Transcript 82nd Legislative Session New Laws for Public School Districts

Wesley Eby Johnson · Escamilla, Poneck & Cruz, L.L.P.
82nd Legislative Session
• www.legis.state.tx.us
• Search Legislation: 82(R) 2011
• HB or SB and then the bill number provided
• “Enrolled Text”
• www.statutes.legis.state.tx.us
• Code: Ie. Education, Penal, Government, etc
• Chapter (first part of the statute: 25.12 is in Chapter
25)
• Article/Section (2nd part of the statute number)
TRUANCY PREVENTION MEASURES;
REFERRAL AND FILING
REQUIREMENT.
• SB 1489
• Clarifies that truancy laws apply to students 12-17 year old
• Requires a school district to adopt truancy prevention
measures designed to: (1) address student conduct related to
truancy in the school setting; (2) minimize the need for
referrals to juvenile court for conduct described by Section
51.03(b)(2), Family Code; and (3) minimize the filing of
complaints in county, justice, and municipal courts alleging
a violation of Section 25.094.
Referrals or Complaints to Court
Must Now:
• Be accompanied by a statement from the student's school
certifying that:
• 1. the school applied the truancy prevention measures
adopted under Subsection (a) to the student; and
• 2. the truancy prevention measures failed to meaningfully
address the student's school attendance; and
• 3. specify whether the student is eligible for or receives
special education services under Subchapter A (Special
Education Program), Chapter 29 (Educational Programs).
• Population requirement has also been lowered from 2 million
to 1.75 million in counties where truancy complaints are
required.
When in Doubt – Sit them Out!
• HB 2038
• Adds Subchapter D to Ch. 38 of Texas Education Code
• Beginning with 2011-2012 School year
• Natasha’s Law
• Concussion Oversight Team
• Return-to-Play Protocol based on peer reviewed
scientific evidence
• Following force or impact believed to have caused a
concussion
Concussion Oversight Team
• At least one physician
• And one or more of the
following (to the
greatest extent
practicable):
– Athletic Trainer
– Advanced Practice
Nurse
– Neuropsychologist
– Physician Assistant
• Athletic trainer if one
employed by the
school
To the Greatest Extent Practicable
Taking into Consideration:
• Population of
metropolitan
statistical area in
which the school
district is located
• District enrollment
• Availability and
accessibility to
licensed health care
professionals in the
district area
Training Regarding Concussions
Required
• Evaluation
• Treatment
• Oversight
• At the time of Appointment
• Required Concussion form for each student
participant in an interscholastic athletic activity
www.uiltexas.org
• UIL Concussion Management Protocol
Implementation Guide
• Frequently Asked Questions
• Free Training Courses
Davis v. Carter, 555 F.3d 979 (11th
Cir. 2009)
• Student participated
in a voluntarily
football workout
• “intense and
unreasonable”
workout
• No custody or
control issues
• No discipline issues
Goss v. Alloway Township School, 2011
U.S. Dist. LEXIS 11420 (Dist. Ct. N. J.
2011)
• Student got a
concussion on the
school playground
• Unassisted and
unsupervised
• Section 1983 claim
against the District
• All claims denied
• Different Facts matter
Bullying
• HB 1942 amends TEC 21.451, 25.0342, 37.001(b),
37.083 and adds TEC 37.0832
• Begins with the 2012-13 school year
• Req’d staff development training may include
prevention, identification, response to and reports of
incidents of bullying
• Transfer of victims of bullying now is “transfer of
students who are victims of or have engaged in
bullying”
• Bullies can be transferred to either another
classroom or, in consultation with parent, another
campus
Defines “bullying”:
• Engaging in written or verbal expression, expression
through electronic means, or physical conduct that occurs
on school property, at a school-sponsored or schoolrelated activity, or in a vehicle operated by the district
and that:
• (1) Has the effect or will have the effect of physically
harming a student, damaging a student’s property or
placing a student in reasonable fear of harm to the
student ‘s person or of damage to the student’s property
or
• (2) Is sufficiently severe, persistent, and pervasive
enough that the action or threat creates an intimidating,
threatening, or abusive educational environment for a
student.
