HELP - utter ridiculousness UPDATE

[slsh]

I've given up on FAPE in LRE, or FAPE anywhere. Raised the white flag, made sure that Boo was involved in the few choices that were to be made (and his placement is *his* choice). But apparently, that's not enough. Co-op is now entering the medical domain where they have absolutely no business and I have realized that I need to shut them down post haste or Boo isn't even going to be able to *pretend* to have gotten an education.

First, co-op was requesting medical information from physician that they do not have authorization to request. All medical information comes thru me, for a reason. They have done this twice now since August. They have not received info.

At IEP mtg in Sept, I was informed by program nurse that we would have to have a swallow study done before he'd be allowed to eat a sandwich in school. You have got to be kidding me - a kid who granted has lousy oral motor skills but who has not had a *single* instance of aspiration in his 16 years on solid food, who has eaten pizza, burgers, sandwiches in this very same program for the last 6 years... and now they want an invasive study in the name of "safety"? I told them not a chance. OK, then they want an rx from doctor before they will allow it. Because I have given up on any semblance of common sense among the people, I told them to tell me what they *would* allow him to eat and I would send those food items.

Last straw, has really frosted me today, is Boo in on antibiotics since Fri, and as such has developed ... pardon me... loose stools. He doesn't have e. coli or any dread parasite infection, he has amoxicillin-related unformed stools. He "shouldn't be in school" per program nurse (not his 1:1). Now, we're not talking a health hazard here - without getting graphic, we're talking about a diapering situation that requires more time. Nurse had the *gall* to tell me when I arrived at school that they couldn't have 3 people spending a half hour to change him (2 are just there to standby for when they put him back in chair using lift - they're not actively involved in anything else). I told her that I was really sorry it was such an *inconvenience* for school staff, but in no way, shape, or form does this even approach "education".

I'm sick (literally), I'm tired, I'm peeved beyond words, so I may be off base, but I look at it this way (and *please*, if I'm off base, set me straight): They are not sending ambulatory children on antibiotics home. They *are* sending nonambulatory children on antibiotics home because it takes too much time to properly attend to their needs in their view. This is discriminatory. I want to send a letter requesting written policy not only on what the cut off time is for how long is too long, but also the written policy on what children can and cannot eat without invasive testing. I'm really tempted to send a copy of HIPAA along with- my request because it's obviously yet another law they've never heard of... but I won't, because this program RN is just too completely out of her mind.

Again - Boo is *not* presenting anything even remotely approaching a health hazard here. His diapers contain things well - it's just messy, but it's life. Deal, in my humble opinion.

I also think this constitutes 5 days towards his 10 days until change of placement (he's on antibiotics until Fri) - he is out at co-op request, for *their* convenience, not due to illness or anything else.

Gosh - I'm so *sick* of this garbage. My son's biggest disability is school staff who are accommodating him into complete and utter helplessness.

Any suggestions, or do Boo and I just suck it up again?

 

[dreamer]

I am not sure what the law is, but....from the perspective of a nurse...

It is possible they want the swallow test for documentation to relieve them from liabilty in a similar way kids have to have TB tests etc on file even when they do not have symptoms, - do they feed him or does he self feed?

As for the unformed stool, that could be out of fear it might leak out if it is loose. either around the legs or up over the top. (not during changeing but in between changes) Even non contagious feces is not "sanitary" --
Like I said, tho, I am not positive, I am offering brain storm ideas on what their perspectives might be on both. I know in our adult day care and activities time at nursing home, those were the reasons we had been given for both of those similar situations. -- BUT I understand..we were not providing education, either.

 

[Martie]

Sue,

What they want you to do is withdraw him. They KNOW he will be one of the students who is around until 21--as well he should be.

As far as the food thing goes: if they have had him for 6 YEARS with no gagging, then IF they want proof he won't gag (an Rx for FOOD---OMG) then they have to pay for it. I understand that you don't want him to have an invasive test for such a stupid reason but I would tell them to schedule an app't with the M.D. of their choice (it's evaluation. so they must pay if they feel it is necessary) and then BRING ALL THEIR EVIDENCE that this is a medical concern. All you need to bring is yourself to explain there has never been an incident. If you would feel more comfortable, get Boo's own doctor to put that in writing (but don't reveal it to the SD--only to their doctor when you get there.) Of course the doctor will think the SD is out of its mind. Perhaps they will even realize that this is stupid and confronted with the realization they will have to present non-existent evidence (and pay for it) they will decide Boo can eat just fine.

