florence County case that the IDA... IDEA is a broadly remedial statute, and that States, if participating, will have to spend a substantial amount of money.

We believe Congress recognized this as well in other parts of the statute, not in the part of the statute where one defines what is a medical or related service, but in other parts of the statute.

Justice Breyer: Do you think that the agency has the power to define diagnostic... to define medical services one way or the other?

Mr. Oelschlaeger: Yes.

In 1407...

Justice Breyer: All right.

If they have the power, then I take it... one of the arguments here that I'm concerned about is that you and the Solicitor General say they exercise that power along the lines you say, and they say, no they didn't, and indeed the letter in the appendix, Appendix C, says that quite late in the game they were saying, no we didn't.

We think it all depends on a lot of different circumstances.

So I'd appreciate at some point your addressing that.

Mr. Oelschlaeger: Okay.

I'll address that right now, Your Honor.

First of all, the letter in the appendix I believe was raised... asked in the context of what the current judicial interpretation was of the related service and medical service issue, and the letter itself goes through not to explain necessarily...

Chief Justice Rehnquist: Where is the letter in the record, Mr. Oelschlaeger?

Mr. Oelschlaeger: I think the letter is Exhibit D to the petition for certiorari.

It's at page 64a.

Justice O'Connor: Page what?

Chief Justice Rehnquist: Appendix D of 64a.

Justice O'Connor: 64a?

Mr. Oelschlaeger: 64a, and the letter starts out and talks about the case-by-case analysis, which is what is required under the IEP, or individualized education plan procedures of the statute, and then proceeds to explain how various district courts, the Detsel court, various circuit courts have interpreted those provisions.

The legislative, or the regulatory action in this case, Justice Breyer, came in 1977 when the initial regulations were promulgated under the IDEA by the Department of Education.

They included the regulations that are involved in this case, the definition of medical services, the definition of school health services, and those regulations have remained unchanged since 1977.

They've been on the books 21 years.

Justice O'Connor: Well, if the facts were different than you say they are in this case and if, in fact, continuous care by a registered nurse were necessary 24 hours a day, would your answer be any different?

Mr. Oelschlaeger: Well, the 24 hours a day might be different.

The fact that an RN were required as opposed to an LPN, or a nonlicensed aide, doesn't change the analysis in my regard simply because the statutory definition gives the medical service exclusion, and that has been defined by the agency to be something required to be done by a physician.

Now...

Justice O'Connor: So if an ambulance has to stand by for every hour the child is at school, it's not a physician...

Mr. Oelschlaeger: That's true.

Justice O'Connor: and the school has to do it.

Mr. Oelschlaeger: Although again, given the facts of this case, an ambulance could be summoned by a 911 call.

Justice O'Connor: No, I'm asking some hypotheticals, obviously.

Mr. Oelschlaeger: I understand.

Justice O'Connor: Because you told me that the facts of this case are different, but I want to know how far your argument takes us, and would it be different...

Mr. Oelschlaeger: The...

Justice O'Connor: if a nurse had to be there full-time and the ambulance had to be outside the school all the time.

Mr. Oelschlaeger: Okay.

I think the question really gets to the heart of what is a related service and what limitations did the Court adopt...

Justice O'Connor: I'm asking you...

Mr. Oelschlaeger: Okay.

Justice O'Connor: what you see are the limitations, if any.

Mr. Oelschlaeger: The limitations in Tatro were expressed to be, the child is handicapped so as to require special education.

We have that here.

Only those services necessary to aid the handicapped child to benefit from special education must be provided.

That's true here.

And school nursing services must be provided only if they can be performed by a nurse or other qualified person, not if they must be performed by a physician.

So 24-hour-a-day nursing service while the child is not at school does not qualify, we believe, as a related service, but while he's at school...

Justice O'Connor: But while the child is at school...

Mr. Oelschlaeger: Yes.

Justice O'Connor: full-time nursing care required and, if necessary, an ambulance right there in the driveway.

Mr. Oelschlaeger: Again you'd have to get into the IEP procedure.

In a sense you do have to go on a case-by-case basis, but if the IEP team looked at it, found that an ambulance was there, was needed to prevent some form of severe...