Conduct described is “bullying” if:
• Exploits an imbalance of power between the student
perpetrator and the student victim through written
or verbal expression or physical conduct; and
• Interferes with a student’s education or substantially
disrupts the operation of a school
• Policies and any necessary procedures must be
developed and included annually in student and
employee handbooks and district improvement plan.
More regarding policy and procedure
regarding bullying:
• Procedures for reporting bullying must be posted on
website
• Policy must be devped that prohibits bullying and
retaliation against good faith reporters of bullying
• Sets out counseling options for victims, witnesses,
and bullies
• Prohibits students who reasonably defend selves
from bullies from being disciplined (after
investigation determines self-defense involved)
• Requires compliance with special education laws
when disciplining students with disabilities for
bullying
Procedures must be developed
for:
• Obtaining assistance and intervention in response to
bullying
• Providing notice of bullying incident to both parent
and/or guardian of victim and bully w/in reasonable
time after incident
• Reporting and investigating an alleged incident of
bullying and determining whether incident occurred.
Suicide Prevention
• HB 1336 adds Subchapter O-1 to Ch. 161 of the
Health and Safety Code
• Early Mental Health Intervention & Prevention of
Youth Suicide
• Req’d training for counselors, teachers, nurses,
administrators and other staff as well as law
enforcement officers and social workers who
regularly interact with students
• New policy language regarding early mental health
intervention
Policy:
• Establishes procedures for providing notice within a
reasonable time of identification of at-risk student
• Designates liaison officer for purposes of identifying
students in need of early intervention or prevention
• Sets out counseling alternatives and must prohibit
use of medical screening without prior consent
• Must be included in student handbook and district
improvement plan
• Donations accepted but no anonymous donations
• Effective 2012-13
Sanford v. Stiles, 2004 U.S. Dist. LEXIS
22948 (E.D. Pa. 2004)
• Another student told counselor of the son's
mention of suicide
• Counselor spoke with him and informed the
mother.
• Son later asked who had contacted her about his
state of mind, the counselor refused to provide the
information and took no further action.
• The son took his life later that day.
• The mother alleged that by holding herself out as a
resource and then improperly evaluating the son's
psychological state, the counselor increased the
danger of his loss of life in violation of the 14th
Amendment
More re: Stiles….
• The court found that there was a relationship between
the state and the son
• State Created Danger: Plaintiff must establish that:
• (1) the harm ultimately caused was foreseeable and
direct, (fact ??)
• (2) the conduct of the state official was "so illconceived or malicious that it shocks the conscience"
or at least rose to the level of deliberate indifference
• (3) there existed some relationship between the state
and the plaintiff, (Yes) and
• (4) the state actor used her authority to create an
opportunity that would not have otherwise existed
for harm to come to plaintiff.
Hasenfus v. LaJeunesse, 175 F.3d 68
(1st Cir. 1999)
• Attempted suicide at school after being
disciplined in gym class
• Left with permanent impairments
• Allegations: failure to take preventive measures in
light of known concerns (or should have known)
• “inaction rarely gives rise to liability unless some
special duty of care exists”
• Schools ≠ Mental facilities or Prisons
• In loco parentis
Duty to Protect?
• “Perhaps in narrow circumstances there might be a
"specific" duty”
• If a student suffered a heart attack in the classroom,
and the teacher knew of her peril, could the teacher
merely leave her there to die without summoning
help?
• If a six-year old child fell down an elevator shaft,
could the school principal ignore the matter?
• Court requires “pungent” facts
More from the Court….
• Attempted suicide by school-age children is no slight
matter; but it has no single cause and no infallible solution.
• Different schools will react differently, depending upon
resources, available information, and the judgment of
school and public health authorities, who may fear making
a bad situation worse.
• Absent a showing that the school affirmatively caused a
suicide, the primary responsibility for safeguarding
children from this danger, as from most others, is that of
their parents; and even they, with direct control and
intimate knowledge, are often helpless.
• Possibly there was school negligence here--one would
need more information to make a judgment--but
negligence is not a due process violation.
Severe Food Allergies
• HB 742 adds TEC 25.0022
• Defines “severe food allergy” – a dangerous or lifethreatening reaction of the human body to a foodborne allergen introduced by inhalation, ingestion, or
skin contact that requires immediate medical
attention
• Districts required to request (via form or otherwise)
that parent disclose whether child has food allergy or
severe food allergy and specify what it is and tell
whether district needs to know so that district can
take nec’y precautions
What else?
