Exploring the Challenging Issues in Child Find, Eligibility, and Placement, Utah 2014

Transcription

1 EXPLORING THE CHALLENGING ISSUES IN CHILD FIND, ELIGIBILITY & PLACEMENT Presented by David M. Richards Pond Springs Rd., Ste 300 Austin, Texas , 2014 All Rights Reserved 1 A note about these materials.! The following slides are meant as brief summaries of what are sometimes very extensive rules and duties.! The slides do not address all of the legal requirements under either law, but are meant to highlight differences in approach. 2! Neither the slides nor the presentation are legal advice. Consult a licensed attorney for questions about a specific set of facts and the impact of state law. A little preview.! A comparison contrast of 504 & IDEA to set the stage! Child find and eligibility issues under both laws, focusing on the issues arising from RtI, health plans, academic success, and behavior 3! Placement issues, focusing on the use of data to determine appropriate placement, including issues of the role of doctors and medical data, students with IEPs demanding services from 504, and concerns in homebound and residential placements.! Neither the slides nor the presentation are legal advice. 1

2 SECTION 504 VS. IDEA A COMPARISON & CONTRAST 4 What was Congress thinking? 504 IDEA 5 Not focused specifically on public schools, but on disability discrimination by recipients of federal funds. Focused on public schools, concerned with two problems: exclusion & inappropriate services/funds for disabled students. So how would you distinguish the two? 504 IDEA A civil rights law. An entitlement law. 6 2

3 Why does that distinction matter? 504 IDEA compares the student at issue with nondisabled peers, seeking equal opportunity to participate and benefit. IDEA isn t concerned about what others get, focuses on educational benefit for this child. Why does that distinction matter? 504 IDEA NO funding for civil rights statutes. NOT ENOUGH funding for entitlement statutes. 8 What does Congress think about current levels of eligible folks? 504 IDEA ADAAA of 2008: Not enough folks are eligible, construe eligibility language more broadly. IDEA 2004: Too many kids are eligible (giving fuel to RtI). 9 3

4 How is eligibility determined? 504 IDEA 10 Student must be both qualified & have a physical or mental impairment that substantially limits one or more major life activities. Student must be both disabled and in need of special education and related services. Can an impairment qualify under 504 but not IDEA?! Absolutely. It can happen in a couple of ways: The impairment was not sufficiently severe or lacked the necessary impact under IDEA, but was substantially limiting under Section The student did not require special education (specially designed instruction) as a result of the impairment. Special education is defined as specially designed instruction (b)(3) 12! Specially designed instruction means adapting, as appropriate to the needs of an eligible child under this part, the content, methodology, or delivery of instruction! (i) To address the unique needs of the child that result from the child s disability; and! (ii) To ensure access of the child to the general curriculum, so that the child can meet the educational standards within the jurisdiction of the public agency that apply to all children. 4

5 Update specially designed instruction? 71 Fed Reg. No. 156, p (Aug. 4, 2006). 13! One commenter requested modifying the definition of special education to distinguish special education from other forms of education, such as remedial programming, flexible grouping, and alternative education programming.. [which] have expanded in the general curriculum in regular classrooms and the expansion of such instruction will only be encouraged with the implementation of early intervening services under the Act. Update specially designed instruction? 71 Fed Reg. No. 156, p (Aug. 4, 2006).! Discussion: We believe the definition of special education is clear and consistent with the definition in section 602(29) of the Act. We do not believe it is necessary to change the definition to distinguish special education from the other forms of education mentioned by the commenter. Changes: None 14 What types of evaluation data are required? 504 IDEA 15 Common sources are grades, test scores, disciplinary referrals, parent input, and other data from a variety of sources More focused on assessment data and instruments, but utilizes cumulative folder data as well 5

6 How are mitigating measures considered during evaluation? Positive effects of mitigating measures (like RtI, meds) must be screened out when determining whether student is substantially limited. IDEA If mitigating measures like RtI adequately address the student s needs, he is not disabled OR does not require special education. Who makes the decisions? 504 A group of people knowledgeable about the child, the meaning of the evaluation data & placement options IDEA IEP Team, with members to include the parent, and a host of others designated by regulation 17 What do eligible students get? 504 IDEA 18 Nondiscrimination protection, a few procedural safeguards + some eligible students get the Section 504 FAPE. Special education & related services, together with a host of procedural safeguards & 504 s nondiscrimination protection 6

7 Do all eligible students get services? 504 IDEA 19 No. Current law recognizes students who are technically eligible: that is, students who are eligible, but do not need services from the school at this time. Yes. By definition, the student must be in need of special education services in order to be eligible. What types of services are possible? 504 IDEA Accommodations + related services + adaptations to school policy/practice/ procedure Specially designed instruction + intensive related services + accommodations + supplementary aids/ services (potentially in special settings) 20 Are there differences in FAPE? Yep. 504 IDEA The Section 504 FAPE requires the school to meet the educational needs of the student with disability as adequately as it meets the needs of his nondisabled peers. The IDEA FAPE is a nearentitlement to educational benefit that will vary depending on the needs and abilities of the individual child. 21 7