Justice O'Connor: Well, because of the high risk of autonomic hyperreflexia, for example.

Mr. Oelschlaeger: Right, and again that's a virtually nonexistent risk in this case on the record, but yes.

Justice Breyer: All right, so I think if I were in Congress I might have thought the agency will resolve this.

They'll define it.

And I might think as a judge they know a lot more about it than I do.

Well, thinking that, how do I decide this case?

Mr. Oelschlaeger: Well, I think this case is merely an extension of the Tatro case.

Where Tatro recognized clean intermittent catheterization as a related service, we're asking the Court... and I think perhaps the school district conceded this in their portion of the argument, that tracheostomy care be recognized as a related service, that positioning services be recognized as a related service, and the definition in 1401(a)(17) and the regulations be followed.

There's... nowhere in there does there appear an exception to what constitutes a related service based on...

Justice Breyer: I can't find a regulation... I can find a regulation that says that diagnostic services, when given by a doctor, do get covered, but I didn't find any other regulation that defined whether or not a medical service was or wasn't a medical service.

I found no other definition that would help me here.

Mr. Oelschlaeger: Right.

The two regulations at issue, Your Honor, would be 300.16, subpart (4) of the definition of medical services.

That's at...

Justice Breyer: That's the one that says, when you diagnose a child, if a doctor diagnoses a child, that is a covered medical service.

Mr. Oelschlaeger: Right, and that was the one that the Tatro...

Justice Breyer: I take it here we're not dealing with diagnostic services.

Mr. Oelschlaeger: Not by a physician, anyhow.

Justice Breyer: So therefore, what regulation covers this case?

Mr. Oelschlaeger: Then you have to look at the regulation (b)(11), 300.16 (b)(11).

It's at page...

Justice Kennedy: School health services?

Mr. Oelschlaeger: Right, and it's our position...

Justice Scalia: What page are you on?

Mr. Oelschlaeger: That would be page 8a of the appendix to the United States' brief on the merits.

Justice Kennedy: Is it fair to say that the petitioner's position reads, school health services means services usually or traditionally provided by a qualified school nurse?

Is that a fair characterization of the petitioner's position?

Mr. Oelschlaeger: I think there's an element of that, Your Honor, and of course we believe that to be directly refuted by the statute, particularly in regards to the 1997 amendments.

In other words, not having enough nurses shouldn't be considered when you define what is or is not a medical service.

Justice Kennedy: Well, on the other hand, if you say school health service means services provided by a qualified school nurse and that they're provided by the nurse in this case, therefore they're automatically covered, that, it seems to me to be a somewhat circular definition on your part.

Mr. Oelschlaeger: Well, there is also the second half of the definition, Your Honor, qualified school nurse or other qualified person.

Justice O'Connor: Well, I guess the statute that we look to first is probably 20 U.S. Code section 1401(a)(17).

Mr. Oelschlaeger: Yes.

That's, we believe...

Justice O'Connor: And it defines the term related services, and it says that that means transportation and such developmental, corrective, and other supportive services, including speech pathology, audiology, psychological services, physical and occupational therapy and so forth.

Every one of those things, it seems to me, is something that's given episodically, not continuously.

I mean, somebody has to be transported.

Somebody needs a little speech pathology periodically.

Someone needs therapy occasionally, or counseling occasionally.

But nothing in that list suggests, does it, a level of just, 24-hour-a-day, or even school-hour day care?

Mr. Oelschlaeger: Justice O'Connor, I think that's a fair comment.

I think other portions of the statute do suggest that, however.

In 1412(2)(C) and 1412(3), I don't... unfortunately I don't think either of these sections are reproduced in the brief.

It's clear that Congress' intent here was the most severely disabled child, the intent of the...

Justice O'Connor: Where is the statute...

Mr. Oelschlaeger: They're both in 20 U.S.C. section 1412(2)(C), all children residing in the State who are disabled, regardless of the severity of their disability, and then subsection (3) of that same 1412, the State has to have a plan first to address children who got no education, which was the problem discussed in Rowley, and then children with the most severe disabilities.

Justice O'Connor: It's unfortunate that these weren't reproduced to help us analyze it.

Mr. Oelschlaeger: I understand that.