• FERPA applies to information
• Information to be maintained in child’s student
records but not in health record maintain by district
unless physician provides documentation
• Registered nurse may make “appropriate notes” in
health record regarding possible food allergy
including a note that parent has notified district
regarding possible food allergy
• Applies beginning 2011-12 school year
Anaphylaxis
• SB 27 adds TEC 38.0151
• Policies for care of certain students at risk for
anaphylaxis (no later than 8/1/12)
• Students with diagnosed food allergies
• Based on guidelines devped by Commissioner of
State Health Services in consultation w/ ad hoc
committee no later than 5/1/12
• If district already has a policy, must review and
revise as necessary to comply with guidelines
Anaphylaxis Guidelines
• Cannot require district to purchase prescription
medicine or any other expenditure than would result
in a negative fiscal impact
• Cannot require the administration of anaphylaxis
medicine by district personnel unless it is prescribed
to that student
• No waiver of liability or immunity and no creation of
liability or creation of cause of action against gvmntal
entity or officers or employees
• Guidelines must be posted on website
Students At Risk for Anaphylaxis
• Ad Hoc committee = minimum of 12 members
• 1 principal and 1 teacher / employed on campus in
which student with a diagnosed food allergy at risk
for anaphylaxis are enrolled
• 2 parents of students at risk…
• 1 member of a public school board
• 1 superintendent
From the Dept of State Health
Services:
• Commissioner is selected committee members now
• Committee finalized by 12/1/11
• Meeting 2/3/12
• Framework of guidelines developed
• Final guidelines published on 5/1/12
• Friday Beat - Updates
Already Law
Asthma or Anaphylaxis Medication:
Texas Education Code 38.015
• Students entitled to Possess and SelfAdminister
• School Property or At School-Related Event
• Conditioned upon:
• Prescribed for student as indicated on
prescription label
• A demonstration of skill level by student
• Self- administration in compliance with
written instructions from physician or other
health care provider
• Parental permission
• Doctor permission
Taylor v. Altoona Area Sch. Dist., 513 F.
Supp. 2d 540 (W.D. Pa. 2007)
• Service Plan outlining Asthmatic
Reaction Procedure (ARP):
• Given medication through inhaler
prior to exercise & when symptoms
present
• Be allowed to use nebulizer during
school with assistance of school
nurse
• Nurse (& appropriate medical
provider) must be notified
promptly of any related incidents,
and actions taken in response
• Resuscitative efforts be
administered if needed
Numerous claims against District
after student’s death:
• Nurse named individually
• Deliberate indifference in medical
emergency situations
• Affirmative actions v. omissions
• Section 1983 Claim - Official acting under
color of state law caused deprivation of
federal right
• Interesting argument by individual
defendants – no viable action against entity
school district = no viable action against the
individuals
Claims against Nurse:
• Acts were almost all omissions
• Unaware of deteriorating condition
• Deliberate indifference requires
knowledge with which to draw inference
of substantial risk of serious harm
• Failure to Train Theory explored
• Only specific allegations regarding
refusal to allow student to contact
parent or seek medical treatment
• PA – no self-administration law
Closer to Home…Garcia v. Northside
ISD, 2007 US Dist. LEXIS 103 (W.D.
San Antonio 2007)
• Daily Treatment Plan
• Student must carry
inhaler at all times
• Student disabled?
• Case-by-case basis
• Negligence claim against
nurse survived summary
judgment
What Went Wrong?
• PE Uniform didn’t have pockets but plan
stated that student was to carry inhaler at
all times
• PE Instructor didn’t know about plan
• Inhaler was in locker inside a locked area
Forms Already Required
• Self Administration
of Asthma
Medication Form
• Self-Administration
Parental Assessment
and Consent
• School Asthma
Action Plan
• Emergency Plan
Parent Contributions to Individual
Health Plans:
• Medication, supplies,
equipment, doctor’s
instructions
• Encourage parents to
participate in training
• Provide information
and insight into the
health plan
School Nurse Contribution:
• Survey emergency cards and health
card s and develop a list of students
who may need health plan
• Obtaining health data can be used
with form and a letter
• Develop and implement plan
• Ask questions throughout year to
ensure procedures are followed
What About Peanut Butter Bans?