8 Does LRE apply? Yes. 504 IDEA 22 Typically very easy to meet the LRE requirement as the student s educational needs will likely be addressed through services and accommodations made to regular classroom. More difficult, as the district must have available a continuum of educational placements, and consider supplementary aids and services prior to a more restrictive placement. Any differences in procedural safeguards? Yep. 504 IDEA 23 Notice, opportunity to examine relevant records, an impartial hearing, and a review procedure pages of singlespaced regulations in subpart E, together with a few other regs. Does manifestation determination apply? Yep. 504 MDR is based in nondiscrimination analysis and federal caselaw. IDEA MDR is part of IDEA statute since

9 How do IDEA & 504 fit together? All students in LEA s jurisdiction Students with physical or mental impairments Section 504 (ADA) IDEA 25 IDEA Referral & RtI 26 Why do we evaluate?! Because IDEA says each state must have in place policies and procedures to ensure that (i) All children with disabilities residing in the State who are in need of special education and related services, are identified, located, and evaluated (a) 27 9

10 Why do we evaluate? (c)(2)(i-ii).! To determine whether this is a student with a disability under IDEA Does the student have an IDEA disability + because of the disability, does the student need special education and related services? 28! AND, once determined IDEA-eligible, to identify the specially designed instruction and related services required for the student to receive FAPE. What triggers the duty to evaluate?! Arapahoe 5, Cherry Creek School District, 113 LRP 2895 (SEA CO. 2012). even if a parent has not requested an evaluation, the district has child find responsibilities that are triggered when it has reason to suspect that a student has a disability and may need special education services. 29 The Child Find-RtI Tension! What happens when there s a sea change in philosophy only partially reflected in the law? 30! 2004 Reauthorization: All kids are regular ed kids first President s Commission Rise of early intervention services (15% rule) RtI suggested as a means to improve LD eligibility BUT, child find did not change 10

11 The Child Find-RtI Tension When the parent wants evaluation.! Student v. Austin ISD, 110 LRP (SEA TX 2010). At age 3, the student had been diagnosed with ADHD. In addition, his grandmother/guardian was concerned about his life-skills competencies. 31 Although he passed the statewide assessment in reading (probably in 3 rd grade) on a second administration, the school was concerned enough about his reading that it involved a reading specialist and provided him with small-group reading support. The Child Find-RtI Tension When the parent wants evaluation.! Student v. Austin ISD, (continued) The grandmother consulted with a neurosurgeon, who contacted the principal about the possibility of qualifying the boy as OHI ( Other Health Impaired ). 32 In addition, the doctor provided the school with a prescription for neuropsychological testing to further substantiate the request for consideration of special education services. The school, however, failed to follow up on the request for consideration of testing or OHI eligibility The Child Find-RtI Tension When the parent wants evaluation.! Student v. Austin ISD, (continued) The grandmother contacted the student s 4 th grade teacher regarding testing in September of Teacher explained the District s response-tointervention process (called IMPACT), and referred the child to the IMPACT team, which held a meeting without the grandparent. The diagnostician was of the opinion that RtI was an absolute requirement prior to referral and testing

12 The Child Find-RtI Tension When the parent wants evaluation.! Student v. Austin ISD, (continued) The school s reading specialist, assessed the boy in October 2009, and found a low fluency rate. After more intensive intervention by the reading specialist, however, his fluency rate improved. 34 Meanwhile, the grandmother proceeded to obtain her own independent testing that revealed the student had ADHD, dysgraphia, and was LD in basic reading and in written expression. It also recommended 504 services, various accommodations, and OT testing. The Child Find-RtI Tension When the parent wants evaluation.! Student v. Austin ISD, (continued) By this time the student was receiving failing grades in three subjects. After another IMPACT team meeting, the team planned to develop a 504 plan for the student. At the 504 meeting, the grandparent was presented with a consent form for 504 evaluation and services, but was confused about what that meant and whether the school was proceeding to IDEA testing. 35 The Child Find-RtI Tension When the parent wants evaluation.! Student v. Austin ISD, (continued) The team noted that although the boy had responded well to interventions put into place during the IMPACT process, he still functioned below grade level and was making slow progress in comparison with his peers. At the meeting, the grandparent provided the team with a copy of the independent evaluation conducted four months earlier

13 The Child Find-RtI Tension When the parent wants evaluation.! Student v. Austin ISD, (continued) 37 The team did not inform the grandmother that she had a right to request special education testing, but the diagnostician suggested that special education testing could be initiated while also commenting that I have to be very strict by saying I can t I can t look at your kiddo until we try some interventions do a lot of interventions. The school did not provide the grandparent with a consent form for IDEA testing. The Child Find-RtI Tension When the parent wants evaluation. 38! Student v. Austin ISD, (continued) It also neither initiated the referral, nor issued the guardian a notice-of-refusal form. The Hearing Officer found that subsequent to this meeting, the diagnostician reviewed the private evaluation, and wrote in an that we are not at a point of considering a special education evaluation for [the student] just yet, but I did want you to know that the data we have is a good indicator that [the student] would be eligible for special education if we decided to go there. The Child Find-RtI Tension When the parent wants evaluation.! Student v. Austin ISD, (continued) The grandparent retained an advocate and attorney, who filed a request for due process alleging a failure to identify. In response, the District formally offered to conduct a full initial evaluation of the student. 39 The evaluation found that the student qualified as LD in reading comprehension, and OHI because of his ADHD. 13

