What if Tom Sawyer or Huckleberry Finn were to walk into my office tomorrow? Tom's indifference to schooling and Huck's 'oppositional' behavior would surely have been cause for concern. Would I prescribe Ritalin for them too?⁽²⁾
 

I. INTRODUCTION

Tom Sawyer and Huck Finn were two legendary behavior problems, plying the western shores of the great Mississippi River, skipping school and getting into mischief.⁽³⁾ For Tom and Huck, reading, writing and 'rithmetic were not priorities, despite the dogged efforts of Tom's Aunt Polly to get them to school. If Tom and Huck were in our schools today, one might wonder how they would fare; perhaps they would be identified as children in need of special education, diagnosed as having a learning disability such as Attention Deficit Hyperactivity Disorder. Aunt Polly may take them to a doctor in Hannibal, Missouri, who prescribes Ritalin, a lot of Ritalin, to treat Tom and Huck's ADHD. However, when Tom and Huck return to school, the school would refuse to give them their dosage of Ritalin during the school day because the prescribed amount exceeds the recommended dosage in nationally recognized reference books. Aunt Polly sues.

Although Tom and Huck were only figments of Mark Twain's imagination, the issue of whether school districts have the responsibility to administer drugs such as Ritalin, or other medications, to students with ADHD did arise in two school districts just a stone's throw from Hannibal, Missouri.⁽⁴⁾ Parents of students attending those districts each brought an action to compel school districts to administer the dosage of Ritalin prescribed by the students' physician. The dosages were in excess of that recommended by nationally recognized guidelines in the Physicians Desk Reference. Both cases floated down river to the Eighth Circuit Court of Appeals, which was called upon to address the growing dilemma on what to do with Tom and Huck.

II. BACKGROUND

More and more children with special needs are attending public schools. Many of these children may have doctor's prescriptions requiring that medication be given during the school day. School district employees, such as school nurses or other educational support personnel, are frequently called upon to dispense medication, administer or supervise injection of drugs such as insulin for children with diabetes, or help with the insertion of catheters and breathing tubes. School districts are not generally obligated to dispense medication to their students; however, many schools districts have policies that allow for school employees to administer or dispense medications, and also supervise or administer injections for children during the school day. Indeed, Nebraska has passed legislation regulating the training required for those persons who are going to administer medications, both prescription and non-prescription, in the public schools.⁽⁵⁾ Along these same lines, federal legislation set forth in Title II of the Americans with Disabilities Act⁽⁶⁾ ("ADA"), the Individuals with Disabilities in Education Act⁽⁷⁾ ("IDEA"), and § 504 of the Rehabilitation Act⁽⁸⁾ ("§ 504"), may, in some cases, require school districts to administer medication to disabled students, if the medication is necessary for the student to benefit from the educational program offered by the school.

In American schools, the medical condition most frequently treated with prescription medication is "Attention Deficit Hyperactivity Disorder"⁽⁹⁾ ("ADHD"). The term ADHD refers to symptoms of inattention, distractibility, impulsiveness and is usually associated with excessive motor activity (hyperactivity). ADHD is most commonly recognized after a child begins school, although its onset usually occurs in pre-school years with symptoms often persisting throughout childhood and into adult life.⁽¹⁰⁾ Estimates as to the number of school age children suffering from ADHD vary; one commentator puts the number between 4% and 10% of all school age children currently suffer from ADHD⁽¹¹⁾; another states that ADHD is diagnosed in roughly five percent of young children.⁽¹²⁾ Behaviors associated with ADHD are socially disruptive and can be quite distressing to the child, parents, and school teachers and administrators.

The symptoms of ADHD vary considerably over time. Often social circumstance presented to the child and the child's age account for the variations. Affected children seem to be constantly moving, have difficulty remaining in their seats, exhibit impulsiveness, and frequently speak out of turn or at inappropriate times. ADHD children also may overlook class assignments or may carry them out incompletely. Although hyperactivity tends to diminish as the child matures, attentional problems and associated learning disabilities can persist into adolescence and adulthood. As children become young adults, they often exhibit emotional immaturity, poor self-image, and an inability to maintain goals.⁽¹³⁾

One of the most frequently prescribed drugs for the treatment of ADHD in children of schoolage is methylphenidate hydrochloride, better known by its brand name of Ritalin.⁽¹⁴⁾ Some authorities contend that in a school environment, teachers quickly become frustrated with children who are unable to conform to the rigors of the classroom environment; therefore, teachers label many of these children "learning disabled". Labeling students in this manner can produce an almost automatic reaction by school administrators and parents for special education services and medical treatment.⁽¹⁵⁾ One commentator noted:

For some teachers the primarily goal of intervention with Ritalin or behavior modification with hyperactive children is to gain behavioral control and to improve the classroom social behavior.⁽¹⁶⁾
 

Another commentator notes that treatment of the child tends to be narrowly focused on curing their symptoms, rather than determining the underlying cause. Psychostimulant treatments like Ritalin produce a dramatic drop in symptoms, thereby satisfying demands of an educational setting, but doing little, if anything, to actually cure the child.⁽¹⁷⁾ Thus, the cure for the disorder becomes the ability of the child to conform with the demands of the classroom. In schools across America, as many as one million children line up every day for a glass of water and that little yellow Ritalin pill; doctors prescribe it, parents agree to it, and school nurses or other designated school personnel supervise the administration of it when required during the school day.⁽¹⁸⁾ Since 1990, the number of children taking Ritalin has more than doubled .⁽¹⁹⁾