• “Life threatening” allergies
• Mystic Valley Regional Charter, 40 IDELR 275
(OCR 2004)
• Look at totality of facts
• Age of student & peers
• What does day look like – spend entire day in
one room?
• Don’t look at inconvenience to others to
determine reasonableness
• How would modification affect others’
education?
Timing is Also Important
• Saluda Sch. Dist. One, 47 IDELR 22 (OCR 2006)
(another life threatening peanut butter allergy
case)
• Informed in spring of impending arrival – no plan
and no training even after plan devised
• Don’t wait until beginning of school year when
health issues are serious
• Beginning of year is BUSY
• Plan can be developed in advance to give proper
time for training
Children in the Conservatorship of
the State
• HB 826 adds TEC 33.904
• No later than 12/1/11, each district must appoint a
district employee to serve as liaison officer to
facilitate the enrollment into district or transfer to a
public school of a child in the district who is a
conservator of the state
• Effective 9/1/11
Bill Analysis:
• “When a child is placed in the conservatorship of the
state, the child may be displaced from his or her school,
depending on the location of available foster care. This
change can have a detrimental effect on the child's
development, particularly given the circumstances that
lead to state conservatorship. Currently, there is no
designated employee in a school district who monitors
the transfer or enrollment of such children within public
schools. H.B. 826 seeks to ease the negative effects of
school transfers on a child in the conservatorship of the
state by appointing at least one school district employee
as a liaison officer to facilitate the enrollment in or
transfer to a public school of such a child.”
Sexual Abuse Policy
• SB 471 amends TEC 11.252 and 38.0041 and Tex.
Human Resources Code 42.002. Adds 42.04261 and
42.0428 to Tex. Human Resources Code
• District Improvement Plan must include policy
addressing sexual abuse and other maltreatment of
children
• “And other maltreatment” – “abuse” and “neglect” as
defined by Texas Family Code
More Policy Requirements
• Policy must address methods for increasing staff,
student and parent awareness regarding sexual
abuse and other maltreatment of children.
• Training must now include prevention and
recognition techniques
• Must be a part of new employee orientation and may
be provided to district staff members annually (can
be offered as part of required annual training under
TEC 21.451)
• Daycare center employees also covered
Required Training Components
• At risk factors
• Likely warning signs
• Internal procedures for seeking assistance
• Techniques for reducing risk
• Community resources
• District must maintain records that include name of
each participating staff member
Interesting Element of Law
• District employee cannot be subject to any
disciplinary proceeding (TEC 22.0512(b)) resulting
from an action taken in compliance with this section.
• Requirements of section are considered to involve
ministerial acts for purposes of immunity from
liability under TEC 22.0511
• No limitation of immunity from liability under TEC
22.0511
• Effective 2011-12
HB 359 Also Relates to Special
Education Restraint Laws
• Previously, restraint law not applicable to peace
officers….now they do apply if the peace officer is
employed or commissioned by the school district or
provides, as a schl resource officer, a regular police
presence on a schl campus under a MOU between the
district and local law enforcement
• Reporting requirements to TEA if restraint occurs during
law enforcement duties
• Law Enforcement Duties = activities of a peace officer
relating to the investigation and enforcement of state
criminal laws and other duties authorized by Code of
Criminal Procedure
• Commissioner to adopt rules
HB 968
• Former “Serious or Persistent Misbehavior while in a
DAEP” now obsolete
• Permissive expulsion for conduct while in a DAEP
starting 2012-13 school year and MOU with JJAEP for
that year must include this information
• Student engages in “documented serious
misbehavior while on the program campus despite
documented behavioral interventions”
• “Serious misbehavior” will be defined
Serious Misbehavior
• Deliberate violent behavior that poses a direct threat
to the health and safety of others;
• Extortion, meaning the gaining of money or other
property by force or threat;
• Conduct that constitutes coercion, as defined by
Penal Code; or
• Conduct that constitutes: public lewdness, indecent
exposure, criminal mischief, personal hazing, or
harassment of a student or district employee (all
terms defined by Penal Code)
Section 504
What’s The Same.....What’s
Different….And What You
Need to Know
By:
Wesley E. Johnson, J.D.