14 The Child Find-RtI Tension When the parent wants evaluation.! Student v. Austin ISD, (continued) At the initial IEP meeting, he was placed in special education, and provided with consultative OT services, all the accommodations in the 504 plan, and monitoring by a special education teacher in the classroom. 40 By this time, he had improved in reading fluency, as tested by the reading specialist, and also passed the 4 th grade reading statewide assessment! The Child Find-RtI Tension When the parent wants evaluation. 41! The Hearing Officer s Decision in the Austin ISD case. Ultimately, says the Hearing Officer, there was a classic failure to communicate in this matter, yet, the school district responded to the student s changing needs by adding increased accommodations and interventions before the student began special education services. The school applied successive interventions to this program as part of the district s RTI process beginning in September The Child Find-RtI Tension When the parent wants evaluation. 42! The Hearing Officer s Decision As of September 2009, when the child s doctor approached the principal, the district had reason to know that the student was likely a student with a disability, and that grandmother wanted testing. Petitioner s grandmother made a parental request for testing for the student and, as a result, the school district had a duty to evaluate the student that overrode the district s use of the local district RTI process the IMPACT committee before evaluating the student for special education. 14

15 The Child Find-RtI Tension When the parent wants evaluation.! The Hearing Officer s Decision While the school had refused the request for evaluation, it never provided the grandmother with written notice of the refusal, as required under the IDEA. This is a procedural flaw. 43 (As far as the school staff was concerned, however, they had not really refused the evaluation request, they had merely explained the RtI process to the grandparent and followed it as they understood it.) The Child Find-RtI Tension When the parent wants evaluation.! The Hearing Officer s Decision The Hearing Officer excused the procedural violation, since, it did not seriously infringe on her opportunity to participate and develop Petitioner s educational program and relief was denied. 44 Ultimately, the fact that the District acted in a timely and increasingly proportionate fashion with its regular intervention programs saved the legal case, since the student responded well. But the lesson is that parent referral changes things. How does RtI impact the duty to evaluate?! Memorandum to State Directors of Special Education, 56 IDELR 50 (OSEP 2011). 45 The regulations at 34 CFR (b) allow a parent to request an initial evaluation at any time to determine if a child is a child with a disability. The use of RTI strategies cannot be used to delay or deny the provision of a full and individual evaluation, pursuant to 34 CFR , to a child suspected of having a disability under 34 CFR

16 How does RtI impact the duty to evaluate?! Memorandum to State Directors of Special Education, 56 IDELR 50 (OSEP 2011). If the LEA agrees with a parent who refers their child for evaluation that the child may be a child who is eligible for special education and related services, the LEA must evaluate the child. 46 How does RtI impact the duty to evaluate?! Memorandum to State Directors of Special Education, 56 IDELR 50 (OSEP 2011). 47 If, however, the LEA does not suspect that the child has a disability, and denies the request for an initial evaluation, the LEA must provide written notice to parents explaining why the public agency refuses to conduct an initial evaluation and the information that was used as the basis for this decision. 34 CFR (a) and (b). How does RtI impact the duty to evaluate?! Memorandum to State Directors of Special Education, 56 IDELR 50 (OSEP 2011). It would be inconsistent with the evaluation provisions at 34 CFR through for an LEA to reject a referral and delay provision of an initial evaluation on the basis that a child has not participated in an RTI framework

17 The Child Find-RtI Tension! Related OSEP Letters Letter to Zirkel, 56 IDELR 140 (OSEP 2011), it would be inconsistent with the evaluation provisions for an LEA to reject a referral and delay provision of an initial evaluation on the basis that a private school has not implemented an RTI process with a child and reported the results of that process to the LEA. 49 Letter to Ferrara, 60 IDELR 46 (OSEP 2012). State regulation on considering all support services available prior to IDEA referral is OK. The Child Find-RtI Tension! IDEA eligibility and the young child with ADHD D.K v. Abington, 59 IDELR 271, 696 F.3d 233 (3 rd Cir. 2012). Numerous cautions against jumping to IDEA evaluation for young struggling children Court looked carefully at how peers were performing/ behaving to provide context Some key quotes by the court and from other courts cited by the 3 rd Circuit decision follow. 50 The Child Find-RtI Tension! D.K v. Abington, (3 rd Cir. 2012). Child Find extends to children who are suspected of [having]... a disability... and in need of special education, even though they are advancing from grade to grade. As several courts have recognized, however, Child Find does not demand that schools conduct a formal evaluation of every struggling student

