Confused About Medical Expense Deductions for Special Education Costs? Not Surprising!

For the tax lawyer in a firm best known for representing parents of special needs students, there have been many opportunities to respond to the question whether the costs of providing special education services for a dependent child are deductible as medical expenses, and there have been a surprising number of opportunities to debate the question with recalcitrant tax return preparers.

The problem may stem from a paucity of guidance on the subject, or more likely on the lack of clarity introduced by the applicable Treasury Regulations. The basic rule, of course, appears in Section 213 of the Internal Revenue Code of 1986 (“Code”), which provides for a deduction for unreimbursed expenses paid (over a floor of 10% of Adjusted Gross Income for 2019 and years thereafter) for the “medical care” of the taxpayer or his/her spouse or dependent.¹ Medical care is defined, in pertinent part, as “amounts paid (A) for the diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body, [and] (B) for transportation primarily for and essential to [such] medical care…”²

This does little to answer the ultimate question, so the next step is to look at the Regulations, and specifically at Reg. §1.213-1(e)(1)(v)(a), which purports to define “medical care” in the context of care in a non-hospital institution, as follows:

“Where an individual is in an institution because his condition is such that the availability of medical care (as defined in subdivisions (i) and (ii) of this subparagraph) in such institution is a principal reason for his presence there, and meals and lodging are furnished as a necessary incident to such care, the entire cost of medical care and meals and lodging at the institution, which are furnished while the individual requires continual medical care, shall constitute an expense for medical care. For example, medical care includes the entire cost of institutional care for a person who is mentally ill and unsafe when left alone. While ordinary education is not medical care, the cost of medical care includes the cost of attending a special school for a mentally or physically handicapped individual, if his condition is such that the resources of the institution for alleviating such mental or physical handicap are a principal reason for his presence there. In such a case, the cost of attending such a special school will include the cost of meals and lodging, if supplied, and the cost of ordinary education furnished which is incidental to the special services furnished by the school. Thus, the cost of medical care includes the cost of attending a special school designed to compensate for or overcome a physical handicap, in order to qualify the individual for future normal education or for normal living, such as a school for the teaching of braille or lip reading. Similarly, the cost of care and supervision, or of treatment and training, of a mentally retarded or physically handicapped individual at an institution is within the meaning of the term medical care.” (emphasis added)

On the one hand, the highlighted sentences appear to provide support for the proposition that the cost of tuition, fees, room and board and transportation for attendance at a “special education” school qualify as expenses for medical care. On the other hand, the caveat that “ordinary education is not medical care” and the examples that are provided to illustrate the type of institution that qualifies as a “special school”, i.e., “a school for the teaching of braille or lip reading” have given some taxpayers and their tax return preparers pause. The Regulation goes on to make reference to Code Section 262 and the Regulations thereunder “for disallowance of deduction for personal, living, and family expenses not falling within the definition of medical care”.³ At this point a position of doubt and insecurity may well seem justified.

However, as early as 1978 the Internal Revenue Service (“Service”) cast considerable gloss on the matter in the form of Revenue Ruling 78-340.⁴ This Ruling considered the case of a child with “severe learning disabilities”, including “congenital impairment in the areas of visual memory and visual matching”, whose disabilities had been determined by “competent medical authorities” to be caused by “a neurological disorder”. The Service determined that amounts paid for tuition at a “special school” having a “program designed to educate children with severe learning disabilities so that they can return to a regular school within a few years” qualified as expenses for medical care under Code Section 213. These facts constitute a fairly typical scenario involving attendance at a “special education” school.

The Service has been consistent in its application of the rules developed in Revenue Ruling 78-340. In a series of Private Letter Rulings spanning the years 1978 to 2007⁵ , the Service has determined that expenses of special education constitute deductible expenses in instances in which the fact pattern is similar to that in the Revenue Ruling, i.e., there is a diagnosis of a neurologically based learning disability or other handicap, leading to a recommendation of and attendance at an institution specially equipped to help the student overcome the handicap. In the few instances in which the Service has ruled against the taxpayer, the basis for the adverse ruling was factual. In each case the school program was found to be insufficiently “special” or insufficiently geared to enable the student to cope with a “medical” issue.⁶ Of course, Private Letter Rulings are not precedential, but they do provide an indication of the policies and predilections of the Service.

