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ALLSTATE INS. CO. v. BETHLEHEM AREA SCH. DIST.

December 30, 1987

Allstate Insurance Company, Plaintiff
v.
Bethlehem Area School District and B B, a Minor by and through his Parents and Natural Guardians, J B and N B and J B and N B, Individually, Defendants



The opinion of the court was delivered by: TROUTMAN

 TROUTMAN, S.J.

 This case, in which the plaintiff alleges that the Court's jurisdiction is based upon federal law and diversity of citizenship, presents a situation unique in the application of statutes designed to enhance opportunities for handicapped students under the Education for All Handicapped Children Act, 20 U.S.C. § 1400, et seq. (EHA) and the Rehabilitation Act of 1973, 29 U.S.C. § 794.

 In 1982, B B was injured in an automobile accident, resulting in the permanent implantation of a tracheostomy. *fn1" Because the tracheostomy is the means by which B B breathes, he needs, at all times, ready access to a trained attendant who can maintain the airway should the need arise.

 Pursuant to an automobile liability insurance policy under the terms of the former Pennsylvania No-Fault Motor Vehicle Insurance Act, 40 Pa. Stat. Ann. § 1009.101, et seq. (repealed), Allstate has paid the child's medical expenses, including the cost of the attendant, since the date of the accident. When B B returned to classes in the Bethlehem Area School District in 1986, Allstate demanded that the school district begin paying the cost of the attendant during the school day, contending that the presence of the attendant is a "related service" under the EHA and Rehabilitation Act. When the school district refused, Allstate instituted the present suit, seeking the Court's declaration that the attendant is a related service for which the defendant school district is obligated to pay.

 In Count II of the amended complaint, Allstate seeks a declaration against B B's parents, J B and N B, that the insurance policy, which reduces coverage for certain government benefits which an insured is entitled to receive, does not cover the cost of the attendant during the school day.

 Defendant Bethlehem Area School District has moved for a stay of proceedings here, invoking the doctrine of "primary jurisdiction". The school district contends that where the legislation upon which an action is based provides for administrative procedures, the Court should defer to the expertise of the administrative agency, staying its hand until the agency has acted. Here, the school district argues, there is a comprehensive "due process" mechanism through which the term "related service" must be defined. Thus, the Court should refer the action to the appropriate education agency for its initial determination of whether the cost of the attendant is a "related service" under the EHA.

 Plaintiff argues that there are no "special education issues" involved which would warrant referral to an agency. Specifically, plaintiff contends that,

 
The only real issue in the case concerns whether the health needs of the minor, B B, must be provided for by the Bethlehem Area School District pursuant to the Education of the Handicapped Act or the Federal Rehabilitation Act. . . .
 
Therefore, the only issue remaining in this case concerns the interpretation of the insurance policy issued by Allstate Insurance Company, and an application of the facts of B B's medical condition and health needs, to the Federal Statutes. . . .
 
There is no issue before this Court concerning the educational needs of the minor child."

 (Answer of Plaintiff to Motion of Defendant, Bethlehem Area School District, for a Stay of Proceedings, Doc. # 15 at 2. Citations omitted. Emphasis in original.).

 As a response to plaintiff's motion, this argument reveals a complete lack of understanding of the statutes upon which the plaintiff purportedly relies. The EHA, and in this context, the Rehabilitation Act, are not statutes to provide for the "health needs" of school-age children. The EHA was enacted, "To assure that all handicapped children have available to them . . . a free appropriate public education which emphasizes special education and related services designed to meet their unique needs . . ." 20 U.S.C. § 1400(c). Moreover, the definition of "related service" in the EHA inextricably connects it to special education: "The term 'related services' means transportation, and such developmental, corrective, and other supportive services . . . as may be required to assist a handicapped child to benefit from special education . . .". 20 U.S.C. § 1401(17). *fn2" It is, in fact the combination of "special ...


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