The other area of the IDEA which I think supports this position is the area of residential placements.

There are reported circuit and district court decisions... there are several in our brief... where placements in the approximate range of $100,000 per year are accepted.

In fact, in one of the cases they were arguing over whether a $50,000 placement was appropriate, or $150,000 placement was appropriate.

IDEA is broad legislation.

It's clear that Congress intended, for States that accepted the money, that there would be substantial sums...

Justice O'Connor: Has any State refused to go along...

Mr. Oelschlaeger: No.

Justice O'Connor: with this program?

I thought they all had gone along.

Mr. Oelschlaeger: It's my understanding that initially New Mexico didn't get involved, but now all 50 States are involved in the program.

Justice Scalia: You know, actually I suppose we really don't begin with the definition of related services, but we probably begin with a provision that uses related services, and that reads, the term free appropriate public education means special education and related services, and I suppose in attacking this problem we should regard that whole phrase, special education and related services.

Mr. Oelschlaeger: Right, and there is... there's statutory definitions for your help, Your Honor.

Justice Scalia: Okay, and then it defines related services to mean transportation and such developmental, corrective, and other supportive services, including blah, blah, blah, blah, blah, as may be required to assist a child with disability to benefit from special education.

I mean, I guess keeping him alive would assist him to benefit from special education, but I don't think that's what was meant by related services.

Mr. Oelschlaeger: No, and again I think the limitation in the Tatro case relates to services provided during the school day to get the child in the front door, to keep them there for the school day, and then to get them home.

Justice Scalia: And what's necessary to enable him to benefit.

I mean, he has a disability that distinctively prevents his making use of the educational facilities, but I don't... to say that making sure the person can stay alive...

Mr. Oelschlaeger: Oh, I think...

Justice Scalia: is a related service, it seems to me a great stretch.

Mr. Oelschlaeger: It is a broad definition.

I think the Court in Tatro recognized that and placed some limitations upon it, but the IDEA...

Justice Scalia: Oh, I don't think it's a broad definition.

I mean, you can say Tatro is a broad decision, but the definition says, transportation and other supportive services as may be required to assist a child with a disability to benefit from special education.

Mr. Oelschlaeger: Right, to benefit from the education.

Justice Scalia: Now, that would include enabling him to move around the room, enabling him to use books and so forth, but to say keeping him alive is part of it, I mean, that just expands related services...

Mr. Oelschlaeger: Well...

Justice Scalia: beyond any limitation.

Mr. Oelschlaeger: Except if the child dies obviously there's no benefit from education.

Justice Scalia: Well, of course.

I mean, that's my point.

Mr. Oelschlaeger: Then the other cost limitation, Your Honor, and again I think the district's primary position here is the cost, in the Rowley case the Court held that IDEA provides for a floor of educational opportunity.

Once the floor is met, if there are better and more expensive related services that would get a better result, the school district's not required to pay that, and we're not asking for that in this case, so that is an additional cost limitation we believe contained in the IDEA, but again, cost just is not a factor in how you define related service or medical service.

Justice O'Connor: Under the act, if it's determined under the plan that the child can't benefit from education in the school setting but could in some other institutional setting...

Mr. Oelschlaeger: Right.

Justice O'Connor: the school district is required to provide that institutional care?

Mr. Oelschlaeger: In some circumstances, yes, in the institutional placement, and there are reported decisions on that, Your Honor.

There's also a home-based program, but we believe that the act also expresses a preference for mainstreaming.

In section...

Justice Ginsburg: And that's what this case at this stage turns on, because as I understand it this child was in school with these services being... the tab being picked up by something other than the school district's funds, and now the... one of the answers that we have from the school district is, oh, don't worry, there'll be other funds to keep this child in school, but if you have to use our funds, then the alternative is home instruction, and how would that... what would... how would the home instruction work?

Mr. Oelschlaeger: Well, home-based instruction, Your Honor, and there's materials in the brief on this, is typically an hour or two a... per week of instruction for the child at home, and that we would submit is not in keeping with the intent of the IDEA...

Chief Justice Rehnquist: Thank you, Mr....

Mr. Oelschlaeger: mainstreaming in paragraph... thank you.