Escamilla, Poneck & Cruz, LLP
Section 504 of the Rehabilitation Act of
1973 (PL 93-112, September 26, 1973)
• Originally, Section 504 of the Rehabilitation Act was intended to
eliminate discrimination against people with disabilities in
programs or activities receiving Federal funding.
• Precursor to the more well-known Americans with Disabilities
Act that was passed in 1990 that applies to more
• Schools = recipients of federal funds & cannot discriminate
against those otherwise qualified to attend but inhibited from
participating to same extent as nondisabled b/c of disability
• Otherwise qualified to attend = age, residency requirements
Bryan County, Atlanta GA,
53 IDELR 131 (OCR 2009)
• Parents of a 1st grader notified school of child’s severe
peanut allergies & requested a §504 evaluation
• District developed a health plan instead
• Parent complained
• District explained to OCR that it had a plan in place to keep
student safe & saw no need for evaluation
• FOLLOW PROCEDURES!!!!!!
OCR Determined That the District
Violated §504:
• First Answer the Question – Will you evaluate? Yes
or No
• NO – Triggers procedural safeguards
• Yes – Evaluation has required components that must
each be met
• Here – neither was provided….Section 504 Limbo
• Do not automatically assume that a health plan
already in place will suffice – even though it might
Duty to Evaluate for §504 Eligibility
Exists Regardless of Whether the
Parent Requests an Evaluation
• According to OCR: § 504
requires districts to evaluate
students who are suspected of
needing special education or
related services because of a
disability.
• Refer a student for a § 504
evaluation if you suspect a
disability.
What Could Trigger an Internal Duty
to Refer Student for Evaluation?
• Student has an impairment or chronic medical problem of
which you are aware
• Academic or behavioral problems
• Student transfers from another district w/ a § 504 Plan
• Student previously found ineligible b/c of mitigating measures
• Student evaluated for special education (IDEA) and found
ineligible
• Student exits special education program
• Student receive meds on campus
Response to Intervention….
• There is no pre-screening mandate for §504
• Not required to conduct RTI before Section 504 Evaluation
• Other hand…. if staff has a concern re: suspected learning
disabilities…RTI
• RTI can lead to §504 evaluation….if a disability is suspected
• If no disability suspected and the general education
interventions work…no req’mnt to refer
• Mitigating measure?
What if the Student Isn’t Making
Progress with RTI?
• Move forward with a §504 Evaluation if the District has a
reason to believe the student has a disability!
• Any reason to believe…triggers independent obligation
• Accommodations can be provided w/o official Section 504
eligibility determination
• Behavior Concerns
• Concerns that Come from School Nurse
• Incidents that Might Occur at School
No Obligation to Qualify a
Student Who Has No Disability
• Even if student is not making progress with RTI – he or she
must have a disability to qualify for Section 504
• If a student does not qualify for special education but still
struggles – consider Section 504 – but not automatic
• Why the student did not qualify for special education
services is important
• Impairment must substantially limit a major life activity
What if nothing triggers a concern
and the parents never request an
evaluation?
• Student is diagnosed with disability but performs average
in school
• No behavior concerns
• No unusual medicines taken at school that would trigger a
concern
• Parents never request a §504 evaluation
• Is District liable?
• NO
Child Find Obligation Met When:
• District notified all
potentially eligible
students/parents
• District did not
suspect a disability
• But what if parent
refuses to consent to
a §504 evaluation?
• DOCUMENT!
What About Home Schooled
Students?
• If Child Find Obligations are met then parent’s are placed on
notice regarding District’s obligations
• No further obligations
• Obligated to ensure that student can participate equally in
educational program
• Consider state consideration of home-schooled students…
• What about homeschooled students taking standardized
tests on district campus?
District is Not Required to Insist that a
Student Be Evaluated Absent Parent
Consent
• Consistent with IDEA
• May use due process BUT
Why?