A study soon to be released by the National Institute of Mental Health ("NIMH") shows that drugs like Ritalin calm children even better than previously thought, as long as children continue the medication.⁽²⁰⁾ Significantly however, there is no proof that the drugs help kids get better grades or build better lives.⁽²¹⁾ The NIMH study concludes that closely-monitored stimulant drugs can erase enough of the ADHD symptoms to eliminate the diagnosis in 82 to 85 percent of children, and the study suggests that medication given three times a day, with the first two larger than the one before bedtime, is most effective.⁽²²⁾ Researchers found that by monitoring the effect of the drugs on the children on a daily, weekly or monthly basis (e.g. a medication report card) and adjusting prescriptions accordingly, was the most effective way of treating ADHD.⁽²³⁾

As noted above, schools are often participants in the process of diagnosing ADHD and determining whether a child should receive drug therapy. School districts have become increasingly concerned with the number of children taking drug therapy for ADHD.⁽²⁴⁾ As was noted by one school commentator:

As more doctors are diagnosing students with [ADHD] and prescribing Ritalin, parents are demanding that school districts administer Ritalin to their children during school hours. Even though "Ritalin can make the crucial difference between failing a test or sitting long enough to pass it," school administrators are questioning their obligation to administer the drug.⁽²⁵⁾
 

Although the amount of medication to be administered is always in the province of the child's parents and physician, some school districts have adopted policies giving school nurses or other educational support personnel (hereinafter "School Medical Personnel" or "SMP") the discretion to refuse to administer medication if the prescription exceeds a specified amount, such as that recommended in the Physicians Desk Reference ("PDR").
 

III. STATUTORY REQUIREMENTS

The responsibility of a school district to administer medication that is deemed by school's SMP to exceed the daily recommended dosage was addressed in the two recent decisions by the Eighth Circuit Court of Appeals in DeBord v. Board of Education of Ferguson-Florissant School District,⁽²⁶⁾ and Davis v. Francis Howell School District.⁽²⁷⁾ In both cases, the parents of students suffering from ADHD sought to require school districts to administer Ritalin to their children in a dosage that exceeded the recommended daily dosage as indicated by the PDR. The claims of the DeBords and the Davises were based upon a school district's alleged statutory obligation to administer medication under § 504 and Title II of the ADA. Section 504 prohibits a school district from excluding a student from a particular service or program solely on the basis of that student's disability.

No otherwise qualified individual with a disability . . . shall, solely by reason of her of his disability, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity needing federal financial assistance.⁽²⁸⁾
 

Similarly, Title II of the ADA provides:
 

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity.⁽²⁹⁾
 

Section 504 and Title II of the ADA should require a similar analysis, as was noted by the court in DeBord, "Congress intended Title II and it implementing regulations to be consistent with [§ 504] and its regulations."⁽³⁰⁾ In order to qualify for protection under Title II and § 504, a student must demonstrate that he or she is a handicapped individual who:

(1) has a physical or mental impairment that substantially limits one of more major life activities;

(2) has a record of such impairment; or

(3) is regarded as having such impairment.⁽³¹⁾
 

The ADA defines a "disability" as a "physical or mental impairment that substantially limits one or more of the major life activities of such individual."⁽³²⁾ Regulations interpreting § 504 define a physical or mental impairment as any physiological disorder or condition effecting one or more of the following body systems: neurological or mental or psychological disorder, and specific learning disabilities.⁽³³⁾ The § 504 regulations further provide that to have a physical and mental impairment, such impairment must limit a major life activity, defining a major life activity to include "caring for oneself, performing manual tasks, walking, seeing, hearing, breathing, learning, and working."⁽³⁴⁾

Based on these definitions, if a student suffers from a physical or mental impairment that substantially limits his or her ability to learn, that student is disabled, and the school district cannot deny a disabled student a service or exclude that student from a program solely because of that student's disability. Included in those services may be the administration of medications. A student diagnosed with ADHD may qualify as an individual with a disability if the student's condition substantially limits his or her ability to learn. If a student with ADHD qualifies as an individual with a disability under § 504 and Title II, the school district must make an individualized determination of the child's educational needs for regular or special education in related aids or services. To insure disabled students receive a free appropriate education, § 504 requires school districts to provide "regular or special education related aids or services that . . . . meet the needs of the handicap person."⁽³⁵⁾ Thus, in some cases, § 504 may obligate school districts to administer medications to disabled students to enable the student to receive an educational benefit.

Under the most recent version of the IDEA, states are required to insure that schools provide a free appropriate public education to all eligible children with disabilities.⁽³⁶⁾ The IDEA defines children with disabilities to mean children:

With mental retardation, hearing impairments, including deafness, speech or language impairments, visual impairments, including blindness, serious emotional disturbance, orthopedic impairments, autism, dramatic brain injury, or other health impairments, or specific learning disabilities; and who by reason thereof, need special education related services.⁽³⁷⁾
 
 
 

If a child is eligible for IDEA services, a school must provide special education and, if necessary, related services to meet the unique needs of the child. Special education includes instruction in the classroom, at home, or in other settings. Related services include transportation, and developmental, corrective or other supportive services.⁽³⁸⁾ If the student is determined to be IDEA eligible, with ADHD or other conditions, the student is only entitled to enumerated services the student's individualized education plan (IEP) team determines.