18 The Child Find-RtI Tension! D.K v. Abington, (3 rd Cir. 2012). A school's failure to diagnose a disability at the earliest possible moment is not per se actionable, in part because some disabilities are notoriously difficult to diagnose and even experts disagree about whether [some] should be considered a disability at all. 52 The Child Find-RtI Tension! D.K v. Abington, (3 rd Cir. 2012). The School District was not required to jump to the conclusion that D.K. s misbehavior denoted a disability or disorder because hyperactivity, difficulty following instructions, and tantrums are not atypical during early primary school years. 53 The Child Find-RtI Tension! Note that an interesting thing happens when regular education expands its intervention offerings there is less for special education to add

19 The Regular Education, 504 & IDEA Relationship 55 All students are regular education students first. Section 504 and IDEA supplement regular ed, but do not supplant it. Regular Education Services Severity of Disability IDEA 504 Need For Educational Services 55 The Logic of Tiered Intervention Meet disability needs at the lowest level possible (Note that this analysis does not work in Section 504 due to the mitigating measures rule!) Regular Education Services IDEA 504 Only move up to the next tier if the lower tiers are unable to meet student need arising from disability The Rise of Early Intervention: Increasing Services & Flexibility in Regular Ed Expanding Modern Approach The limited old school approach Regular Education Services Regular Education Services with Early Intervention

20 The Rise of Early Intervention: More Regular Ed Services Shrink IDEA Limits of expansion & impact largely determined by school s willingness and resources Regular Education Services with Early Intervention IDEA Former IDEA need met by expansion of Reg. Ed & Section How does RtI impact the duty to evaluate?! A suggested approach: If you are serious about RtI, and want to ensure that you have the RtI data you desire prior to IDEA evaluation, find struggling students sooner. Note the impact of this approach 59 How does RtI impact the duty to evaluate?! A suggested approach: If you are serious about RtI, and want to ensure that you have the RtI data you desire prior to IDEA evaluation, find struggling students sooner. Note the impact of this approach 60 20

21 Section 504 Child Find & Referral: RtI & Health Plans 61 Important Sources of Information! Protecting Students with Disabilities: Frequently Asked Questions about Section 504 and the Education of Children with Disabilities (March 27, 2009, last modified December 2013) (Revised Q&A).! The long-awaited ADAAA guidance from OCR, Dear Colleague Letter, 58 IDELR 79 (OCR 2012)( 2012 DCL ). 62 I. New Child Find Issues after the ADAAA! In ADA employment litigation, eligibility rather than accommodation had become the focus.! Faced with eligibility challenges, the courts created new rules that limited eligibility. Sutton trilogy: Evaluate folks as you find them. Toyota: The activity limited by the impairment must be central to the lives of most people

22 I. New Child Find Issues after the ADAAA! The ADAAA was crafted to refocus employment litigation on the duty of the employer, with limited time spent on eligibility. 64 I. New Child Find Issues after the ADAAA 65! Was there a problem with K-12 Section 504 eligibility? Too few students Section 504-eligible in school? Congress focus was not on the schools, but the ADAAA applies the changes to Section 504 as well. Differences between the school-student and employer-employee relationships make for a challenging application of the ADAAA changes to Section 504. I. New Child Find Issues after the ADAAA! The words of eligibility did not change, but Congress added new meaning. 66! Handicapped persons means any person who (i) has a physical or mental impairment which substantially limits one or more major life activities; (ii) has a record of such an impairment; or (iii) is regarded as having such an impairment. 22

23 I. New Child Find Issues after the ADAAA! Change #1: Construe Eligibility Language in Favor of Broad Coverage. The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act. 67 At the very least, where the eligibility question could go either way, Congress would say the student is eligible. I. New Child Find Issues after the ADAAA! Change #2: Expansion of Major Life Activities (+ Major Bodily Functions) Prior to ADAAA: caring for one s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 68 Added by ADAAA: eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. (Note: The list is not exhaustive!) I. New Child Find Issues after the ADAAA! Change #2: Expansion of Major Life Activities (Including Major Bodily Functions) 69 Congress provided that a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 23

24 I. New Child Find Issues after the ADAAA! Change #3: Impairments that Are Episodic or in Remission The ADAAA declares: An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 70 I. New Child Find Issues after the ADAAA! Change #4: Determining Substantial Limitation Under a New Mitigating Measures Rule The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures. 71 I. New Child Find Issues after the ADAAA! Change #5: A Lower Standard for Substantial Limitation 72 In the ADAAA, Congress expresses its expectation that the EEOC will change its current regulation defining substantial limitation as significantly restricted to something more consistent with the ADA Amendments efforts to expand the protection of the ADA. 24