• If a general education
student is suspected of
having a disability for which
he needs services….and
parents don’t consent to an
evaluation…
Options in lieu of
§504 evaluation:
Refer for possible
IDEA eligibility
Provide regular
education
interventions
Section 504 Evaluation
Requirements
• Be based on information from a variety of sources,
• -- Document and consider all available pertinent information
related to the suspected physical or mental impairment,
which may be substantially limiting major life activity.
• -- Be conducted by a group of knowledgeable people
• -- Use appropriate materials, tests or evaluation procedures
Variety of Sources…Basic Compliance
With the Law!
• Teacher(s),
• Other school staff members,
• A parent/legal guardian,
• Physician,
• Nurse,
• Other professionals or persons in the community
• This is not new
Document and Consider All
Pertinent Information…
• Records,
• Assessment data
• Medical reports
• What else?
• Health Forms
• Special Education Documents
• Letters from Physicians
Required in conducting the
evaluation are Persons Who Are
Knowledgeable About:
• The child,
• The suspected disabling condition,
• Evaluative procedures,
• The meaning of evaluative data, and
• Accommodation/placement options
Tests and Materials Used to
Evaluate:
• Tailored to assess specific areas of educational need
that are not racially or culturally discriminatory and
are validated for the specific purpose for which they
are used.
• These requirements are so important to OCR!
• Process and procedure is vital!
• You want your documentation to tell its own story
about the decision-making!
What Does An Eligible Student Then
Have A Right to Receive?
• Protection against discrimination +
• Free Appropriate Public Education
• “Provision of regular or special education and related aids
and services that are designed to meet individual
educational needs of students with disabilities as
adequately as the needs of students without disabilities are
met”
Two Components to What is Offered
an Eligible Student:
• (1) Protection from discrimination
• (2) Accommodations or other services that might be
needed that are necessary to provide an equal opportunity
for the student to participate in the general curriculum =
FAPE
• Creation of a fair academic setting
• Comparable opportunities as those provided to
nondisabled peers
• Not supposed to provide advantages
Evaluation / Eligibility:
•
•
•
•
•
•
Otherwise Qualified to attend school in the District (comes
from state law requirements on enrollment eligibility)
“Otherwise qualified student” must be determined, as a
result of an evaluation, to have a:
Physical or mental impairment
That substantially limits one or more major life activity;
Has a record of such an impairment; or
Is regarded as having such an impairment.
Regarded As Disabled or Having a
Record Of an Impairment
• OCR has specifically stated….students not
entitled to reasonable accommodations or
modifications to polices, practices, and
procedures simply because they have a record
of a disability or are regarded as having an
impairment.
• NO FAPE for students who fall into this
category….
• Still eligible for Section 504 protection against
discrimination
• Still Eligible for Section 504!
ADA Amendment Act of 2008
passed in September
became effective January 1, 2009.
• Broad construction
• Significantly restricts -- Materially restricts
• Expanded definition of “major life
activities”
• Now are prohibited from considering the
mitigating effects of mitigating measures
(except eyeglasses and contacts)
• Consider whether major life activity is
affected when the episodic condition is
active
• Will see more referrals & more students
qualifying for protection
“Major Life Activities” –
• Seeing
• Hearing
• Speaking
• Walking
• Breathing
• Performing Manual Tasks
• Learning
• Caring for Oneself
• Working
ADAA Adds these to the Statutory List of
Major Life Activities:
• Bending
• Lifting
• Standing
• Eating
• Sleeping
• Reading
• Concentrating
• Thinking
• Communicating
• Operation of major bodily functions…
Operation of major bodily functions:
• Including but not limited to…
– Functions of the immune system
– Normal cell growth
– Digestive, Bowel, Bladder
– Neurological, Brain
– Respiratory, Circulatory, Endocrine, and
Reproductive functions
ADA & Section 504 are
Companion Statutes
• Former definition of term "substantial limitation"
• “Significant restriction” as to the condition, manner
or duration under which an individual can perform a
particular major life activity
• “as compared to the average person in the general
population.”
• Now = "materially restricts"
No “substantial limitation” Test –
• Consider the Following:
• Nature and Severity of the Impairment
• Duration or Expected Duration of the Impairment,
AND
• Permanent, long-term impact or expected impact of
the impairment
• Decision must be made on a case by case basis!!
What Does This Mean for Eligibility?