IV. DISCUSSION

A. Eighth Circuit Case Law

With this background, the decisions in DeBord v. Board of Education of Ferguson-Florissant School District and Davis v. Francis Howell School District must be considered. In DeBord, the DeBords' eight year old daughter was diagnosed with ADHD. To treat this condition, the doctor prescribed 100 milligrams of sustained release Ritalin when their daughter got up in the morning and 40 milligrams of Ritalin at 3:00 p.m. when she was still at school. The Ferguson-Florissant School District provided health services to students, including administration of prescription drugs during school hours. However, the school district had a written policy against administering prescription drugs in an amount exceeding the recommended daily dosage listed in the PDR.⁽³⁹⁾

The nurse at the daughter's elementary school refused to give her the afternoon dose because the daily intake of Ritalin prescribed exceeded the sixty milligram daily recommendation listed in the PDR. The DeBords appealed the nurse's action to the Board of Education and provided to the Board a letter from their doctor confirming their daughter's prescription, some medical information about high dose use of Ritalin, and an offer to sign a waiver of liability. The school board declined to direct the school administer their daughter's prescription, despite the doctor's opinion that the higher dosage was necessary to treat the DeBord's daughter effectively, she suffered no side effects, and no studies showed that higher dosages were harmful. Instead, the school board offered several alternatives, including alteration of the class schedule to permit early dismissal and home administration of both of their daughter's doses or administration of the afternoon dose at school by one of her parents or someone designated by them.⁽⁴⁰⁾

Dissatisfied with the school district's response, the DeBords brought an action alleging that the school district's refusal to administer the prescribed Ritalin violated § 504, Title II of the ADA and 42 U.S.C. § 1983 (§ 1983). The district court granted summary judgment to the school district concluding that the school district's refusal was not based on the DeBords' daughter's disability, but rather on the district's policy stemming from concerns about potential harm to students and resulting school district liability. More importantly, the district court also concluded that the school district reasonably accommodated the disability under § 504 and the ADA.⁽⁴¹⁾ After discussing the legal requirements of both § 504 and Title II, the district court determined that in order for the DeBords to succeed on their claims, they must show that the school district refused to administer to their daughter's medication because of her disability.⁽⁴²⁾

On appeal, the Eighth Circuit found that the policy adopted by the Ferguson-Florissant School District contained an objective standard limiting administration of prescription medication only when the prescription exceeded the maximum dosage recommended in the PDR, and that there is no evidence that the school district had disabilities in mind when formulating or implementing its policy.⁽⁴³⁾ The Court stated:

The policy is neutral; it applies to all students regardless of disability. A student's excess prescription, not the student's disability, prevents the student from receiving medication from the school nurse (citation omitted). Although [the student] requires Ritalin to treat her disability, it is undisputed that the reason for [the student's] high dosage is probably her metabolism, not the severity of her disability. [the student's] own doctor and others stated the amount of Ritalin needed to treat ADHD is unrelated to the severity of the disorder in any particular patient. Thus, the policy does not discriminate against the severely disabled, as the DeBords assert.⁽⁴⁴⁾
 
 
 

The DeBords argued their daughter was treated differently than other students. The court noted, however, that students who received their medication at school did not have prescriptions exceeding the PDR's recommended daily dosage.⁽⁴⁵⁾ The facts were undisputed that the school district did not knowingly administer prescription drugs to any student, disabled or not, in excess of the PDR's recommendation.⁽⁴⁶⁾

Finally, the Eighth Circuit found that the school district's proposal to establish workable schedules so the family could give her the prescribed dosages of Ritalin constituted a reasonable accommodation under § 504 and the ADA.⁽⁴⁷⁾ Significantly, the Eighth Circuit further found that the waiver suggested by the DeBords is not a reasonable modification or accommodation:

There is no precise reasonableness test, but an accommodation is unreasonable if it either imposes undue financial or administrative burdens, or requires a fundamental alteration in the nature of the program. Although the school district has not made the assertion, adjudication of waiver requests would impose an undue administrative burden on the school district to verify the safety of an excess dosage in each individual case (citation omitted). At this time, no one knows what the long term effects of high doses of Ritalin might be. A waiver of liability might not be effective, and statutory immunity might not apply. These concerns may be speculative, but they are not unreasonable.⁽⁴⁸⁾
 

The Eighth Circuit concluded that the school district reasonably accommodated the daughter's ADHD as a matter of law and did not discriminate against her on the basis of her disability. The Eighth Circuit entered summary judgment in favor of the school district and against the DeBords on their § 504 and Title II claims.⁽⁴⁹⁾ Further, by the DeBord's failure to show a violation of § 504 and the ADA, the DeBord's § 1983 action was also found to lack any basis.⁽⁵⁰⁾

DeBord's next door neighbor (literally) was the Davis case where the Eighth Circuit was presented with only slightly different facts.⁽⁵¹⁾ In Davis, the parents claimed that the refusal of the Francis Howell School District to administer to their son his prescribed dose of Ritalin to treat ADHD violated Title II of the ADA, § 504, and again § 1983. Here too, the district court granted summary judgment and the Davises appealed.

In Davis, their son's treating physician had prescribed a daily dosage of 360 milligrams of Ritalin to control his symptoms of ADHD, up to 120 milligrams of which were to be administered during the school day in one or two doses. The school nurse had been administering his school-time dose for over a year when she expressed concern to Mrs. Davis that the prescription might be dangerous or harmful because it far exceeded the recommended maximum 60 milligrams in the PDR. After hearing a news story about a nurse in a nearby school district (Ferguson-Florissant) who had refused to administer a high dosage of Ritalin prescribed by the same doctor, the school nurse consulted the District Nurse Coordinator and its regular consulting pediatrician about the safety of the son's prescription. Both agreed that the prescription was excessive.⁽⁵²⁾

The parents then provided the School District a second doctor's opinion that the prescribed amount of Ritalin was not a harmful to their son. Nonetheless, the school nurse notified the parents that she would no longer administer the school time dose because the prescription exceeded the maximum dosage recommended in the PDR. The school administrator supported her position when the Davises appealed to him.⁽⁵³⁾ According to the school district's policy⁽⁵⁴⁾ on medication procedures, the nurse had the right and obligation to question and verify potentially inappropriate prescriptions and to refuse to give any medication that does not meet the criteria established in Board policy for giving medications.⁽⁵⁵⁾

To reasonably accommodate the Davises' son, the school district offered to allow the parents or their designee to come to school to administer the medication; Mrs. Davis, a trained nurse, rearranged her work schedule and also arranged for her son's grandmother to give him a dosage.⁽⁵⁶⁾