I know less about diapering incontinent kids but I do know they must change him as needed. If the looseness is medication related and he is not contagious (for whatever the antibiotics were prescribed for), then I don't think they can send him home. If they do they are depriving him of whatever FAPE (not much I realize) he is supposed to be getting. Exactly what to do about this, I am not sure. How does Boo get to school? If it is by bus, can you put him on the bus and then not answer the phone? If they don't change him, then there is a real problem of not following his IEP, harming him, etc. Part of what to do depends upon how Boo feels about it.

I know what I have suggested is not much but every time I read your posts I have the same thought: "pushout" in progress because he is over 16 and his "class" will graduate this year.

Martie

 

[slsh]

Ahhh, Martie... *thank* you, because I have to admit that when I picked Boo up from school today, after the requisite potty jokes which seemed appropriate for the situation, I did whisper in his ear that he might want to think about graduating this year so we can be done with this... you guessed it, cr!p.

Your response was like a well placed 2x4 upside my head. How weary I am of all the bologna is beside the point. I'm letting Boo down by letting them get away with- this garbage. So, IEP mtg sched on Wednesday with- nurse, sped dir (who I have to say thought the swallowing study was over the top - didn't find that out 'til today), and dir. of co-op.

I will simply be asking for written policies re: time limitations and staffing limitations on diapering (this could become an ongoing issue due to interventions we have to make to deal with- constipation which is part and parcel of spastic quad - duh, antibiotics (for URI) or no), inviting them to obtain swallowing study and "rx" at their own expense (and lotsaluck presenting any kind of medical documentation re: necessity for it), explain that Boo will bring whatever he pleases for lunch from here on out (gosh... I have to worry about retaliation here, though - a choking episode just to prove me wrong... paranoid much? Yes - thank goodness his 1:1 nurse who actually feeds him is an old hand and someone I trust without reservation), and handing over rx for Occupational Therapist (OT)/PT with- as gentle a reminder as I can muster about authorizations to release information.


I need to remember that Boo comes first and that if I don't advocate for him, no one will. Thank you thank you for the reminder.

Picking up my sword for the umpteenth time...

 

[Martie]

Sue,

DON'T give them any room to set a "policy" that is contrary to law. The Supreme Court (Tatro, 1984) ruled that intermittant clean cathereterization is NOT a medical service and therefore must be provided. If this is the case, changing diapers clearly is not medical and is necessary for Boo to attend school. It does not matter how long it takes--or how many people it takes, they have to do it until the day he reaches 22 (if he and you still want him there.)

Please don't ask for their policy unless you intend to catch them in a mis-step so you can go to Due Process and then into court (which I doubt.) If they think you do not know the law, they will invent some illegal policy that you will have to fight. There can be no such policy, and whatever else you hammer out at the IEP meeting, don't ask for trouble--they'll give it to you.

If you want to put the fear of God into them, ask them to start thinking about a transitional plan for Boo's next 4 years. You want them to believe that they are losing the push out battle.

In a very different set of circumstances, I used the threat of returning ex-difficult child to public high school very much to his benefit. They did not want my son and your SD does not want you and Boo for four more years. However, up until age 22, it is you not them who decides when Boo's education is "complete."

It is good you keep your sword well polished.

Martie

 

[Sheila]

Federal and State law definitely supersedes policy.

I pulled https://web.archive.org/web/20070715010943/http://www.asbj.com/199906/0699schoollaw.html for you.


A Duty to the Disabled
A Supreme Court ruling reaffirms the requirements of the IDEA
By Benjamin Dowling-Sendor

Severely disabled students have a right to health services that support their education, the U.S. Supreme Court has ruled, and as long as those services can be provided by someone other than a physician, it is the school district's obligation to provide them. The recent decision in Cedar Rapids Community School District v. Garret F. reaffirms a 15-year-old Supreme Court ruling on disabled students and clarifies the extent of medical services required by the Individuals with Disabilities Education Act (IDEA).

In the earlier case -- Irving Independent School District v. Tatro, 1984 -- the court ruled that the IDEA requires school districts to provide (and pay for) "supportive services" to a disabled child that may be necessary to help the child benefit from special education, including health services, as long as they can be provided by personnel other than a physician. The decision in the Cedar Rapids case reaffirms that ruling.

The Supreme Court ruled for Garret, affirming the decisions of the administrative law judge, the Federal District Court, and the 8th Circuit by a 7-2 vote. Writing for the majority, Justice John Paul Stevens reviewed the court's decision in Tatro about the scope of a school district's duty under the IDEA to provide health services for a disabled student. In Tatro, the court interpreted the IDEA as requiring a two-step analysis for determining the scope of a school district's obligation to provide "related services" to a disabled child.