25 I. New Child Find Issues after the ADAAA 73! A school district must conduct an evaluation of any individual who because of disability needs or is believed to need special education or related services DCL, Question 8, p. 7 (citing 34 CFR (a)).! This trigger did not change with ADAAA! School cannot wait for parent to refer if the required suspicion is present. I. New Child Find Issues after the ADAAA! The two groups most impacted by the changes of eligibility, and thus demanding immediate attention are: 1. Students with impairments served through early intervention (EI) or Response to Intervention (RtI) Students with impairments served with a health plan D. Section 504 & the Student with an Impairment in Early Intervention/RtI! A quick, over-simplified summary of what makes the IDEA-RTI relationship work: The relationship arises from a desire to reduce IDEA eligibility caused by over-identification and improper identification by emphasizing the importance of regular education first, and beefing-up the reg ed resources available to struggling students 75 IDEA reserves specially designed instruction for IDEAeligible students 25

26 D. Section 504 & the Student with an Impairment in Early Intervention/RtI! Section 504 and RTI The ADAAA was designed specifically to increase eligibility due to Congress desire to extend the law s protections to more folks. 76 The ADAAA s mitigating measures rule takes the opposite approach from RtI. In 504, we now ask whether the student would be substantially limited without the things the student or school is doing to reduce the impact of the impairment. D. Section 504 & the Student with an Impairment in Early Intervention/RtI. 77! Section 504 and RTI The mitigating measures rule tells schools when determining substantial limitation not to consider the positive impact of:! Medication;! Auxiliary aids and services (such as health/emergency response plans);! Reasonable accommodations (including student service team or early intervention team assistance, informal help from teachers, and logically, RTI);! Other mitigating measures listed by Congress or to be added later. D. Section 504 & the Student with an Impairment in Early Intervention/RtI 31. What is a reasonable justification for referring a student for evaluation for services under Section 504? School districts may always use regular education intervention strategies to assist students with difficulties in schools. Section 504 requires recipient school districts to refer a student for an evaluation for possible special education or modification of regular education if the student, because of disability, needs or is believed to need such services. Revised Q&A, Question

27 D. Section 504 & the Student with an Impairment in Early Intervention/RtI What is the difference between a regular education intervention plan and a Section 504 plan? A regular education intervention plan is appropriate for a student who does not have a disability or is not suspected of having a disability but may be facing challenges in school. Revised Q&A, Question 40. D. Section 504 & the Student with an Impairment in Early Intervention/RtI! That s not always been OCR s position Karnes City (TX) ISD, 31 IDELR 64 (OCR 1999). Under Section 504, prior to evaluating a student s need for special education or related services, the district must have reason to believe that the student is having academic, social or behavioral problems that substantially affect the student s overall performance at school. 80 D. Section 504 & the Student with an Impairment in Early Intervention/RtI! That s not always been OCR s position Karnes City (TX) ISD, 31 IDELR 64 (OCR 1999). 81 A district, however, has the option of attempting to address these types of problems through documented school-based intervention and/or modifications, prior to conducting an evaluation. Furthermore, if such interventions and/or modifications are successful, a district is not obligated to evaluate a student for special education or related services. 27

28 D. Section 504 & the Student with an Impairment in Early Intervention/RtI! So if every district offering of early intervention services or RtI special education for purposes of the Section 504 regulations? No!! An example from an OCR decision 82 D. Section 504 & the Student with an Impairment in Early Intervention/RtI! Stone County (MS), 52 IDELR 51 (OCR 2008). A student with ADHD referred by the parent for Section 504 evaluation was served under the school s RtI program in Tier II. 83 Because of the success of the interventions, the school believed that a Section 504 evaluation was not required as the student did not appear to need special education services. The interventions were significant. D. Section 504 & the Student with an Impairment in Early Intervention/RtI! Stone County (MS), 52 IDELR 51 (OCR 2008). 84 The student was in Tier II and received, in both math and reading, five fifty-three minute computer lab sessions per week for remediation, together with one-to-one tutoring, and interventions to address his behaviors including an FBA, meetings with a behavioral specialist, behavioral timeouts, teaching of alternate behaviors, refocusing on work, and verbal praise. 28

29 D. Section 504 & the Student with an Impairment in Early Intervention/RtI! Stone County (MS), 52 IDELR 51 (OCR 2008). Said OCR The evidence was sufficient to give the district a reasonable belief that the complainant s son did not need special education at the time of the request. Consequently, there was no violation of the Section 504 duty to evaluate. 85 OCR did find a violation due to the school s failure to provide the parent with the notice of rights when the school determined that it would not be conducting an evaluation. So, which kids in RtI or early intervention should be referred?! The post-adaaa paradigm shift: The school does not exclude from consideration for possible Section 504 referral students with impairments in EI/RtI, even when EI/RtI appears to adequately address their needs. 86 So, which kids in RtI or early intervention should be referred?! Do all students with impairments in EI/RtI need special education or related services? No.! A Section 504 definition of the term would be nice.! What about kids in EI/RtI with impairments who are not successful? 87! What about kids in EI/RtI with impairments who are successful due to EI/RtI supports? (see health plan criteria below by analogy). 29

