Upload
others
View
4
Download
0
Embed Size (px)
Citation preview
1
What We Don’t See Still Hurts (Badly!): Provision of a Legally
Compliant Education for Students with Pain Disorders
Prepared for the 2015 Education Law Association Annual Conference
Cleveland, Ohio
By
Kelly A. Sherrill Linkous, Esq., J.D., Ph.D.
Assistant Professor and Honey S. Nashman Faculty Member of the Year,
The George Washington University
and
P. Tyson Bennett, Esq., J.D.
Senior Named Partner, Carney, Kelehan, Bresler, Bennett & Scherr, LLP
2
ABOUT THE AUTHORS
P. Tyson Bennett, Esq., J.D. is the managing partner of the Annapolis, Maryland office of the
law firm of Carney, Kelehan, Bresler, Bennett & Scherr, LLP, a mid-sized Maryland firm with
three offices located throughout the state. Mr. Bennett’s law practice concentrates on school
law, with an emphasis on disabilities law. He has represented local school systems in Maryland
for the past thirty years. During that time, he has taught education law at Johns Hopkins
University and has lectured at other colleges and universities, including Penn State, the
University of Washington, the George Washington University and the Franklin Pierce Law
Center of the University of New Hampshire. Mr. Bennett is a regular presenter at ELA’s annual
conference and at other school law conferences across the country. He has served as a board
member and as president of ELA (2005), is a past president of the Maryland Council of Local
School Board Attorneys, and is a member of the National School Boards Association Council of
School Attorneys.
Kelly Sherrill, Esq., J.D., Ph.D. is an Assistant Professor at The George Washington University
(GW) in the Educational Administration and Policy Studies (EAPS) program and winner of
GW’s “Honey S. Nashman Faculty Member of the Year Award” for 2014-15. Dr. Sherrill
coordinates and directs the EAPS doctoral program. She teaches “School Law and Policy,” as
well as “Leadership, Power and Education” (a first-semester doctoral course) and the “Pre-
Dissertation Seminar” (a fifth semester doctoral course where students write Chapters 1 and 2 of
their dissertation). Prior to joining GW as a faculty member, Dr. Sherrill practiced education law
in Georgia and Virginia, where her affiliated firms represented (collectively) five large, metro-
Atlanta school districts, many smaller, rural Georgia school districts, and over 80 of Virginia’s
school districts. Dr. Sherrill’s legal expertise includes special education law, First Amendment
law, law of student rights, student records law, and other areas of law applicable and relevant to
public schools. Dr. Sherrill obtained her J.D. from GW in 2001 and her Ph.D. in Educational
Administration and Policy from the University of Georgia in 2009.
3
I. INTRODUCTION
The purpose of this presentation is to provide an overview of the law impacting provision
of educational opportunities, accommodations and services to students with pain disorders. This
paper utilizes §504 of the Rehabilitation Act of 1973 (§504), the Americans with Disabilities Act
(ADA), and the Individuals with Disabilities Act (IDEA) and their accompanying regulations to
identify legal issues that arise with students who suffer from primary disorders such as migraine
headaches, lupus, fibromyalgia, endometriosis, Crohn’s/colitis, and other pain-inducing
disorders.1 The paper will review relevant sections of the aforementioned statutes and regulations
and the case law and due process hearing decisions deciding issues involving students with pain
disorders.
Students with pain disorders experience numerous and varied symptoms and
repercussions because of their disorders. Students who experience pain due to frequent migraine
headaches, fibromyalgia, lupus, chronic fatigue syndrome, and similar disorders may miss a
substantial amount of school (absenteeism and tardiness), may not be able to complete
assignments in the time expected because of the interference of pain and lack of sleep, may have
trouble attending in class, and may have physical limitations impacting their ability to engage in
note taking, paper writing, reading, and group projects. Indeed, they may be unable to attend
school at all. These limitations and repercussions may affect their academic performance,
although a district may not focus exclusively on the student’s major life activity of academic
learning in determining whether she is eligible for FAPE under §504.2
This paper will review the issues, facts and analysis from relevant case law and state due
process hearing decisions to discuss how courts or hearing officers decided issues involving
● application of §504, ADA and/or IDEA;
1 This presentation focuses on students whose primary disability is a pain disorder. It
excludes cases that involve students who have other primary disabilities, such as autism,
emotional disturbances, intellectual disabilities, or specific learning disabilities, and who also
have concurrent pain disorders. Importantly, however, school districts must accommodate and
provide FAPE for any concurrent disabilities experienced by students who otherwise receive
services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq.
(2004), or under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 705, 794 et seq.
(1973), as amended by the Americans with Disabilities Act Amendments of 2008, 42 U.S.C. §
12102 et seq. (2008).
2 See, e.g., Letter to McKethan, 23 IDELR 504 (OCR 1995).
4
● eligibility determinations and provision of FAPE under any of these statutes;
● legal issues that presented for students with pain disorders;
● what services and accommodations were appropriate for students with a variety of
pain disorders; and
● other issues that arose in these decisions.