The Davises then sued the school district alleging that the school district's refusal to administer the drug as prescribed violated Title II of the ADA and § 504 and deprived their son of his rights protected by § 1983.⁽⁵⁷⁾ Summary judgment was granted to the school district by the district court on the grounds that the Davises had not produced evidence that their son had been discriminated against because of a disability and that the alternative arrangement was not a reasonable accommodation.The district court also held that the Davises had no actionable claim under § 1983.⁽⁵⁸⁾

On appeal to the Eighth Circuit, the court found that under both Title II of the ADA and § 504, the Davises must show that their son was a qualified individual with a disability and that he was denied the benefits of a program, activity, or service by reason of that disability. The court found that the Davises had not offered evidence that the school district's action was taken because of their son's disability rather than on account of its policy and underlying concerns about student health and potential liability. The Court therefore,concluded, that the Davises had failed to establish a required element of their claims.⁽⁵⁹⁾ The court stated:

Although the Davises question the wisdom of the district's policy and its rationale, they have not challenged the truthfulness of its stated reasons for its decision. They cannot show that the district's policy is discriminatory because it "applies to all students regardless of disability" and rests on concerns "unrelated to disabilities or misperceptions about them." DeBord, 126 F.3d, at 1105. Because the school district's refusal to administer [the student's] Ritalin was based on the conflict between the size of his prescribed dosage and the district's neutral policy, rather than on the type of disability [the student] has or its severity, summary judgment was properly granted on the Davises' Title II and § 504 claims. See id. at 1105, 1106.⁽⁶⁰⁾
 

The Davises also argued that notwithstanding the district's policy and its stated concerns, the district was still not excused from its duty to accommodate their son's disability under § 504 and Title II of ADA. The court did not determine whether failure to make reasonable modifications in a policy is itself discrimination even where the policy and its rationale are not be shown to be discriminatory.⁽⁶¹⁾ The court found that it did not need to reach that question because even if the school district was required to modify its procedure for the administration of medication to accommodate the prescription, its offer to allow the Davises or their designee to give their son Ritalin during the school day was a reasonable accommodation as a matter of law.⁽⁶²⁾ Furthermore, the court again found, as it did in DeBord, that the proposal that the district waive its policy is not reasonable, because it would impose undue financial and administrative burdens on the district by requiring it to determine the safety of the dosage and the likelihood of future harm and liability in each individual case. The Eighth Circuit concluded that by offering an alternative arrangement, the district did not prevent the Davises' son from receiving his medication and reasonably accommodated his disability as a matter of law.⁽⁶³⁾

Interestingly, Circuit Judge Bright, in a concurring opinion, argued that the amount of medication necessary for treatment of ADHD does not relate to a student's disability.⁽⁶⁴⁾ Judge Bright stated " . . . it seems to me that if the school administers adequate medication for one child's disability and inadequate medication for another child's similar disability, the school policy discriminates." However, Judge Bright concluded that the arrangements made by the school district reasonably accommodated the Davises son's disability.⁽⁶⁵⁾

B. Applying DeBord and Davis to Tom and Huck.

DeBord and Davis appear to carve out two safe harbors for school districts who wish to limit their responsibility to administer prescription medications to students: (1) The adoption by the school district of an "objective" or "neutral" policy limiting the dosage of a prescription drug that the school district will administer to a predetermined level; and, (2) the establishment of an alternative means to administer medication in excess of the predetermined level in order to provide a "reasonable accommodation" of the student's disability by providing alternative means of administering medication to student.

(1) Objective Standard. The court in DeBord addressed the parents' argument that the school district's refusal to provide the nonacademic service of drug administration denies a student a free appropriate education "because without .... [the] full dosage of Ritalin, [the student] cannot benefit from the school's educational program." While a school district is not permitted to condition a child's eligibility for education on parental consent to medication or other health services,⁽⁶⁶⁾ the U.S. Department of Education, Office of Civil Rights, interpreting § 504, has held that if the child needs medication to assist in benefiting from the educational program, administration of the medication is a required related service.⁽⁶⁷⁾ The Eighth Circuit in DeBord distinguished the OCR cases on the basis that unlike the drug administration policy in the OCR cases, the policy found in both DeBord and Davis contain an objective standard limiting administration of prescription medication only when the prescription exceeds the maximum dosage recommended in the PDR.

The schools districts in DeBord and Davis both stated that their policies were motivated by fear of student harm and potential liability if administration of prescription medications to students went unfettered. The liability concern has been legislatively eliminated in at least one state. In Connecticut, the legislature adopted a provision to regulate the administration of medications in schools. One portion of that statute provides:

No such school nurse or other nurse, principal or teacher shall be liable to such student or a parent or a guardian of such student for civil damages for any personal injuries which result from acts or omissions of such school nurse or other nurse, principal or teacher in administering such preparations which may constitute ordinary negligence. This immunity shall not apply to acts or omissions constituting gross, willful or wanton negligence.⁽⁶⁸⁾
 

Absent such statutory protection, school districts could be found liable for injury suffered by an over-medicated student if the prescription was in excess of the published recommended dosage. Obviously the best way to avoid both injury and litigation is to refuse to administer medication during the school day. However, this is not possible for those handicapped children that are in need of such service during school hours, but is possible for many children to be medicated at other times. The Supreme Court made this position clear in Irving Indep. School Dist. v. Tatro⁽⁶⁹⁾ when it stated that

only those services necessary to aid a handicapped child to benefit from special education must be provided, regardless how easily a school nurse or lay person could furnish them. For example, if a particular medication or treatment may appropriately be administered to a handicapped child other than during the school day, a school is not required to provide nursing services to administer it.⁽⁷⁰⁾

Thus, should a circumstance similar to those presented in DeBord and Davis arise, an alternative reasonable accommodation may be to determine if the medication can be administered after school has been dismissed for the day; or, if the dosage given by the school is limited to the level recommended in the PDR, adjustment can be made to the level of medication given either before or after school.