30 Academic Success does not preclude 504 eligibility due to the mitigating measures rule 88! Old school thinking: how can you achieve academic success AND be substantially limited in learning at the same time?! Modern approach in EEOC commentary! Lack of achievement can evidence substantial limitation BUT success (ability to do what nondisabled peers do) does not fully answer the question.! 504 Committee must consider the extra time, effort, compensatory skills and other mitigating measures utilized! Result? Typical eligibility for folks with dyslexia and learning disorders. E. 504 & the student with a physical impairment with a health plan. Two school practices, common prior to the ADAAA, need correcting: 1. Focusing exclusively on the major life activity of learning Thinking that a successful health plan negates the need to consider a student for possible Section 504 referral. E. 504 & the student with a physical impairment with a health plan.! Some districts ignored major life activities other than learning. As the ADA Amendments added new major life activities and major bodily functions, these errors have become even more obvious to OCR. A few examples

31 E. 504 & the student with a physical impairment with a health plan.! Union City (MI), 54 IDELR 131 (OCR 2009). The District refused to provide accommodations for a student with bone cancer in a Section 504 plan because the child s impairment did not impact the major life activity of learning. 91 OCR noted that the impairment periodically affected the student s ability to walk, climb steps, participate in PE, attend field trips, and obtain transportation services. E. 504 & the student with a physical impairment with a health plan.! Union City (MI), 54 IDELR 131 (OCR 2009). OCR held that the district s use of an unduly restrictive definition of major life activities (excluding consideration of those other than learning) and its failure to evaluate the student in a timely manner denied the student FAPE. 92 E. 504 & the student with a physical impairment with a health plan.! Oxnard (CA) Union High SD., 55 IDELR 21 (OCR 2009). Section 504 committee evaluated a student with irritable bowel syndrome (IBS) and another digestive condition. 93 The team noted that the student was making good grades on advanced classes with the help of accommodations provided under a campus student services team (SST) process. 31

32 E. 504 & the student with a physical impairment with a health plan.! Oxnard (CA) Union High SD, (OCR 2009). The team determined that the student s condition did not substantially limit his learning, and that he was not eligible under Section 504. OCR found the district in violation, since the team did not address whether the IBS substantially limited his major life activity of digestive function. 94 E. 504 & the student with a physical impairment with a health plan.! Oxnard (CA) Union High SD, (OCR 2009). Also, when the team determined that his condition did not substantially limit learning, it failed to consider that the condition caused frequent absences and a declining GPA. 95 E. 504 & the student with a physical impairment with a health plan. 96! A 1995 asthma example: Students may have a disability that in no way affects their ability to learn, yet they may need extra help of some kind from the system to access learning. For instance, a child may have very severe asthma (affecting the major life activity of breathing) that requires regular medication and regular use of an inhaler at school. Without regular administration of the medication and inhaler, the child cannot remain in school. Letter to McKethan, 23 IDELR 504 (OCR 1995). 32

33 E. 504 & the student with a physical impairment with a health plan.! Examples from the 2012 guidance letter: A visual impairment that prevents a student from reading regular print with glasses substantially limits major life activity of seeing. Orthopedic impairments substantially limit walking. Ulcerative colitis substantially limits digestive function. 97 E. 504 & the student with a physical impairment with a health plan.! Health Plan: addresses health maintenance and emergency response only. 98! The historical (and now incorrect) approaches: Tiered intervention thinking: If health plan works, why go to Section 504? His physical impairment doesn t impact the major life activity of learning, so no need to evaluate (or if school evaluates, no 504 eligibility). E. 504 & the student with a physical impairment with a health plan.! North Royalton (OH), 52 IDELR 203 (OCR 2009). Prior to the effective date of the ADAAA, North Royalton initially found the student with an anxiety disorder and tree nut allergy ineligible for Section 504 due to the effectiveness of his emergency allergy plan. 99 In November 2008, prior to the ADAAA going into effect, the school reconsidered the eligibility question, and found the student Section 504-eligible under the new rules, with his EAP becoming his 504 plan. 33

34 E. 504 & the student with a physical impairment with a health plan.! North Royalton (OH), 52 IDELR 203 (OCR 2009). OCR determined that at no point was the student denied appropriate services as the student s needs had been met throughout. Says OCR: Health plans are mitigating measures (auxiliary aids and services) 100 The initial evaluation was inappropriate: it only considered limitations to the MLA of learning. E. 504 & the student with a physical impairment with a health plan.! North Royalton (OH), 52 IDELR 203 (OCR 2009). Further, OCR did not dispute the school s claims that the student never had a reaction to nuts at school, and never visited the health services coordinator due to anxiety or allergy issues. 101 No other student with a food allergy being served under an EAP approximately 40 District students had been identified as a student with a disability and provided a Section 504 plan since the ADAAA took effect on January 1, E. 504 & the student with a physical impairment with a health plan.! North Royalton (OH), 52 IDELR 203 (OCR 2009). The resolution agreement with OCR did not require the school to review the files of the other students on EAPs to determine whether referral to Section 504 should be made. 102 Instead, OCR was satisfied with the district issuing a letter to the parents/guardians of all students on EAPs advising of the district s Section 504 procedures and of their right to request an evaluation under Section 504, at no cost to them. 34