Argument of Beth S. Brinkmann

Chief Justice Rehnquist: Mr. Oelschlaeger.

Ms. Brinkmann, we'll hear from you.

Mr. Brinkmann: Thank you...

Chief Justice Rehnquist: Ms. Brinkmann, I notice that the letter to which Justice Breyer referred, it appears that it was... the date of the inquiry was October 1, 1993, and the date of response was February 22, 1996.

Does that mean that the Office of Special Education took 2-1/2 years to answer it?

Mr. Brinkmann: Your Honor, I'm not aware of the circumstances surrounding that delay.

I apologize for that lack of knowledge.

I do know that sometimes these inquiries come in and the Department of Education may ask informally for additional information in a particular case.

I'm not sure of the circumstances surrounding this, but...

Justice Scalia: It certainly shouldn't have taken 2-1/2 years to write such an unhelpful letter.

Mr. Brinkmann: I would...

[Laughter]

I would think not, Your Honor.

The important facts here... and I think that what the Court has to focus on is that the services here are not excluded as medical services because they do not need to be provided by a physician.

There are three main reasons why that is correct.

First, it's consistent with the Secretary of Education's longstanding interpretation, which I will discuss.

Second, that interpretation was adopted by Congress in 1983 when it said no to the Secretary's attempt to broaden the medical exclusion, and when Congress enacted a specific prohibition, section 806 of IDEA, telling the Secretary of Education that he could not promulgate new regulations that lessened the protections of those regulations, these regulations at issue here, including the related services provision.

And third, because this Court in Tatro recognized that the Secretary's regulations are properly interpreted to exclude only physician-provided services and to include school health services, and...

Justice O'Connor: Well, is there no...

Justice Scalia: What's the date of Tatro?

Did that amendment come before or after Tatro was on the books?

Mr. Brinkmann: It came before Tatro, Your Honor, in fact, the year before.

I've looked into the briefs and did not find it brought to the Court's attention, unfortunately.

Justice O'Connor: Is there no limit, in your view, to the extent of nursing care services that may have to be provided to a child?

Mr. Brinkmann: There are limits in other aspects of the act, Your Honor.

One of those provisions we cited... we quote at page 9 of our brief.

It's section 1412(5)(B).

That's what's often called the least restrictive environment provision, or the mainstreaming provision, and that explains that the preference, as my co-counsel indicated, is to put children with disabilities in a regular classroom environment, but it recognized that that may not always occur.

There may be instances when... and I'm quoting from page 9... the nature or severity of the disability is such that education in the regular classroom with the use of supplementary aids and services cannot be achieved satisfactorily, so there are... that's certainly a limitation on services that would be required.

Justice O'Connor: alternative, placing the child in an institutional facility, is that required?

Mr. Brinkmann: Yes, it is.

It all comes down... the core of a placement for a child, Your Honor, under this program is the individualized education program.

That placement may be at home.

That may be in some kind of institutional setting.

That's correct.

If I could, I'd like to address the Secretary of Education's interpretation, and it's very important, I think, to look at that time period when Congress adopted this in 1983, and if you look at the appendix to our brief at page 4a you'll see at the bottom the codified section is 1407(b), and the heading of that section is lessening of procedural or substantive protections as in effect on July 20, 1983 is prohibited.

These are the substantive protections that were in effect at that time, and the prior year, 1982, the Secretary of Education had issued a proposed rule-making explaining that it wanted to... he wanted to broaden the medical services exclusion.

On page 22 of our brief...

Justice Scalia: But we didn't know at that time that what those regulations meant was Tatro.

Mr. Brinkmann: We did, Your Honor, because on page 22 in the Federal Register at the last sentence of our second full paragraph on page 22 we quote from that Federal Register proposal, quote: The existing regulations define medical services as services provided by a licensed physician, and the proposed changes, the Secretary is very explicit that he wanted to broaden that medical exclusion to consider factors precisely what petitioner is urging, such as cost

Moreover...

Justice Breyer: All right, so that isn't what they provided.

I mean, the existing regulations were regulations that talked about when a doctor diagnoses, like a nurse, is that right?

Mr. Brinkmann: The existing regulation is what we currently have, where it has...

Justice Breyer: Yes, the...

