Wesley Eby Johnson · Escamilla, Poneck & Cruz, L.L.P.

8282ndnd Legislative Session Legislative Session

• www.legis.state.tx.us

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• HB or SB and then the bill number provided

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• Chapter (first part of the statute: 25.12 is in Chapter 25)

• Article/Section (2nd part of the statute number)

TRUANCY PREVENTION MEASURES; TRUANCY PREVENTION MEASURES; REFERRAL AND FILING REFERRAL AND FILING REQUIREMENT. 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 Referrals or Complaints to Court Must Now: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!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 TeamConcussion 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 To the Greatest Extent Practicable Taking into Consideration: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 Training Regarding Concussions RequiredRequired• Evaluation

• Treatment

• Oversight

• At the time of Appointment

• Required Concussion form for each student participant in an interscholastic athletic activity

www.uiltexas.orgwww.uiltexas.org

• UIL Concussion Management Protocol Implementation Guide

• Frequently Asked Questions

• Free Training Courses

Davis v. CarterDavis v. Carter, 555 F.3d 979  (11, 555 F.3d 979  (11thth Cir. 2009)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 SchoolGoss v. Alloway Township School, 2011 , 2011 U.S. Dist. LEXIS 11420 (Dist. Ct. N. J. U.S. Dist. LEXIS 11420 (Dist. Ct. N. J. 2011)2011) • Student got a

concussion on the school playground

• Unassisted and unsupervised

• Section 1983 claim against the District

• All claims denied

• Different Facts matter

BullyingBullying

• 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”: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 school-related 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: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 More regarding policy and procedure regarding bullying: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 Procedures must be developed for: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 PreventionSuicide 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: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 Sanford v. Stiles, 2004 U.S. Dist. LEXIS 22948  (E.D. Pa. 2004)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….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 ill-conceived 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 Hasenfus v. LaJeunesse, 175 F.3d 68 (1(1stst Cir. 1999) 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?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….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 AllergiesSevere Food Allergies

• HB 742 adds TEC 25.0022

• Defines “severe food allergy” – a dangerous or life-threatening reaction of the human body to a food-borne 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?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

AnaphylaxisAnaphylaxis

• 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 GuidelinesAnaphylaxis 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 AnaphylaxisStudents 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 From the Dept of State Health Services: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 LawAlready LawAsthma or Anaphylaxis Medication:Asthma or Anaphylaxis Medication:Texas Education Code 38.015Texas Education Code 38.015

• Students entitled to Possess and Self-Administer

• 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. DistTaylor v. Altoona Area Sch. Dist., 513 F. ., 513 F. Supp. 2d 540 (W.D. Pa. 2007)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 Numerous claims against District after student’s death: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: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 Closer to Home…Garcia v. Northside Home…Garcia v. Northside ISDISD, 2007 US Dist. LEXIS 103 (W.D. , 2007 US Dist. LEXIS 103 (W.D. San Antonio 2007)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?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 RequiredForms Already Required

• Self Administration of Asthma Medication Form

• Self-Administration Parental Assessment and Consent

• School Asthma Action Plan

• Emergency Plan

Parent Contributions to Individual Parent Contributions to Individual Health Plans: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: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?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 ImportantTiming 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 Children in the Conservatorship of the Statethe 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: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 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 RequirementsMore 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 ComponentsRequired 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 LawInteresting 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 HB 359 Also Relates to Special Education Restraint LawsEducation 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 968HB 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 MisbehaviorSerious 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 504Section 504What’s The Same.....What’s What’s The Same.....What’s Different….And What You Different….And What You

Need to KnowNeed to Know

Section 504Section 504What’s The Same.....What’s What’s The Same.....What’s Different….And What You Different….And What You

Need to KnowNeed to Know

By:Wesley E. Johnson, J.DWesley E. Johnson, J.D.