35 E. 504 & the student with a physical impairment with a health plan.! Does that mean there is no school duty to refer kids on health plans to 504? NO. 103 Some kids on health plans will need to be referred! Isle of Wight County (VA), 111 LRP 1964 (OCR 2010) (school agrees to review all students on medical/health plans and determine which students need to be referred to Section 504);! Memphis (MI) Community Schools, 54 IDELR 61 (OCR 2009) (school agrees to reevaluate all students on medical management plans denied 504 eligibility or dismissed from Section 504 during the school year). E. 504 & the student with a physical impairment with a health plan. (p. 11). 104! OCR s 2012 guidance: Q13: Is the provision and implementation of a health plan developed prior to the Amendments Act sufficient to comply with the FAPE requirements as described in the Section 504 regulation? A: Not necessarily If, because of the peanut allergy the student has a disability and needs or is believed to need special education or related services, she has a right to an evaluation, placement, and procedural safeguards. So, which kids on health plans should be referred?! The post-adaaa paradigm shift: The school does not exclude from consideration for possible Section 504 referral students with impairments served on health plans, even when the health plan appears to adequately address their needs

36 E. 504 & the student with a physical impairment with a health plan.! So what to do? Option 1: The safest, most conservative position is to refer and evaluate under Section 504 all students on health plans. Any other approach is subject to some degree of risk and should be the result of school-school attorney discussion prior to proceeding. 106 E. 504 & the student with a physical impairment with a health plan.! So what to do? Option 2: Consider this alternative approach with your school attorney Review all of your students on health plans and utilizing some common-sense criteria, determine which student to refer for Section 504 Evaluation. 107 Here s a template to consider: The Florida White Paper approach. E. 504 & the student with a physical impairment with a health plan.! Option 2: Based on some things we learned from OCR decisions: Not all kids on health plans need to be referred, and not all are 504 eligible. 108 Students on health plans cannot be categorically excluded from consideration for Section 504 evaluation, even if their health plans appear to allow these students equal participation and benefit in the school s programs and activities. 36

37 E. 504 & the student with a physical impairment with a health plan.! Option 2: Based on some things we learned from OCR decisions: 109 Each student on a health plan should be considered individually to determine whether a referral for Section 504 evaluation is appropriate. Put simply, significant differences exist among health plans, even for students with the same impairment (see factors below). E. 504 & the student with a physical impairment with a health plan.! Option 2: Based on some things we learned from OCR decisions: 110 The health plan provides evidence of the student s need for services from the school, as well as insight into the impact of disability, giving the school information that can contribute to its thinking on whether the student might be substantially limited by his impairment, and thus needs to be referred. E. 504 & the student with a physical impairment with a health plan.! Option 2: A few filters apply first. 111 Administering Meds. Where the student needs the school to administer medication to meet a student s educational needs as adequately as the needs of nondisabled students are met, whether as part of a health plan or as a stand-alone service, OCR believes the student is receiving a related service triggering the duty to refer for evaluation under Section DCL, Question 8, p

38 E. 504 & the student with a physical impairment with a health plan.! Option 2: A few filters apply first. Other Accommodations are Needed. Where the student, in addition to a health plan, receives accommodations or services from the school to address academic, social, emotional, physical or behavioral needs, the student should be referred for evaluation under Section 504 and no additional analysis on whether to refer is necessary. 112 E. 504 & the student with a physical impairment with a health plan.! Option 2: If those two factors are not present, then we look at the health plan using the following four factors (and others determined appropriate by the school in consultation with the school attorney). 113 E. Factors to consider if proceeding under Option 2! Factor 1: The frequency of the required health plan services. For example, where services are rarely needed during the school year, the student is less likely to require a Section 504 evaluation than when health plan services are required on a daily or weekly basis

39 E. Factors to consider if proceeding under Option 2 115! Factor 2: The intensity of the required health plan services. For example, where a student who self-tests and administers medication for diabetes needs access to the nurse for questions or occasional assistance, the student is less likely to require a Section 504 evaluation than a student who relies on the nurse or other school staff for daily testing and medication due to diabetes. E. Factors to consider if proceeding under Option 2! Factor 3: The complexity of the required health plan services. That is, do the services require a complex or systematic approach to integrate or coordinate efforts of staff and others to meet the student s needs? For example, the more a student requires constant monitoring and exchange of information among staff, parents, and doctor to meet his health needs, the more likely he requires a Section 504 evaluation. 116 E. Factors to consider if proceeding under Option 2! Factor 4: The health and safety risk to the student if health plan services are not provided or are provided incorrectly. For example, the greater the risk of serious injury or death to the student from the failure to provide appropriate health plan services, the more likely the student requires a Section 504 evaluation