Mr. Brinkmann: the inclusion of school health services and then defines the excluded medical services, but it's certainly a legitimate...

Justice Breyer: Did I... the one we read before?

In other words, the one at the end of your brief.

Mr. Brinkmann: Yes.

Justice Breyer: The one on page 8a... all right.

Now, is there any... is there a way that we can use a... there are two things that we have to suggest this is the agency's position.

One, of course, is just what you read, a statement, perhaps not too accurate, of what the position previously had been in a request for...

Mr. Brinkmann: Uh-huh.

Justice Breyer: comments, et cetera, and second, your brief, so if I were to go on those two things I'd say yes, that is what the agency's...

Mr. Brinkmann: No, Your Honor.

We believe there are additional things.

Justice Breyer: All right.

Mr. Brinkmann: There is that statement in the notice of proposed rule-making in 1982, and that's fully consistent with earlier letters.

It had only been since 1977 that the regulation was in place, and at pages 17 to 18 of our brief we talk about the letters the petitioner's counsel referred to about psychotherapy services and the Department had explained there that if those services are administered by a licensed physician, those are excluded medical services, but if there are services provided by other professionals such as a psychiatric social worker, et cetera, those would not be excluded.

And there's also a footnote on page 18 in note 11 explaining the distinction in the context of optometry.

That note also... footnote also explains then answers the questions about diagnosis being able to be provided by people other than physicians.

I would also point out, sir, there were the earlier letters.

There's the 1992 proposed regulation that clearly states it.

Moreover, looking at what the Secretary of Education wanted to do was... just reinforces the fact that the status quo at that time, which is what we still have, was this bright line distinction.

Justice Ginsburg: Ms. Brinkmann, I find it difficult to accept that, for this simple reason.

If there had been this bright line physician-nonphysician, you would expect that to be broadcast all over the agency so that when... bright line test, easy for all the administrators.

You would never get a letter like that letter in '96.

Mr. Brinkmann: I'd like to explain that letter.

I think in order to understand the letter you have to understand the circumstances.

That letter actually does reinforce the Secretary's position.

What it says is that you have to look at it on a case-by-case basis to determine whether it's a required related service.

You have to decide under the Tatro thing, for example, whether or not the child is disabled, requires special education, whether it needs to be provided by the...

Justice Ginsburg: Where does it say there's a bright line between physician and nonphysician?

Mr. Brinkmann: No, it doesn't say bright line, Your Honor, not at all.

You're correct about that, of course.

But what the letter was doing was responding to this question, and if petitioner were correct, the answer in that letter would have been, it's excluded medical, end of story, and there would have been no further analysis of...

Justice O'Connor: Well, Ms. Brinkmann, a whole... a majority of the courts of appeals have rejected your bright line approach.

Mr. Brinkmann: Yes.

Justice O'Connor: I mean, if we affirm here we certainly will be going against a majority of the Federal appellate courts.

Mr. Brinkmann: Your Honor, I think to rule otherwise would clearly be inconsistent with the Court's ruling in Tatro, and Congress' positive statutory enactment that we cite at page 8a that adopts as a floor these regulations.

And I have to add, Your Honor, several of those courts of appeals are on summary affirmances without much analysis, and also there's just straightforward statements about disagreeing with the policy undergirding the Secretary's regulations, so we think that that's no reason to ignore the Court's precedents about the deference that is owed to the Department of Education.

Justice Breyer: What are we supposed to do if I think, look, this is a question that cries out for agency interpretation, but the agency doesn't interpret it, so instead you have seven courts who know little about it going in 15 different directions.

Mr. Brinkmann: Again, Your Honor...

Justice Breyer: What is the... what is our ability to cure that problem?

Mr. Brinkmann: Well, again Your Honor, I would urge you to look at this letter in the context, if you... you realize that what the agency was explaining is that yes, this is an eligible school health service.

It's not an excluded medical service.

But just because it's eligible doesn't mean it's a required related service.

These letters could not decide that.

It has to be decided by the individual education program in the context of a particular case.

Moreover, petitioners have cited nothing that the agency has ever published that has ever said anything is excluded as a medical service that was not provided by a physician, nothing.

Justice Ginsburg: Your position is clear in your brief.