• Students with more common impairments will qualify
• BUT….having an impairment does not = automatically
qualifying for §504 eligibility
• Minor or moderate limitations are not “substantially limiting”
• Medical conditions that could substantially limit major life
activities: HIV, Crohn’s disease, asthma, allerigeis, diabetes,
ADD/ADHD, hepatitis, mononucelosis
What If “Learning” is not Substantially
Limited by the Impairment?
• Look to see if any major life activity is
substantially limited….not just learning
• North Royalton City Schl District, 52 IDELR 203
(OCR 2009)
• Student w/ anxiety issues and severe nut allergy
had a health plan and doing well academically
• Found ineligible for §504
• “Nothing in Section 504, the ADA or ADAAA
limits eligibility to those who suffer
academically”
Does a Doctor’s Diagnosis Automatically
Result in a Student Being Eligible for
Section 504?
• No.
• The Evaluation Team must draw upon information
from a variety of sources
• Includes Doctor’s diagnosis - even one from out of
the country
• Teacher reports, tests, medical diagnosis, physical
condition, social and cultural background, adaptive
behavior, etc.
Additional Testing May Be
Warranted
• District is not required • Should not deny
eligibility solely b/c
to pay for medical
parent doesn’t provide
evaluation
doctor’s diagnosis
• Cannot pay for with
• Team should also not
federal funds
make the diagnosis
• Can request or gather
• Conduct an evaluation
additional
targeted at the
information if the E.
particular problem
Team needs more
information
• Rare – pay for medical
evaluation
Extraordinary Circumstances:
• OCR's investigations normally limited to ensuring
that the school division has complied with the
process requirements of Section 504 and Title II
relating to educational setting, evaluation and
placement, and procedural safeguards.
• In situations that may be life threatening – OCR
might dig deeper and consider your actual eligibility
decision
• If you are considering rejecting eligibility b/c
medical info. that team believes is nec’y is
unavailable and the issue is life threatening…think
again….
ADA Amendments (ADAA) Made Other
Changes to ADA:
• Mitigating Measures not to be considered;
• Episodic conditions or conditions in remission still disabling if
disabling when active;
• "Regarded as disabled" are not entitled to reasonable
accommodations – protection from discrimination;
• Conditions of short duration not a disability but no definition;
• Now defined – Minor and Transitory Impairments = those
with actual or expected duration of 6 months or less.
No Longer Consider Mitigating Measures
When Determining Section 504
Eligibility
• New Rule: Do not consider
mitigating measures when
making Section 504
eligibility decisions
• Student taking medicine
• Diabetic Students
• Students with Asthma
• Students with Severe
Allergies
We Now Consider the Ameliorative
Effects of Mitigating Measures
The determination of whether an impairment
substantially limits a major life activity under
ADAA:
• Shall be made without consideration of ameliorative
effects of mitigating measures.
• One Exception Built into the Law…
• Ameliorative effects of ordinary eyeglasses or contact
lenses can still be considered
• Definition– Lenses that are intended to fully correct visual
acuity or eliminate refractive error
Examples of Mitigating Measures
Listed in ADAA
• Medications or Medical supplies
• Equipment or appliances
• Prosthetics including limbs & devices
• Hearing aids, cochlear implants or other implantable
devices
• Mobility Devices
• Oxygen therapy equipment & supplies
• Assistive technology
• Reasonable accommodations already provided
• Auxiliary aids or services*
• Learned behavior or adaptive neurological modifications
Definition of ‘Auxiliary Aids and Services’:
• Qualified interpreters;
• Qualified readers, taped texts;
• Other effective methods of making
aurally or visually delivered materials
available to individuals w/hearing or
visual impairments;
• Acquisition or modification of
equipment or devices;
• Other similar services & actions.
Health Plans = Mitigating
Measure
• North Royalton (OH) City Sch. Dist., 109 LRP
32541(OCR 2009)
• Parent notified District regarding 1st grader with
anxiety disorder and severe allergies
• District evaluated – found ineligible
• Doing well academically in light of health plan
• Notify parents of students with individual health
plans of their right to request to an evaluation
under Section 504 if they believe their child has an
impairment that substantially limits one or more
major life activities.
Recommended….
