                              No.     96-1987 NICR



Cedar Rapids Community        *
School District,                      *
                                      *
     Appellant,               *
                                      *
v.                                    *     Appeal from the United States
                                      *     District Court for the Northern
Garret F., A minor by his     *       District of Iowa
Mother and Next friend,               *
Charlene F.,                          *
                                      *
     Appellee.                        *



                         Submitted:    December 12, 1996

                         Filed:        February 7, 1997




Before BOWMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and STROM,*
Senior District Judge.

STROM, District Judge.


     This case arises under the Individuals with Disabilities Education
Act, 20 U.S.C. §§ 1400 - 1491o.     At issue is whether the IDEA requires the
Cedar Rapids Community School District to provide Garret F. with continuous
nursing services while he is in school.          The district court1 granted
summary judgment in favor of Garret




     *The Honorable Lyle E. Strom, United States Senior District
Judge for the District of Nebraska, sitting by designation.
     1
      Hon. Edward J. McManus, United States District Court Judge
for the Northern District of Iowa, Cedar Rapids Division.
finding that the necessary services were not within the "medical services"
exclusion of the IDEA, and therefore, were "related services" which the
school district must provide.


                                        FACTS
      In 1987, when he was four years old, Garret was severely injured in
a tragic motorcycle accident.               While Garret's mental abilities were
unaffected, his spinal cord injury left him a quadriplegic and ventilator
dependant.


      In the fall of 1988, Garret started kindergarten in the Cedar Rapids
Community School District.      He has been in school there ever since.           During
the school day, Garret requires a personal attendant within hearing
distance of him at all times to see to his health care needs.                     Garret
requires urinary bladder catheterization about once a day, suctioning of
his   tracheostomy   as    needed,    food    and   drink   on   a   regular   schedule,
repositioning, ambu bag administration if the ventilator malfunctions,
ventilator   setting      checks,    observation     for    respiratory   distress    or
autonomic    hyperreflexia,         blood     pressure      monitoring,    and     bowel
disimpactation in cases of autonomic hyperreflexia.                  From kindergarten
through the fourth grade, pursuant to an agreement between Garret's parents
and the school district, Garret's family provided the personal attendant.2


      However, in 1993, when Garret started fifth grade, the agreement
between his parents and the school district was discontinued.                   Garret's
mother, Charlene F., requested that the school district provide Garret's
nursing services while he was at




      2
      In kindergarten, Garret's aunt, who was not a registered
nurse (RN) or a licensed practical nurse (LPN) and did not have
formal training in medical services, performed these services.
From first through fourth grades, an LPN performed the services.

     Garret's family sees to his health care needs when Garret is
at home after school and on weekends. On weeknights, an LPN is
present to check on Garret every two hours as he sleeps.

                                            -2-
school.   The school district refused stating that it was not obligated to
provide continuous, one-on-one nursing services.


     Relying on the IDEA and the Iowa special education laws, Charlene
administratively challenged the school district's position.                After a
hearing, the administrative law judge concluded that the school district
had to reimburse Charlene for the nursing costs she incurred during the
1993-94 school year and had to provide such services in the future.              The
school district appealed to United States District Court.


     In district court, both parties filed motions for summary judgment
based on the record from the administrative hearing.            The court granted
summary judgment in favor of Garret finding that the services were not
within the scope of the "medical services" exclusion of the IDEA, and
therefore, the school district was required to provide them as "related
services."    The school district appealed.


                                  STANDARD OF REVIEW
     The court will review the district court's interpretation of the
applicable federal statutes de novo on appeal.         Dell v. Board of Educ., 32
F.3d 1053, 1058 (7th Cir. 1994).


                                     DISCUSSION
     In order to receive funds under the IDEA, a state must demonstrate
to the Secretary of Education that it has "in effect a policy that assures
all children with disabilities the right to a free appropriate public
education."     20   U.S.C.   §    1412(1)   (Supp.    1996).   The   phrase   "free
appropriate public education" is defined as special education and related
services.    20 U.S.C. § 1401(18)




                                         -3-
(1990).3    Thus, if Garret's nursing services qualify as "related services,"
the school district must provide them.