Escamilla, Poneck & Cruz, LLPEscamilla, Poneck & Cruz, LLP

Section 504 of the Rehabilitation Act of Section 504 of the Rehabilitation Act of 1973 1973 (PL 93-112, September 26, 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, Bryan County, Atlanta GA, 53 IDELR 131 (OCR 2009)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 OCR Determined That the District Violated §504: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 Duty to Evaluate for §504 Eligibility Exists Regardless of Whether the Exists Regardless of Whether the Parent Requests an EvaluationParent 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 What CouldCould Trigger an Internal Duty Trigger an Internal Duty to Refer Student for Evaluation?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….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 What if the Student Isn’t Making Progress with RTI?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 No Obligation to Qualify a Student Who Has No DisabilityStudent 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 What if nothing triggers a concern and the parents never request an and the parents never request an evaluation?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: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 What About Home Schooled Students?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 District is Not Required to Insist that a Student Be Evaluated Absent Parent Student Be Evaluated Absent Parent Consent 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 Section 504 Evaluation RequirementsRequirements

• 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 Variety of Sources…Basic Compliance With the Law!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 Document and Consider All Pertinent Information…Pertinent Information…• Records,

• Assessment data

• Medical reports

• What else?

• Health Forms

• Special Education Documents

• Letters from Physicians

Required in conducting the Required in conducting the evaluation are Persons Who Are evaluation are Persons Who Are Knowledgeable About:Knowledgeable About:

• The child,

• The suspected disabling condition,

• Evaluative procedures,

• The meaning of evaluative data, and

• Accommodation/placement options

Tests and Materials Used to Tests and Materials Used to Evaluate: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 What Does An Eligible Student Then Have A Right to Receive?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 Two Components to What is Offered an Eligible Student: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: 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 Regarded As Disabled or Having a Record Of an ImpairmentRecord 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 ADA Amendment Act of 2008 passed in Septemberpassed in September became effective January 1, 2009. 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” Major Life Activities” ––

• Seeing

• Hearing

• Speaking

• Walking

• Breathing

• Performing Manual Tasks

• Learning

• Caring for Oneself

• Working

ADAA ADAA AddsAdds these to the Statutory List of these to the Statutory List of Major Life Activities:Major Life Activities:

• Bending

• Lifting

• Standing

• Eating

• Sleeping

• Reading

• Concentrating

• Thinking

• Communicating

• Operation of major bodily functions…

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 areADA & Section 504 areCompanion StatutesCompanion 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 –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?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 What If “Learning” is not Substantially Limited by the Impairment?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 Does a Doctor’s Diagnosis Automatically Result in a Student Being Eligible for Result in a Student Being Eligible for Section 504?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 Additional Testing May Be WarrantedWarranted

• District is not required to pay for medical evaluation

• Cannot pay for with federal funds

• Can request or gather additional information if the E. Team needs more information

• Should not deny eligibility solely b/c parent doesn’t provide doctor’s diagnosis

• Team should also not make the diagnosis

• Conduct an evaluation targeted at the particular problem

• Rare – pay for medical evaluation

Extraordinary Circumstances: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 ADA Amendments (ADAA) Made Other Changes to ADA: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 No Longer Consider Mitigating Measures When Determining Section 504 EligibilityWhen 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 We Now Consider the Ameliorative Effects of Mitigating MeasuresEffects 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 Examples of Mitigating Measures Listed in ADAAListed 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’: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 Health Plans = Mitigating MeasureMeasure• 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….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 Does Every Student Taking Medication Qualify For Services?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 Do you need to include mitigating measures to the procedural safeguards?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 FAPEProvision 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 Are Section 504 Accommodations Necessary for Student’s Educational Needs to Be Met as for Student’s Educational Needs to Be Met as Adequately as Non-Disabled Peers?”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 Waive High School Requirements Through a Section 504 Through a Section 504 Committee?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 AreWhat About Impairments That Are Episodic or in Remission? 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 Recommendations for Section 504 Students Whose Mitigating Students Whose Mitigating Measures/Episodic Impairments Measures/Episodic Impairments Make Accommodation Plans Seem Make Accommodation Plans Seem Obsolete…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-evaluationsRe-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?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 Section 504’s Nondiscrimination Protections May Apply:Protections May Apply:

• Record of an impairment that substantially limits….

• Regarded as having an impairment that substantially limits…

• Former special education student fits into this category even if FAPE is not warranted!

• No transitory and minor impairments under these categories (6 months or less)

If the Student Was Evaluated for If the Student Was Evaluated for Special Education Services and Did Special Education Services and Did Not Qualify…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 Berlin (NH) Public Schools,54 IDELR 205(OCR 2009), 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 Your Due Process Procedure is Also Important!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