The Tax Court, on the other hand, has somewhat muddied the waters with a series of decisions in favor of the government in the 1970’s and 1980’s⁷. Review of these decisions reveals that the adverse rulings resulted from reasoning similar to that in the adverse Private Letter Rulings cited above, i.e. a determination that the educational program, even if recommended by a physician or psychotherapist, was not “special” enough, as exemplified in the following selections:

“We have recognized that because of the difficulty of distinguishing personal educational expenses of an emotionally disturbed child from payments for medical care a careful analysis should be made of the evidence not only to determine if the school the child attended is a “special school” but also to determine to what extent the services rendered to the child are educational and to what extent the services are medical care.”⁸

“This Court has rarely allowed a medical expense deduction for the full cost of a private school education. Although the individual attention, small class size, and strict discipline characteristic of good private schools often are beneficial to students suffering from mental or physical defects or illnesses, the cost of a basic education is still primarily a personal expense, and it does not become a medical expense merely because it is prescribed by a physician. If a private school provides no special services beyond the ordinary educations program offered as a part of its regular curriculum, then the cost of attending the school is not deductible, notwithstanding that attendance may help alleviate a student’s mental or physical defect or disease.”⁹

“We have construed the regulation to mean that a school is a special school only if the ordinary education it provides is incidental to medical care.”¹⁰

The facts are preeminent in the analysis, and in an early decision, on more favorable facts, the Tax Court did in fact rule in favor of the taxpayer, in a case involving a learning disability stemming not from neurological causes, but rather from an emotional disturbance.¹¹ The clear conclusion is that if the fact pattern is appropriate, taxpayers and their advisors should not be reluctant to claim a medical deduction for expenses of providing special education to a dependant, including tuition, fees, room and board, transportation and related medical and counseling services.

A more challenging and perhaps more interesting question is whether legal fees expended by parents in their quest to obtain special education services from a city or town can be included in the foregoing compilation of deductible medical expenses. For many years there was no specific answer from the courts or the Service, but an analogy could be made to the Gerstacker decision¹², accepted by the Service in Revenue Ruling 71-281¹³. In that case the 6th Circuit Court of Appeals ruled that legal fees incurred in a guardianship proceeding were deductible as a medical expense as they were required in order to obtain necessary medical care for the ward, specifically commitment to a hospital for treatment of mental illness. By analogy, parents might argue that their legal battle with the municipality is a necessary avenue to obtain special education services, which in turn constitute medical care.

This argument was finally rejected by the Tax Court in 1998 in Lenn v. Commissioner,¹⁴ in which the underlying legal dispute was over reimbursement for special education expenses paid by the parent. The Court distinguished the Gerstacker reasoning because the case against the town was not brought to “legitimate or authorize medical treatment” but was instead brought to determine who would pay for such services. This is a logical and cogent response to the attempt to extend the Gerstacker rationale, but it leaves open the question whether the same argument can be made in the case of destitute parents whose child cannot and will not receive needed services unless the city or town pays for them. This question will have to be left to another day.

1. Code Section 213(a).
2. Code Section 213(d)(1).
3. Reg. §1.213-1(e)(1)(vi).
4. 1978-2 CB 124.
5. See, e.g., PLR 7827020, PLR 7843032, PLR 8033096, PLR 8401024, PLR 8445032, PLR 8447014, PLR 200521003, PLR 200704001, and PLR 200729019.
6. See, e.g., PLR 8303037, and PLR 8616069.
7. See, e.g., Jack W. Reiff, TC Memo 1974-20, John A. Dreifus, TC Memo 1977-83, Alvin J. Sims, TC Memo 1979-499, Harry J. Vankirk, TC Memo 1980-572, Fay v. Commissioner, 76
8. TC 408 (1981), Bruce S. Walton, TC Memo 1982-648, Devora R. Shidler, TC Memo 1971-126, and Donald R. Pfeifer, TC Memo 1978-189.
9. Reiff, supra.
10. Sims, supra.
11. Vankirk, supra.
12. Greisdorf, Lawrence D. 54 TC 1684 (1970).
13. Gerstacker v. Commissioner, 414 F.2d 448 (6th Cir. 1969).
14. 1971-2CB 165.
15. TC Memo 1998-85.