      Related services are statutorily defined as:
             transportation, and such developmental, corrective,
             and other supportive services (including speech
             pathology and audiology, psychological services,
             physical and occupational therapy, recreation,
             including therapeutic recreation, social work
             services,     counseling     services,    including
             rehabilitation counseling, and medical services,
             except that such medical services shall be for
             diagnostic and evaluation purposes only) as may be
             required to assist a child with a disability to
             benefit from special education, and includes the
             early identification and assessment of disabling
             conditions in children.

20 U.S.C. § 1401(a)(17) (Supp. 1996) (emphasis added).               Garret contends
that his nursing services qualify as related services, but the school
district    argues   that   the    services   are    "medical   services"   which   are
expressly    excluded   from      the   definition    of   supportive   services    and
consequently the definition of related services.


      This court's decision is controlled by the two step test pronounced
by the Supreme Court in Irving Indep. School Dist. v. Tatro, 468 U.S. 883
(1984).    To determine if a service is a related



      3
       The full definition is:

      special education and related services that-

      (A) have been provided at public expense, under public
      supervision and direction, and without charge,
      (B) meet the standards of the State educational
      agency,
      (C) include an appropriate preschool, elementary, or
      secondary school education in the State involved, and
      (D) are provided in conformity with the individualized
      education program required under section 1414(a)(5) of
      this title.

      20 U.S.C. § 1401(a)(18) (1990).


                                          -4-
service under the IDEA, the court must first determine whether the service
is a "supportive service[] . . . required to assist a child with a
disability to benefit from special education."                 20 U.S.C. § 1401(17)
(1990); Tatro, 468 U.S. at 890.         If it is, then the court must determine
if the service is excluded from the definition of supportive service as a
medical service beyond diagnosis or evaluation.              Tatro, 468 U.S. at 890.



       There is little argument about whether the services Garret requires
qualify as supportive services necessary to enable him to enjoy the benefit
of special education.      If the services are not available during the school
day,   Garret   cannot    attend    school   and   thereby    benefit   from   special
education.   "Services . . . that permit a child to remain at school during
the day are no less related to the effort to educate than are services that
enable the child to reach, enter, or exit the building" which are expressly
provided for in the IDEA.          Id. at 891.     Thus, the court finds that the
services Garret requires at school are supportive services.


       At the second step, the court must determine whether the services are
excluded from the definition of supportive services as medical services
beyond diagnosis and evaluation.        In Tatro, the Supreme Court established
a bright-line test:      the services of a physician (other than for diagnostic
and evaluation purposes) are subject to the medical services exclusion, but
services that can be provided in the school setting by a nurse or qualified
layperson are not.    See Tatro, 468 U.S. at 891-95.           Regardless of whether
we agree with this reading of the statute and the regulations, we are bound
by the Supreme Court's holding.


       Here, Garret's services are not provided by a physician, but rather,
a nurse.   Thus, based on Tatro, the services are not medical services, but
rather, school health services or supportive services, both of which meet
the definition of related services




                                         -5-
which the district must provide.     See 34 C.F.R. § 300.16(a), (b)(11)
(1996).


     The court is aware of several decisions that have not interpreted
Tatro as establishing a bright-line, physician/non-physician test for
medical services.    See Detzel v. Board of Educ. of Auburn, 637 F. Supp.
1022 (N.D.N.Y. 1986), aff'd, 820 F.2d 587 (2d Cir. 1987), cert. denied, 484
U.S. 981 (1987); Granite School Dist. v. Shannon M., 787 F. Supp. 1020 (D.
Utah 1992); Neely v. Rutherford County School, 68 F.3d 965 (6th Cir. 1995).
Going beyond the physician/non-physician distinction the Supreme Court
found in the statute and the regulations, these courts rely on dicta in
Tatro in order to factor into the medical services exclusion considerations
of the nature and extent of the services performed.   The court declines to
seize dicta in Tatro to go beyond the physician/non-physician test which
the Supreme Court sets forth therein.


     Accordingly, we affirm the judgment of the district court.


     A true copy.


           Attest:


                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                   -6-