While Ritalin is considered to be relatively safe, it does have side affects including interference with a child's growth rate and delays in a child's development.⁽⁷¹⁾ The school district's concern of protecting students from harm from medications prescribed by their physicians, whether ill-founded or not, were found by the court in DeBord to be "unrelated to disabilities or perceptions about them".⁽⁷²⁾ The key to the success of the school districts in both DeBord and Davis was the finding of the court that the policies were neutral; e.g. it was the student's excess prescription, not the student's disability, that prevented the student from receiving the Ritalin from the school nurse.⁽⁷³⁾ However, as noted by Judge Bright in his concurring opinion in Davis, it could be argued that "if the school administers adequate medication for one child's disability and inadequate medication for another child's similar disability, the school policy discriminates".⁽⁷⁴⁾ Judge Bright found nonetheless that even if the schools district's refusal to administer Ritalin in excess of the PDR was discriminatory, the school district made a reasonable accommodation of the student's disability by arranging for alternative means for administering the medication by the student's parents or their surrogates.⁽⁷⁵⁾

This raises issues of both public policy and legal obligation for school districts. First, should a school district place itself in the position of policing doctor prescribed medications? The NIMH study suggests that giving Ritalin three times a day is preferable, and that dosages should be altered after monitoring the effectiveness of the drug.⁽⁷⁶⁾ As such, differences in the metabolic rate of the student could account for doses of Ritalin in excess of that recommended in the PDR; thus, the argument expressed by Judge Bright that an objective policy relying on the recommended dosage in the PDR discriminates against students whose metabolic rate requires a dosage greater than that recommended in the PDR is plausible.

Conversely, school districts are under pressure not to be a party to the use of behavior-altering drugs to make children conform to societal expectations. One commentator, Dr. Lawrence Diller, succinctly states the societal and ethical concern of many parents, educators and physicians:

The 700 percent jump in Ritalin production in the 1990's does reflect an imbalance, but I characterize it as a "living imbalance" rather than a neurochemical one. Parents and teachers alike are trapped in a web of fear and anxiety about their own and America's future. This translates into demands for higher performance in school (and a an earlier age), even as class size has climbed, and funding for public education has stagnated or shrunk. It makes "average" grades and vocational or artistic tracks unacceptable to middle-class families. The same anxiety paradoxically makes parents less available to their children, as they work longer and harder to achieve economic security.
 

In such times, Ritalin seems to many like the right prescription: It works fast, it's relatively cheap, and it usually improves behavior and performance in the short term. It permits children and adults who are "square pegs" to fit into the "round holes" provided by the culture.⁽⁷⁷⁾
 

At the beginning of this article, Dr. Diller asks the tough question about Tom and Huck; the question that now confronts physicians, parents and school districts.

Schools have always had their Tom Sawyers and Huckleberry Finns; but what schools struggle with is whether schools should be co-participants with parents and physicians in the Ritalin revolution. By staking out an objective or, using the words of the DeBord court, a "neutral" position with regard to the administration of prescription medication to students, school districts can place a limit on their participation and cause parents and physicians to consider whether medications beyond the recommended dosage will be administered to children.

(2) Reasonable Accommodation and the Provision of Medical Services by Schools.

As noted above, the Eight Circuit in both DeBord and Davis found that even if the school district were required to modify its procedure for the administration of medication to accommodate the student' prescription, the school districts' offer to allow the parents or their designee to give the student his/her Ritalin during the school day was a "reasonable accommodation" as a matter of law.⁽⁷⁸⁾ Neither the DeBord or Davis opinion addressed the issue of whether the administration of prescription medication was a service related to the educational program of the school district and therefore must be provided under the provisions of the IDEA.⁽⁷⁹⁾

The 1984 decision of the Supreme court of the United States in Irving Independent School District v. Tatro⁽⁸⁰⁾ held that clean, intermittent catheterization was a related service that had to be provided under the IDEA to permit a child with a neurogenic bladder to remain in school all day.⁽⁸¹⁾ The Court said that nursing services must be provided by the school district if they can be performed by a nurse or other qualified person, though not if they need to be performed by a physician. The opinion noted that not even a nurse was needed to perform catheterization; a properly trained lay person could provide the service. The Tatro court followed the decision in Tokarcik v. Forest Hills School District,⁽⁸²⁾ which held that clean, intermittent catheterization was a related service on the grounds that it enabled a child to attend school, and that related services do not have to be educational or therapeutic in nature.⁽⁸³⁾

The Eight Circuit visited this issue in the recent case of Cedar Rapids Community School District v. Garret F., where the court found that continuous nursing services required by a quadriplegic student, to monitor the student's breathing and other biological needs was a "related service" under the IDEA, and the school district was therefore required to provide such service to the student.⁽⁸⁴⁾ The court held that the service was a supportive service necessary to enable the student to enjoy the benefit of special education.⁽⁸⁵⁾ The Eighth Circuit then followed Tatro in finding that since the service could be provided by a nurse and not a physician, it was not a medical service excluded from IDEA coverage.⁽⁸⁶⁾

Certainly prescription medication, such as Ritalin, can be administered by a school nurse or even a properly trained lay person. The proposed regulations under the reenacted IDEA provide that the team developing a child's Individualized Education Plan (IEP) for a student receiving special education services should,

In the case of a child whose behavior impedes his or her learning or that of others, consider, if appropriate, strategies, including positive behavioral interventions, strategies and supports to address that behavior.⁽⁸⁷⁾
 

