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BEVIN H. v. WRIGHT

August 4, 1987

Bevin H. a minor who sues by her parents and next friends, Michael and Elizabeth H. and Michael and Elizabeth H.
v.
D. Kay Wright, Acting Secretary of Education, Commonwealth of Pennsylvania and The Pittsburgh School District



The opinion of the court was delivered by: WEBER

 Bevin H. is a 7 year old girl who suffers severe mental and physical handicaps. At issue here is whether the School District, under the Education for all Handicapped Children Act (EAHCA), 20 U.C.S. § 1401 et seq., must bear the cost of nursing services necessary to enable Bevin to attend school.

 The issue presented is a difficult one, both in the complexity of the statutory and regulatory scheme and in the ramifications for Bevin of our decision. After an extensive review of the statute, the regulations, and still developing case law, we conclude that the EAHCA does not require the District to provide the extensive nursing services which Bevin requires.

 FACTS

 The essential facts are not in dispute. The parties have submitted a copy of the administrative record, and they have apprised us of developments since the conclusion of administrative proceedings.

 At this writing, Bevin is 7 years old and resides with her parents. She suffers from multiple handicaps, principally Robinow syndrome (fetal face syndrome), severe broncho-pulmonary dysplasia, profound mental retardation, spastic quadriplegia, seizure disorder and hydrocephalus. She is also legally blind. She breathes through a tracheostomy tube and is fed and medicated through a gastrostomy tube.

 As Bevin neared school age, her parents sought an educational program to improve on her severely delayed development. In 1984 the Pittsburgh School District agreed to admit Bevin to its Pioneer School in a special curriculum for handicapped children, with the stipulation that Bevin's parents would bear the cost of the nursing services and related equipment which Bevin required. The parents agreed to this arrangement. It is undisputed that without these nursing services, Bevin would be unable to attend school.

 In October 1984, Bevin was placed in a classroom with 6 other handicapped children. The Individualized Educational Program (IEP) developed for Bevin in consultation with her parents provides for auditory, visual and tactile stimulation and fine and gross motor development. The goal is to improve Bevin's awareness of and interaction with the world around her. All parties agree that, with the exception of the nursing services issue, this program is the most appropriate and least restrictive educational plan for Bevin.

 For the 1984-85 school year, Bevin's parents agreed to provide the full-time nurse and related equipment which Bevin requires at all times. The cost of this nursing service, from the time Bevin leaves home in the morning until she returns home from school in the afternoon, is about $ 1,850 per month and was paid for by the parents' health insurance. The fact that the District did not have to pay for these services was apparently a salient factor in the District's decision to admit Bevin to a classroom.

 Unfortunately, Bevin's insurance coverage has a ceiling of $ 500,000 and by the time this suit was filed her medical needs had already consumed $ 120,000. In addition to the $ 1,850 per month for the attending nurse for school, Bevin's other routine medical expenses are between $ 500 and $ 1,000 per month. The prospect of exhausting Bevin's medical coverage prompted her parents to request that the School District assume the expense of the nurse who must care for Bevin in school. The District refused, prompting the institution of administrative proceedings and ultimately this action.

 In the 1984-85 school year, Bevin attended class from 8:30 A.M. to 12:30 P.M., Monday through Thursday, with a full school day on Friday. On a typical school day, the nurse accompanies Bevin to school in a cab, suctioning the tracheostomy tube as needed. On arrival at school, Bevin is fed through the gastrostomy tube. She then has a classroom session with her teacher and classmates. This is followed by a period of chest physical therapy in which mucous is suctioned from the lungs. Bevin returns to class for further activities and is then escorted home by the nurse. Because of the nature of Bevin's condition, and specifically because of the possibility of a mucous plug interfering with breathing, the nurse is with Bevin every moment of the school day.

 In contrast to Bevin, her 6 classmates, all with multiple handicaps, do not require the extensive nursing attention which Bevin requires. Although each of these children has a tracheostomy, each is able to care for and clear the tube without assistance. The class is conducted by a teacher and 2 aides, but no nurse is assigned to the class.

 There is some dispute about the amount of progress that Bevin has made in her educational program. Bevin's mother and nurse report that Bevin's interaction with people has increased, that she is more aware of familiar voices and sounds, and she appears to express feelings of joy. Standing activities have improved weight-bearing capacity and permitted growth. On the other hand, Bevin's teacher indicates that while some progress has been noted, it is inconsistent and minimal. However, as noted above, there is no dispute that this program is the most appropriate and ...


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