The first question is whether the requested services are included within the "supportive services" that a school district must provide. The IDEA states that school districts must provide "related services" and defines that to mean "transportation, and such developmental, corrective, and other supportive services ... as may be required to assist a child with a disability to benefit from special education." The statute gives as examples such services as speech pathology, audiology, psychological counseling, and social services. The IDEA also states that "supportive services" include "medical services" but says that "such medical services shall be for diagnostic and evaluation purposes only."

The second question under Tatro, then, is whether health services requested by a student, such as the services requested by Garret's family, are "medical services" that the statute expressly excludes from the scope of its coverage.

Stevens explained that in Tatro, the court ruled that the medical services excluded from the IDEA's coverage "referred only to services that must be performed by a physician, and not to school health services" that can be performed by other personnel. For example, in Tatro, the Supreme Court ruled that the IDEA requires a school district to provide a specific form of health care -- clean intermittent catheterization -- that is often, though not always, performed by a nurse. In short, Stevens explained, the term "medical services" in the IDEA "does not embrace all forms of care that might loosely be described as 'medical' in other contexts." The term pertains only to health care services that must be performed by a physician.

The district's argument
As Stevens observed, the school district did not argue that any of the types of care needed by Garret could be excluded from the IDEA in light of Tatro. After all, catheterization can be performed by a school nurse or other trained personnel, and it was the very form of care that the Supreme Court ruled was covered by the IDEA in Tatro. Also, the school district already provides to other students most of the other services requested by Garret's family, and the tasks required to operate Garret's ventilator can be performed by personnel other than physicians.

Instead, the school district proposed a new analysis for deciding whether health care is excluded from the scope of the IDEA as a "medical service." The school district focused on the "combined and continuous character" of the care Garret required and proposed a four-part analysis based on the 6th Circuit's decision in Neely and the 2nd Circuit's decision in Detsel. Under the proposed test, a court would consider the following four factors to decide whether requested health services are "medical services" excluded under the IDEA: "(1) whether the care is continuous or intermittent, (2) whether existing school health personnel can provide the service, (3) the cost of the service, and (4) the potential consequences if the service is not properly performed."

Stevens rejected the district's proposed test, saying the four factors have no bearing on whether particular services are "medical." "Continuous services," Stevens wrote, "may be more costly and may require additional school personnel, but they are not thereby more 'medical.'" Stevens added that the Tatro rule that "limits the medical services exemption to physician services" is a reasonable interpretation of the IDEA.

Stevens pointed out that the four factors suggested by the district actually boil down to a concern about cost. The school district can train employees who are not physicians to perform the services Garret needs to stay in school. As Stevens observed, the district's four-factor proposal "seeks to establish a kind of undue-burden exemption primarily based on the cost of the requested services."

However, Stevens noted, the IDEA does not define the terms "related services" and "medical services" on the basis of cost. Although the Supreme Court considered the potential financial burden imposed on states and school districts in interpreting the IDEA in Tatro, the IDEA does not make cost a determinative test of the scope of "related services" or of excluded "medical services." Stevens explained that the role of the courts is limited to interpreting the IDEA, not to amending it to add cost as a determinative factor. Only Congress can amend the IDEA.

"This case is about whether meaningful access to the public schools will be assured, not the level of education that a school must finance once access is attained," Stevens concluded. "It is undisputed that the services at issue must be provided if Garret is to remain in school. Under the statute, our precedent, and the purposes of the IDEA, the district must fund such 'related services' in order to help guarantee that students like Garret are integrated into the public schools."

The dissent
Justice Clarence Thomas wrote the dissenting opinion, in which Justice Anthony M. Kennedy joined. Thomas argued that the court should overrule its previous decision in Tatro. He contended that the definition of "medical services" should hinge on whether the services are medical in nature rather than who provides the services. Even if Tatro were correct, Thomas maintained, it should mean merely that school districts must provide disabled children with health services "that school nurses can perform as part of their normal duties."

In Tatro, the evidence showed that school nurses in the Irving Independent School District were authorized to perform services similar to the clean intermittent catheterization at issue in that case. In contrast, Thomas contended, a school nurse cannot attend to Garret's health needs and to the health needs of other children because Garret needs continuous, one-on-one care throughout the school day. In other words, the school district must hire an additional employee to serve Garret's health needs alone.