The regulation goes on to provide that if the IEP team determines that a child needs a particular device or service in order for the child to receive a free appropriate public education, the IEP team must include a statement to that effect in the child's IEP.⁽⁸⁸⁾ And the IEP itself must contain a statement of the special education and related services and supplementary aids and service to be provided to the child.⁽⁸⁹⁾ It follows that an IEP could state that one of the related services or supplementary aids and services to be provided to the student is the administration of medications. It appears clear that parents could assert, as they did in DeBord and Davis,⁽⁹⁰⁾ that the administration of the physician prescribed dosage of Ritalin is required as a supportive service under the IDEA to control the student's ADHD symptoms. However, the DeBord court, addressing the question stated:

The DeBords argue the school district's refusal to provide the nonacademic service of drug administration denies [the student] a free appropriate education because without her full dosage of Ritalin, she cannot benefit from the school's educational program. See 34 C.F.R. §§ 104.33(a), .33(b)(1)(1996). The administrative agency charged with enforcing the Rehabilitation Act in school districts has held that when a "handicapped student[] requires the administration of medication in order to benefit from his or her educational program, the [school district] is obligated to ensure that the medication is administered." Berlin Brothersvalley (PA) Sch. Dist., OCR Region III, 353:124 (Dec. 23, 1988). The agency concluded the Berlin district's policy granting school officials unspecified discretion to decline administration of medication and requiring the student's parents to release the district from liability violated 34 C.F.R. §§ 104.33(a) and (b)(1). The DeBords rely heavily on this agency interpretation, and say we must give it substantial deference. See Blum v. Bacon, 457 U S. 132, 141, 72 L.Ed. 2d 728, 102 S. Ct. 2355 (1982). Unlike the drug administration policy in Berlin, the policy here, contains an objective standard limiting administration of prescription medication only when the prescription exceeds the maximum dosage recommended in the PDR. There is no evidence that the school district had disabilities in mind when formulating or implementing its policy.⁽⁹¹⁾
 

Surprisingly, no mention is made by either the DeBord or Davis court of the IDEA, or the IEP of either student. Perhaps the students were not special education students, though this appears doubtful. More likely, the IEP for each student was silent as to the use of medication as part of the student's educational program, and did not provide that the administration of the medication was part of the educational services to be provided by the school district.

The dilemma facing school districts is if the IEP makes Ritalin part of the students educational program in dosages higher than that recommended in the PDR, and the school district has a neutral policy on the administration of medication, what is the school district to do? DeBord indicates that even if the medication benefits the educational program of the student, if the school district has an objective or neutral policy, and reasonably accommodates the administration of medication in excess of the PDR, the school district will have satisfied its responsibility to provide services to the student. However, it would follow that if the IEP for the student specifically states that the school district will administer the medication in a dosage in excess of the PDR, the school district would in all likelihood be required to implement the provisions of the IEP. In such a case, the specific IEP would prevail over the general policy, and would destroy the "neutral" character of the medication policy.

To preserve a neutral policy, if the administration of medications is to be included in IEP's, the IEP should provide that the administration of all such medications shall be consistent with the school district's medication administration policy. The medication administration policy should then limit the school district's responsibility to administer the medication to the recommended dosage in the PDR, and outline the steps parents must follow to obtain a reasonable accommodation of the administration of the dosage in excess of the PDR.

C. HANDLING MEDICATION

Although school districts may have employees administer medication, school district employees may not medically diagnose ailment or prescribe treatment, even if the medication is nonprescription such as aspirin or vitamins. Because school children are alomost always minors, written authorizations from a student's parent must be signed and on file with the school district. This practice should be followed even if the medication is to be self administered.

If the medication has been presribed by a physician, it would be prudent for the school district to obtain a written authorization from the physician also to verify that the medication has in fact been prescribed.⁽⁹²⁾ The physician's authorization should, when possible, include a description of the probable reactions to the medication, side effects, and emergency treatment.⁽⁹³⁾ Although such authorizations would permit the issuance or administration of medication by school district employees, they in no way protect school personnel from liability if a child is injured due to a lack of proper supervision or an error in administration unless statutory protection is provided such as that adopted by the state of Connecticut discussed above. School districts should adopt a comprehensive policy regarding medication administration should include a statement indemnifying those employees who are responsible for administration, while school districts should carry adequate commercial insurance or establish a self-insurance plan sufficiently large to cover possible suit.⁽⁹⁴⁾

If a school district determines to undertake administering medication to students, school districts must take reasonable steps to ensure that it is competently rendered. Guidance as to the proper procedures for handling and administering medications in schools is provided by Stephen B. Thomas in his book Health Related Legal Issues In Education⁽⁹⁵⁾, where he states:

[I]ndividuals responsible for administration must be properly trained both in regard to the method of administration and to the effects of the specific drugs in use. Proper administration would include proper technique in the handling of needles and syringes, as well as assurances that the correct medication in the right quantity is being administered. When children are to self administer, they should do so in the presence of the school nurse or trained lay person, but should not do so in front of other children. Furthermore, federal statutes do not require districts to hire physicians, psychiatrists, or LPNs to supervise the procedures. Students who are responsible for self administration should not be permitted to carry the medication; and, for security purposes, all medication should be stored by school officials in a locked compartment.
 

Medication should be delivered to school officials with the label intact. The label should include the student's name, date of expiration, and directions for use (i.e., dosage; when to consume; what, if anything, to eat or drink when consuming). Also on file should be the student's home or emergency phone number; the name, strength, and serial number of the medication; the names and phone numbers of the physician and pharmacist; and storage instructions (e.g., avoid sunlight, store between thirty-five and sixty degrees). Observe that this recommendation requires that the name of the drug be on file rather than on the label. ... Such records also should include notation of the receipt, use, return, and disposal of drugs, syringes, and needles. Additionally, it is recommended that a record be maintained regarding observations of what are thought to be unforeseen medication related changes in behavior.⁽⁹⁶⁾
 

While medication records are needed in case of emergency and therefore should be readily available in a student's file, care must be taken to protect the privacy interests of the child. A student could be stigmatized if it were generally known that a student was taking a particular kind of drug such as Ritalin or Prozac.