• Notify parents of students with individual
health plans of their right to request to an
evaluation under Section 504 if they believe
their child has an impairment that
substantially limits one or more major life
activities.
• Take the initiative!
• Review cases of students with health care
plans and initiate the 504 evaluation process
if warranted.
• Consider 504 eligibility status during the
next naturally occurring review of his IHP
Does Every Student Taking
Medication Qualify For Services?
• Not necessarily
• Nursing staff will be important referral source here
when parents do not request evaluation
• There is no brightline rule – case by case basis
• All the relevant facts apply to a situation
Do you need to include mitigating
measures to the procedural safeguards?
• Not necessarily
• OCR - any notice must be detailed enough to allow
parents to meaningfully evaluate whether they wish
to consent to the proposed action, refuse to act, or
request due process.
• But! Do Not Forget to notify parents of students
who have not qualified in the past because of
mitigating measures.
• These students should be either (1) reevaluated
or (2) parents should be invited to request
evaluation
Provision of FAPE
• Nondiscrimination + Procedures
• “Reasonableness” from ADA not present
• Accommodations designed to meet the needs of
individuals with disabilities as adequately as needs
to individuals without disabilities met
• Regular or special education services implemented
by any appropriate means
• Appropriate plan does not have to grant every wish
“Are Section 504 Accommodations Necessary
for Student’s Educational Needs to Be Met as
Adequately as Non-Disabled Peers?”
• Episodic situations may only need
accommodations when active
• Mitigating Measures already used successfully
• This student might need more detailed Section
504 plan later --
• Health plan can ultimately be the Section 504
plan
Waive High School Requirements
Through a Section 504
Committee?
• NO
• Intent is to assist the student with an impairment
that substantially limits….receive an equal
education/opportunity
• Not a waiver plan
• Offer to review course schedules to determine
what accommodations might be necessary for a
particular course that is difficult because of the
disability?
What About Impairments That Are
Episodic or in Remission?
• Episodic or in remission still
disabling if disabling when active
• Previously, many claims of disability
were rejected in cases where the
problem only occurred sporadically:
• Epilepsy
• Lupus
• Allergies
Recommendations for Section 504
Students Whose Mitigating
Measures/Episodic Impairments
Make Accommodation Plans Seem
Obsolete…
• Communication between parent/school
• Monitoring for changes in academics/behavior
• Depending on situation – plan for what-If
• Not the same as playing psychic – get information and use it
to plan ahead to prepare for seizure, episode, etc.
Re-evaluations
• Looks like evaluation
• No express obligation for parent consent
• At least 1 time every 3 years
• Upon change of placement (SEE DISCIPLINE SECTION)
• School transfer
• Change in behavior or grades
• Review based upon improvement
What About Dyslexia?
• Texas Dyslexia Guidelines published in 2007 –
revised in 2010
• Refer to major life activities prior to ADAA
• Focus on “learning” being affected
• “Reading” now on the list of major life activities
• Dyslexia defined….difficulty in learning to read, write
or spell….
• Still must determine eligibility!
Section 504’s Nondiscrimination
Protections May Apply:
• Record of an
• No transitory and
impairment that
minor impairments
substantially limits….
under these
• Regarded as having an categories (6
months or less)
impairment that
substantially limits…
• Former special
education student fits
into this category even if
FAPE is not warranted!
If the Student Was Evaluated for
Special Education Services and Did
Not Qualify…
• Offer the Section 504 Procedural Safeguards to the Parent with
the IDEA Notice
• Referral for Section 504 is most likely appropriate since
student has been suspected (or already identified) as having a
disability
• Evaluation for Section 504 – no automatic placements
• Impairment must still substantially limit…
Berlin (NH) Public Schools,54
IDELR 205(OCR 2009),
• Started b/c the parent did not think the teacher was
implementing the accommodations
• Grievance process for anything related to Section 504 is
separate from the Due Process Procedures
• Know where and to who to direct a parent who has a
complaint
Your Due Process Procedure is
Also Important!
• In re: Investigation of
Florida Districts' Section
504 Procedural Safeguards,
109 LRP 31113(OCR 2009)
• 64 Districts in Florida were
under investigation
• Confusion regarding parent
requests for Section 504 due
process
• Process is not as
complicated as IDEA’s
The End