Despite Justice Thomas' real-world concerns about costs, the majority opinion in Garret F. gives school districts a bright-line test of the scope of the kinds of health services that the IDEA requires them to provide. The tests proposed by the district and Thomas, on the other hand, would establish murky criteria that could not be consistently applied from case to case. The results will no doubt be expensive for school districts, but, as Justice Stevens observed, they are the results required by the IDEA to accomplish the goal of integrating disabled children into the public schools.

Benjamin Dowling-Sendor, an authority on school law, is an assistant appellate defender of North Carolina in Durham.

Here's another one @ https://web.archive.org/web/2005110...999-03.pdf#search="Supreme Court, Tatro, 1984

Friday Facts March 5, 1999

ALERT--U.S. Supreme Court says:

Related Related services under IDEA includes All medical services except those required to be
provided by a licensed physician.

On March 3, 1999, the U.S. Supreme Court rendered its decision in the Cedar Rapids
Sch. Dist. v. Garret F. case concerning school districts’ obligation to provide “school
health services” as required related services under IDEA.

The latter is via the Kansas State Department of Education. Your sd must not have gotten their copy.

Let us know how it goes.

 

[slsh]

Amazing what even requesting an IEP mtg will do. They blinked. Got a very conciliatory call from co-op director this morning, stating that RN possibly overreacted. Gee, ya' think? She and head program nurse will visit site nurse and clarify "proper procedures".

So yes, I know the lecture I'm going to get about not getting this in writing, though you of course know I'm going to follow up with- a certified letter of understanding re: our conversation and how it's *not* appropriate to ban a child from school because of stool consistency or lack thereof when there is a) no indication of an actual intestinal illness and b) there is a reasonable explanation, i.e. antibiotics and/or softeners. There will be documentation, filed in permanent file at my request, just not in IEP format. To be honest, I'm so sick right now (Boo shared his URI, bless his heart) I'm not sure I'd be terribly effective tomorrow anyway.

Keeping Boo's needs foremost in my mind, you could say I blinked as well and have had pediatrician fax a prescription for a regular diet to co-op. Good thing his office knows me well - they couldn't believe what I was asking for, LOL. So - Boo gets to eat his "prescribed" sandwiches and pizza now and school staff can just get over it. Sigh... it's really quite ridiculous.

Only four more fun filled years of this junk. Again, thanks for the reality check.

 

[Sheila]

Glad it worked out.

Thinking of this and the many non-productive team meetings I've attended, I was wondering how much money is spent by sd's each year paying for unnecessary meetings when the "do(s)" and "don't(s) are already spelled out.

Hope you are feeling better soonest. Yuk!

Glad Martie recalled the specific case law on this. I think I'll archive this later. It helps spell out in pretty clear language what "related services" are to be provided to the student.

 

[Martie]

Sue,
You bet your boots you need to get this in writing. I am sorry Boo was so "giving," but you need to get a Memo of conversation in the mail CERTIFIED tomorrow. Then you can at least feel better because you are a first class Warrior Mom--even if you are a sick one at the moment.

This incident is a really good example of how effective an educated parent can be. If you had caved in, they would just keep going and going (think Energizer Bunny) with the objective of pushing Boo out.

It is good news when people at the top feel uncomfortable or even ridiculous. One never knows if they are really as appalled as they seem to be or if they directed subordinates to harrass you in this way. Maybe you will never know--maybe you can tell by how quickly and thoroughly the nurse catches on to supervision provided to her.

I would still suggest an evaluation at their expense of whatever medical evidence they have that there is a choking hazard if this is EVER mentioned again. I hope it is not. What did the doctor say, pizza--yes, sandwiches--yes and on down the list? or just "Boo can eat food?" DUH....

I hope Boo is feeling better and having fewer diaper changes.

What a hassle that shouldn't have happened. Do NOT let your armor get rusty--they are on a push-out mission with Boo.

Martie :warrior:

 

[paige]

I understand your frustration completely as a parent who has been on the receiving end of such events. But as a nurse, I am betting that the school has developed a policy to protect them from legal action. So instead of a swallowing study a simple dysphagia screening could be completed. The school nurse could complete this using a straw, glass of water and some apple sauce. If you need more info let me know!

 

[Martie]

Paige,

I know you mean well, but this SD HAS been feeding Boo lunch for years with no incidents. His "class" will graduate this year(he's 17) and they would very much like to make school so awful, he will go with his class. This would probably not be in Boo's interest, however.

It is a parent's decsion (along with the child) to stay in school until attaining the 22nd birthday. It is not usual for difficult child's to stay beyomd their class' graduation--but Boo is a easy child with physical limitations.

Martie