IV. CONCLUSION

In school districts with drug administration policies such as those found in DeBord and Davis care should be taken in the development of IEP's for students to consider the limitations placed on the school district by an objective or neutral policy. The school district medication policy must state in no uncertain terms that the school district will not "knowingly administer prescribed medication that exceeds the daily recommended dosage" in the Physician' Desk Reference or similar medical treatise.

However, just having the policy is probably not sufficient. The school district must apply the policy to all students in the same "objective" or "neutral" manner, whether they were disabled or not when requests were made for the administration of prescription medicine. Care should be taken to assure that the IEP's for special education students are consistent with and protect the neutral and objective position of the school district policy. In any IEP or circumstance when the prescribed dosage of medication exceeds the PDR, the district should offer reasonable accommodations such as those provided for in both DeBord and Davis to insure that the student can receive his or her prescribed dosage.

Any policy with regard to the administration of medications should be certain to follow the requirements of the state statutes or regulations governing who may administer medication. Such a policy should require parents of students to follow certain procedures prior to the school district administering the medication and include a written consent form granting the school district permission to administer the medication and a signed prescription from the child's physician to placed on file with the school district.

If the school district follows these procedures, they should limit their liability and responsibility in administrating medication. Additionally, they may avoid the accusation by some that school districts are doping the Tom Sawyers and Huckleberry Finns of the world with Ritalin, or other behavior modifying drugs, to make square pegs fit in the round holes that society in the 90's seems to demand.
 
 

1. Shareholder, Perry, Guthery, Haase & Gessford, P.C.; Lincoln, Nebraska. J.D. 1981, University of Nebraska. President, Nebraska Council of School Attorneys, 1991-92. Member, National Council of School Attorneys.

2. Lawrence H. Diller, M.D., Running on Ritalin, Bantam Books, September 1998, pg. 10.

3. The Adventures of Tom Sawyer, Samuel L. Clemens. Dodd, Mead & Company, 1958, 1981 Ed.

4. DeBord v. Ferguson-Florissant School District, 126 F.3d 1102 (8th Cir. 1997); Davis v. Francis Howell School District, 138 F.3d 754 (8th Cir. 1998).

5. LB 1354, Laws of 1998, Nebraska Unicameral, §§ 8 to 32.

6. 42 U.S.C. §§ 12131-12165 (1990)

7. 20 U.S.C. §§ 1400-1420 (1994)

8. 29 U.S.C. §§ 706 et seq. (1998)

9. American Psychiatric Association , Diagnostic and Statistical Manual of Mental Disorders, 50, n. 1 (2nd Ed. Rev. 1987), hereinafter DSM-III-R; and American Medical Association Encyclopedia of Medicine, 552 n. 1.

10. Victor W. Henderson, Symposium on Biomedical Technology and health Care: Social and Conceptual Transformations: Technical Article: Stimulant Drug Treatment of the Attention Deficit Disorder, 65 S. Cal L. Rev. 397, November, 1991 .

11. James C. O'Leary, "An Analysis of the Legal Issues Surrounding the Forced Use of Ritalin: Protecting A Child's Right to "Just Say No", 27 New Eng. L. Rev. 1173, 1174-75 (1993).

12. Nadine M. Lambert et al., "Prevalence of Hyperactivity in elementary School Children as a Function of Social System Definers" 48 AM. J ORTHOPSYCHIATRY 446 (1978).

13. Henderson, supra, page 397.

14. As manufactured by the CIBA-Geigy Pharmaceutical Company, Summit, New Jersey. 46 Physicians' Desk Reference 880 (1992).

15. O'Leary, supra note 3, 1173-74.

16. O'Leary, supra note 3, at 1173; see, Barbara K. Keogh & Catherine J. Barkett, An Educational Analysis of Hyperactive Children's Achievement Problems, in Hyperactive Children: The Social Ecology of Identification and Treatment 4 (Carol K. Whalen & Barbara Henker eds., (1980), note 1, at 259.

17. O'Leary, supra, at 1174; Dorthea M. Ross & Sheila A. Ross, Hyperactivity: Current Issues, Research and Theory 1 (2d Ed. 1982), supra notes 1, at 17.

18. Susan Brink, "Doing Ritalin Right", U.S. News and World Report, November 23, 1998, p. 76.

19. LynNell Hancock, "Mother's Little Helper", Newsweek, March 18, 1996, at 51.

20. "Diagnosis and Treatment of Attention Deficit Hyperactivity Disorder", National Institutes of Health, Consensus Statement (Draft) on at http://odp/od.nih.gov/consensus/cons/110/110

statement.htm, November 16-18, 1998; 16(2)(1/11/99).

21. Brink, supra at 76.

22. Id. at 76.

23. Id. at 77.

24. Hancock, supra note 2, at 51.

25. Melanie Gurley Keeney & Martha M. Neville, Peper, Martin, Jensen, Michael & Hetlage, Attorneys at Law, St. Louis, Missouri, "Should Schools Be Required to Administer Ritalin?", School Law in Review 1997, National School Boards Association, 1997, at 9-2 through 9-3, and note 21 at 9-3.

26. DeBord v. Board of Education of Ferguson-Florissant School District, 126 F.3d. 1102 (8th Cir. 1997).

27. Davis v. Francis Howell School District, 138 F.3d. 754 (8th Cir. 1998).

28. 29 U.S.C. § 794(a)(1999).

29. 42 U.S.C. § 12132 (1990)

30. Debord, 126 F.3d. at 1105.

31. 34 C.F.R. § 104.3(j)(1). (1980)

32. 42 U.S.C. § 12102(2). (1990)

33. 34 C.F.R § 104.3(J)(2)(ii). (1980)

34. 34 C.F.R § 104.3(J)(2)(ii). (1980)

35. 34 C.F.R § 104.3(B)(1). (1980)

36. 20 U.S.C. §1401(a)(1)(A)(1998 Supp.)