I have seen nothing from the agency that was clear up until the position that it is now taking in this Court.

Mr. Brinkmann: Your Honor, I would point out in addition to the proposed rule-making that we cite on page 22, which I think is the unequivocal statement in those earlier letters about the psychotherapy and the optometrist, that also at the time of this proposed change in the regulation, and Congress' adoption, incorporation, codification, ratification of this regulation, the lower courts actually agreed with that bright line.

You had the Fifth Circuit... may I finish?

Chief Justice Rehnquist: No.

Your time has expired.

Mr. Brinkmann: Thank you, Your Honor.

Rebuttal of Susan L. Seitz

Chief Justice Rehnquist: Ms. Seitz, you have 4 minutes remaining.

Mr. Seitz: Thank you.

I would like to address just a couple of questions that were raised of my colleague, Ms. Brinkmann.

I believe that Justice Scalia asked why if a nurse is making assessments of his health condition that doesn't fall under the exception to the exception.

That's because the diagnostic and evaluation services referred to in the statute are diagnostic and evaluation services for determining eligibility for special education under the act.

It's not dealing with diagnosis and evaluation of a medical condition for medical treatment.

Okay, I'd also like to deal with Ms. Brinkmann's discussion of the agency proposed rule-making in 1982... excuse me.

I'm looking, and I... this is not cited in any of the appendix, so I'm going to have to give you a citation to the Federal Register.

It's Volume 47, and it appears at page 33,838, probably... excuse me.

33846 through 33848.

In fact, the proposed agency regulations in 1982, it says in the prelude, the prologue to the proposed regulation, the most persistent problems involve determining whether certain health-related services are to be provided, clearly finding that there was confusion over what was a medical service, over what was a related service.

It does not say there was a longstanding bright line rule going back to 1977.

Nor do I think you can look at the statutory amendment in '83 as ratifying the bright line, because if you look at the proposed regulation in the area of medical services, what was being proposed by the Secretary in 1982 was to exclude all life sustaining procedures that could be performed under sterile conditions... that would be CIC.

It would have been clearly excluded... must be administered by licensed health care professionals, would have excluded all school nursing services, medication administration.

Just because Congress went on in 1983 and said you can't lessen the procedural or substantive rights, I don't think you can say they endorsed a bright line physician-non...

Justice Scalia: It doesn't mean that Congress knew what those rights were.

They just knew, whatever they were, we don't want them lessened.

Mr. Seitz: That's correct, and there were six areas, not just related services that were being proposed, amendments.

I don't think we can draw any conclusion from that legislative amendment in '83.

Justice Breyer: Why isn't a... why isn't a sort of vague rule, unclear, et cetera, now interpreted, better than nothing?

Mr. Seitz: That would be helpful.

I don't think that we can... when Ms. Brinkmann said that we have not cited any agency regulation on excluded... any agency interpretation on excluded medical services, I agree, there aren't any agency regulations or interpretations on excluded, so you have to look to the case law.

That's why we've had six circuits.

Justice Ginsburg: Is there any information in the population that's covered by this statute, how many children, or what percentage would require the continuous care?

Mr. Seitz: Unfortunately, there really isn't.

The stat... the Federal statute, unlike our State statute, has specific categories of disabilities.

Most of these children, though not necessarily all of them, would come under other health-impaired, and all we know is that 5 percent of those treated are treated as other health-impaired, but we don't have any statistics...

Justice O'Connor: Well, Ms. Seitz, if the fact is that if a child needs so much care that the school district thinks that it can't do it on site, it may cost the school district a lot more money to place the child in institutional care.

Mr. Seitz: Okay, I'm glad you brought that up, because I wanted to respond to your question on that, Justice O'Connor.

What the statute provides is that the district has to provide... may I finish my answer?

Chief Justice Rehnquist: Yes, surely.

Mr. Seitz: Okay.

Has to provide educational and related services in homes, hospitals, institutions.

They don't pay for the institution.

They provide the educational and related services.

Justice O'Connor: Okay.

Chief Justice Rehnquist: Thank you.

Mr. Seitz: Thank you.

Chief Justice Rehnquist: The honorable court is now adjourned until Monday next at ten o'clock.