Metropolitan Government of Nashville County v. Tennessee Department of Education

771 S.W.2d 427, 1989 Tenn. App. LEXIS 63
CourtCourt of Appeals of Tennessee
DecidedJanuary 25, 1989
StatusPublished
Cited by3 cases

This text of 771 S.W.2d 427 (Metropolitan Government of Nashville County v. Tennessee Department of Education) is published on Counsel Stack Legal Research, covering Court of Appeals of Tennessee primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Metropolitan Government of Nashville County v. Tennessee Department of Education, 771 S.W.2d 427, 1989 Tenn. App. LEXIS 63 (Tenn. Ct. App. 1989).

Opinion

OPINION

CANTRELL, Judge.

In this appeal, we are asked to decide whether a student’s placement in a psychiatric hospital was an educational placement under the Education of the Handicapped Act (EHA), as amended by the Education for Handicapped Children Act of 1975 and other amendments, 20 U.S.C. § 1401, et seq. (1982, Supp. I 1983, and Supp. IV 1986). If so, the act makes the school district responsible for the hospitalization expenses.

Michael Doe was born on July 22, 1970 and has attended schools in Davidson County since kindergarten. He is a handicapped child under the definitions of EHA; he has a learning disability, fine and gross motor skills deficits, and poor relations with peers and authority figures. After Michael failed the seventh grade, he spent two years at Benton Hall, a private school for children with learning disabilities. At the end of the 1985-86 school year, the principal at Benton Hall advised the parents that Michael had outgrown Benton Hall academically.

In the summer of 1986, Michael’s parents and officials from the local school system met and discussed a program for his educational needs. The school officials recommended a special day program at Hillwood High School; this program is an Option 8 under a classification system used by the Tennessee State Department of Education which lists ten increasingly restrictive types of service options. The special day program offered small classes, a clinical psychologist, and special counseling. Michael’s parents, however, opposed placement in that program and pressed for something less restrictive, an Option 7 or 5, in hopes that these programs would be more challenging. At a multi-disciplinary team meeting on August 15, 1986, the parties agreed on a less restrictive program at Hillsboro High School, where Michael would attend regular classes and get special support from the school staff.

The plan did not work. Michael had trouble in his math class and began to skip classes and stay away from school altogether. His behavior became so irrational that his parents sent him to a psychiatrist in the latter part of September of 1986. When Michael’s behavior did not improve and his parents became concerned that he might be suicidal, the psychiatrist recommended that Michael be admitted to the Parthenon Pavilion, a private psychiatric unit in Nashville. Michael stayed at Parthenon Pavilion from October 27 until December 12 of 1986.

On December 1, 1986, Michael’s parents requested a due process hearing on the question of reimbursement for the expenses incurred while Michael was in the *429 Parthenon Pavilion. After a hearing on June 21, 1987, the hearing officer found that the placement at the Parthenon Pavilion was appropriate and necessary in order for Michael to benefit educationally. Consequently, he ordered the school system to reimburse Michael’s parents for all the expenses incurred at the Parthenon Pavilion.

The local school system appealed the decision to the Chancery Court of Davidson County where the Chancellor reversed the decision of the hearing officer, holding that the decision was not supported by substantial and material evidence.

I.

Under 20 U.S.C. § 1414(a), a local education agency desiring EHA funding must attempt to furnish “a free appropriate public education to all handicapped children.” 20 U.S.C. § 1414(a)(l)(C)(ii). According to the statutory definition, “free appropriate public education” includes “special education and related services.” 20 U.S.C. § 1401(18). Although “related services” may include medical services, the act does not require a school system to provide services by a physician except those necessary for diagnostic and evaluation purposes. 20 U.S.C. § 1401(17); see also Irving Independent School District v. Tatro, 468 U.S. 883, 104 S.Ct. 3371, 82 L.Ed.2d 664 (1984). The regulations promulgated to implement the EHA state:

(a) As used in this part, the term “related services” means transportation and such developmental, corrective, and other supportive services as are required to assist a handicapped child to benefit from special education, and includes speech pathology and audiology, psychological services, physical and occupational therapy, recreation, early identification and assessment of disabilities in children, counseling services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training.
(b) ...
(4) “Medical services” means services provided by a licensed physician to determine a child’s medically related handicapping condition which results in the child’s need for special education and related services.

34 C.F.R. § 300.13 (1987).

In Irving Independent School District v. Tatro, 468 U.S. at 883, 104 S.Ct. at 3371, the question was whether the EHA required a school district to provide a handicapped child with clean intermittent cathet-erization during school hours. The United States Supreme Court held that the school district was responsible for that service. Id. at 895, 104 S.Ct. at 3378. The Court said:

We also agree with the Court of Appeals that provision of CIC is not a “medical servic[e],” which a school is required to provide only for purposes of diagnosis or evaluation.

Id. at 891, 104 S.Ct. at 3376 (emphasis added).

The Court reasoned that, since CIC could be provided by a school nurse or other qualified person, and was not required to be performed by a physician, the act and the regulations do not exclude the service. A physician’s services, however, are covered by the act only when necessary to provide diagnosis or evaluation.

Since the physician’s services at issue here were not necessary for diagnosis or evaluation, we are persuaded that payment for the services rendered by Michael’s psychiatrist are expressly excluded by the EHA.

As to the cost of Michael’s stay in the Parthenon Pavilion, a different set of criteria applies. The EHA provides for residential placement when such placement is necessary to meet the individual needs of a handicapped person. See 20 U.S.C. §§ 1401(16), 1413(a)(4)(B). Residential placement, however, must be the least restrictive placement appropriate to the child’s individual needs. 20 U.S.C. § 1412(5)(B).

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771 S.W.2d 427, 1989 Tenn. App. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/metropolitan-government-of-nashville-county-v-tennessee-department-of-tennctapp-1989.