37. 20 U.S.C. §1401(a)(1)(A)(i) through (ii). (1998 Supp.)

38. 20 U.S.C. §1401(a)(16) through (17). (1998 Supp.)

39. Ferguson-Florissant School District - Medication procedure policy:
 

All medications prescribed by a physician will be cleared with the school nurse before being taken while at school.

Annual inservice will be conducted regarding appropriate and approved pharmaceutical dosages with all nurses and nurses aides.
 

It is the nurses responsibility to check each prescribed medication for correct name, dosage, time and method of administration. The nurse must also check that this is a current prescription.
 
 
 

Questioning a drug order:
 

If a drug order is in question the nurse must follow this outlined procedure prior to administering the medication.
 

1. Refer to a reliable drug reference (PDR, Mosbys, etc.).
 

2. Clarify prescription with pharmacy.
 

3. Notify nursing supervisor who will notify assistant superintendent in charge of nursing services.
 

4. Call the prescribing doctor for clarification.
 
 
 

When you may refuse to administer a drug.
 

1. A nurse may refuse to give a medication at school after a reasonable and prudent decision has been made where the dosage prescribed exceeds that which is recommended in the Physicians Desk Reference, Mosby's Nursing Drug Reference, Nursing '96 Drug Handbook, or other approved pharmaceutical manuals.

2. Any drug or substance not currently approved by the FDA (ex: homeopathic medications containing arsenic).
 
 
 

When a nurse refuses to carry out a drug order the following procedure MUST be followed:
 

1. Notify nursing supervisor who will notify assistant superintendent and superintendent.

2. Notify attending physician by phone with follow up in writing.

a. State concern for dosage or particular medication, etc.

b. Make every attempt to work out a suitable solution - ex: change of time of administration, change of dosage, change of medication.

c. Follow up in writing.

3. Meet with parents.

a. State concern for dosage or medication.

b. Offer alternatives - ex: change of time so as not to be given during school hours.

4. Consult with Missouri State Board of Nursing for current procedures re: refusal to follow written physicians orders.

5. Begin research.

a. Collect research articles from professional journals, organizations, etc.

b. Contact other physicians requesting their professional opinion and ask them to review current research.

c. Contact state licensing boards and DESE.

d. Consult with district's legal counsel.

e. Assemble all data for review.

f. Present data to review team organized by the superintendent and assistant superintendent.

g. Decision rendered and implemented.

h. Parents and physician contacted in writing.

i. Alter and update policies and procedures as needed.

40. DeBord, 126 F3d. at 1104.

41. Id.

42. ⁴² Id. at 1105.

43. Id.

44. Id.

45. Id.

46. Id.

47. Id. at 1106.

48. Id. (citations omitted).

49. Id.

50. Id. at 1106.

51. Davis v. Francis Howell School District 138 F.3d. 754 (9th Cir. 1998).

52. Davis, 138 F.3d. at 755.

53. Id. at 755.

54. Francis Howell School District - Medications Procedures policy:
 

It is the right and obligation of the nurse to question medication orders the nurse deems potentially inappropriate and to verify the validity of any medication order. It is also the right of the nurse to refuse to give any medication that he/she feels does not meet the criteria established in Board Policy for giving medications.

55. Id.

56. Id.

57. Id.

58. Id.

59. Id. at 756.

60. Id.

61. Id. at 756- 757.

62. Id. at 757.

63. Id.

64. Id. at 758.

65. Id. at 758.

66. Valarie J. v. Derry Coop. School District., 771 F. Supp. 483, 489 (D.N.H. 1991).

67. DeBord, 126 F3d at 1105, citing, Berlin Brothersvalley (PA) School District, OCR Region III, 353:124 (December 23, 1988). See also, San Ramon Valley (CAL) Unified School District, 18 IDELR 465 (U.S. Dep't of Educ., Off. For Civil Rights 1991)

68. Conn. Gen. Stat. § 10-212a(a) (1997).

69. Irving Indep. School Dist. v. Tatro, 104 S. Ct. 3371

70. Id. at 3379.

71. Nancy Gibbs and Christine Gorman, The Age of Ritalin, Time, November 30, 1998, page 92.

72. Debord, 126 F3d at 1105.

73. Id. at 1105; Davis, 138 F3d at 756.

74. Davis, 138 F3d at 758.

75. Id.

76. Brink at 76-77.

77. Lawrence H. Diller, M.D., Running On Ritalin, pg 329-30.

78. Debord at, 126 F.3d at 1106; Davis at, 138 F.3d at 756.

79. 20 U.S.C. §§1400-1485 (1997)

80. Irving Indep. School Dist. v. Tatro, 104 S. Ct. 3371

81. Id. at 3379.

82. Tokarcik v. Forest Hills School District,665 F.2d 443 (3d Cir. 1981).

83. Tokarcik, 665 F.2d at 458-459.

84. Cedar Rapid Community School District v. Garret F, 106 F.3d 822, 825 (8th cir. 1997), pet. for cert. filed, 65 U.S.L.W. 3768 (U.S. May 8, 1997)(No. 96-1793).

85. Id. at 825.

86. Id.

87. Proposed regulation, 34 C.F.R. § 300.346 (a)(2)(i).

88. Proposed regulation, 34 C.F.R. § 300.346 (c).

89. Proposed regulation, 34 C.F.R. § 300.347 (a)(3).

90. Debord, 126 F. 3d. at 1104; Davis, 138 F. 3d. at 755.

91. DeBord, 126 F.3d at 1104.

92. STEPHEN B. THOMAS, HEALTH RELATED LEGAL ISSUES IN EDUCATION, National Organization on Legal Problems of Eduation, 1987, pg. 34.

93. Id. at 34.

94. Id. at 36

95. Id.

96. Id. at 35 -36.