40 E. Factors to consider if proceeding under Option 2! In analyzing the student s needs with respect to these four factors, no one factor is necessarily dispositive in every decision. The weight to be given any factor is to be determined by the school as appropriate in its case-by-case determination pursuant to the regulations. 118 Refer or Don t Refer Following each scenario, the team must answer 3 questions: 119 Should the school refer for Section 504 evaluation? Why did you decide to refer or to not refer? What facts guided your decision? Is there anything else in the scenario that we ought to worry about? Refer or Don t Refer 1. Nancy, a student with Asthma! Nancy is a student with asthma. The school requested access to Nancy s medical records, or in the alternative, consent to talk with Nancy s doctor about her asthmarelated needs. The doctor confirmed Nancy s asthma, but did not provide all of the medical information requested by the school. Consequently, Nancy s asthma-related health needs have been addressed by the school through a generic health plan

41 Refer or Don t Refer 1. Nancy, a student with Asthma! In P.E., Nancy performed well and met the physical demands of the class (earning an A ) until the last semester, when her grade dropped to a D because of her inability to run a timed mile within the required time limits. Nancy would become short of breath during the mile run, and have to walk part of the way. Negative comments on Nancy s progress report appear to blame her poor athletic performance on lack of effort. 121 Refer or Don t Refer 1. Nancy, a student with Asthma! Nancy s parent didn t specifically request a Section 504 evaluation for her daughter, but did ask if the school could provide more help to address Nancy s asthma problems.! Months later, the school is still waiting for the medical information it requested from Nancy s doctor. No further action has been taken. 122! Refer or Don t Refer? Discuss! Refer or Don t Refer 2. Craig, a student with ADHD! Craig is a 7 th grade student with ADHD. After careful consideration and discussions with his doctor, Craig s parents have chosen not to medicate him. Craig s educational needs have been addressed through early intervention/rti for the past two years. He receives extra time, appropriate redirection, proximity seating, and a variety of other supports

42 Refer or Don t Refer 2. Craig, a student with ADHD! His behavior troubles appear to arise from simple misunderstandings that grow into more serious verbal and physical altercations with peers and teachers. These behaviors appear to be growing in number and intensity, and the parent is becoming concerned over the number of days the student is excluded from school and denied access to direct instruction. 125! Refer or Don t Refer? Discuss! Refer or Don t Refer 3. John, a student with a peanut allergy! John, a high school student, has had a health plan for the past five years due to a peanut allergy. The plan focuses on emergency response protocols in the event of anaphylaxis. John brings his lunch from home or buys school lunch depending on his mood. He does not require a peanut-free table as his allergy is triggered by ingestion of peanuts. 127 Refer or Don t Refer 3. John, a student with a peanut allergy! John knows what he can eat and is careful about choosing items that will not trigger his allergy. John has never suffered from an allergic reaction at school. His last allergic reaction outside of school was four years ago at a church pot-luck dinner. The nurse indicates that she has seen John in her office from time to time, but not because of his allergy. 128! Refer or Don t Refer? Discuss! 42

43 Refer or Don t Refer 4. Bradley, injured in a motorcycle accident 130! In late July 2011, prior to his senior year, Bradley, a student with high grades and no record of misconduct was involved in a motorcycle accident. He injured his spine, broke 11 ribs, and suffered collapsed lungs, a lacerated liver and a broken arm. On the form provided to the doctor by the school, the doctor was asked when Bradley could return to school. The doctor responded with a question mark. The doctor indicated that while the student could not attend school, he could receive homebound instruction. Refer or Don t Refer 4. Bradley, injured in a motorcycle accident! Due to a variety of post-surgery complications, regular homebound did not begin until late September. 131! After experiencing difficulty in reading comprehension, Bradley was provided with a tutor. When he failed to respond to the tutoring, he complained about the tutors, who in turn, complained that he was disrespectful and lacked intelligence. He returned to school in early November. Refer or Don t Refer 4. Bradley, injured in a motorcycle accident! Upon return to school, and due to continued medication for pain, Bradley was tired and easily frustrated. The school continued to provide tutoring, allowed for flexibility in attendance, work completion and extra time to complete tests. Despite the extra assistance, Bradley did not complete the English 12 work from homebound, and failed the first semester of that class

44 Refer or Don t Refer 4. Bradley, injured in a motorcycle accident! In the spring of 2012, Bradley got into a confrontation with a teacher (he was cited for disrespect and bad language), resulting in his placement in an alternative school. He refused to attend the alternative school, and failed both English 12 and a math class. He did not graduate. 133! Refer or Don t Refer?! Extra Credit: If you think referral is necessary, at what point should referral have happened? Discuss! Refer or Don t Refer 5. Tracy, a student with diabetes! Tracy is an elementary student with diabetes. Pursuant to her health plan and as indicated by her doctor, the school assists Tracy with blood sugar checks and medication numerous times each day. Tracy is frequently absent from school and has been hospitalized several times due to her diabetes. Her condition requires frequent coordination of health information among the school, parents, and Tracy s doctor. 137 Refer or Don t Refer 5. Tracy, a student with diabetes! Tracy is struggling in various core subjects, and has exhibited some work-avoidant behavior. In addition to her health plan, the school has provided a variety of supports through RtI/EI to assist with make-up work and missed instruction.! Refer or Don t Refer? Discuss!