II. STATUTORY OVERVIEW
A. SECTION 504 OF THE REHABILITATION ACT OF 1973 AND THE 2008
AMERICANS WITH DISABILITIES ACT AMENDMENTS
The majority of cases and due process hearing decisions apply §504 to issues involving
the education and treatment of students with pain disorders. Eligibility for services and
protection under §504 require a school division to determine that a student, as a result of an
evaluation, has a “physical or mental impairment” that “substantially limits one or more major
life activities.”3 Major life activities include, but are not limited to caring for one’s self; eating;
performing manual tasks; sleeping; walking; bending; seeing; standing; hearing; lifting;
speaking; reading; breathing; concentrating; learning; thinking; working; and communicating.4
Congress also 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.”5 Importantly, OCR has warned schools not to limit their evaluation
inquiry to the major life activity of “learning.”6
The 2008 Amendments to the ADA – which apply to construction of §504 – state that the
“definition of disability . . . shall be construed in favor of broad coverage of individuals . . . to the
maximum extent permitted by the terms of this Act.”7 Further, determination of “whether an
3 29 U.S.C. §705(20)(B); 42 U.S.C. §12102(1).
4 34 C.F.R. §104.3(j)(2)(ii); 42 U.S.C. §12102(2)(A).
5 42 U.S.C. §12102(2)(B).
6 See, supra, note 2.
7 42 U.S.C. §12102(4)(A).
5
individual’s impairment is a disability . . . should not demand extensive analysis.”8 And it
prohibited school districts from considering the ameliorative effects of most mitigating measures,
such as medications or devices, in determining whether a person’s impairment is substantially
limiting.9 Finally, an episodic impairment, such as migraine headaches or pain related to illnesses
such as Crohn’s disease and fibromyalgia, may still qualify a person under §504/ADA as long as
it is substantially limiting when active.10
An impairment need not prevent or severely or
significantly restrict a major life activity in order to be substantially limiting.11
OCR has stated
that “in virtually every case, a determination in favor of disability will be made.”12
Once a school division determines that a student has a physical or mental impairment that
substantially limits at least one major life activity, it must determine what – if any – services the
student must receive in order to receive a free, appropriate public education (FAPE). The 504
regulations provide that a “recipient that operates a public elementary or secondary education
program shall provide a free appropriate public education to each qualified [person with a
disability] who is in the recipient’s jurisdiction, regardless of the nature or severity of the
person’s [disability].”13
The 504 regulations further state that provision of general or special
education and related aids and services that “are designed to meet individual educational needs
of [disabled] persons as adequately as the needs of [nondisabled] persons are met.”14
While not
8 42 U.S.C. §12101(b)(5).
9 42 U.S.C. §12102(4)(E).
10
42 U.S.C. §12102(4)(D).
11
42 U.S.C. §12101(a)(8).
12
Dear Colleague Letter, 58 IDELR 79 (OCR 2012).
13
34 C.F.R. § 104.33(a). ADA also contains substantive requirements akin to FAPE: “no
qualified individual with a disability shall, by reasons of such disability, be excluded from
participation in or be denied the benefits of the services, programs, or activities of a public entity,
or be subjected to discrimination by such entity.” 42 U.S.C. § 12132. OCR has stated that school
districts must provide FAPE to comply with the ADA. Letter to Rahall, 21 IDELR 575 (OCR
1994).
14
34 C.F.R. § 104.33(b)(1)(i).
6
required, school districts may ensure that they meet FAPE through an Individual Education
Program (IEP as it would if the student were eligible under IDEA.15
Courts and OCR are divided on the standard required for providing a FAPE under
Section 504. The federal courts have required that schools provide reasonable accommodations
to 504-eligible students.16
Federal courts will find that a school district has met its FAPE
obligations under Section 504 if the education programs for students with disabilities are
designed to meet their individual needs to the same extent that the needs of nondisabled students
are met. OCR, however, has stated that this standard is too low: “The ‘reasonable
accommodations’ legal standard is not applicable to FAPE under Section 504.”17
If a school
district provides special education and related services that are appropriate under IDEA, then it
has met the obligations of 504 (although courts and OCR debate whether meeting the IDEA
standard for FAPE is required for students served only under 504). OSEP has distinguished the
obligation to provide FAPE under 504 as consisting of either regular or special education, and
related aids and services, as implemented by any appropriate means.18
Importantly, a school
district has an obligation to fund whatever services needed to deliver FAPE under 504, without
regard to the costs of such services.19
B. INDIVIDUALS WITH DISABILITIES EDUCATION ACT (“IDEA”)
If a student’s pain disorder meets the eligibility criteria of “Other Health Impairment”
under IDEA, and the child, “by reason thereof, needs special education and related services,”20
then the child would qualify for eligibility and receive services under IDEA. Importantly,
15
34 C.F.R. § 104.33(b)(2). 16
See, e.g., J.D. v. Pawlet Sch. Dist., 224 F.3d. 60, 71 (2d Cir. 2000); Brado v. Weast, 2010
U.S. Dist. LEXIS 5932, at *11 (D. Md. Jan. 26, 2010) (“to comply with [§ 504], MCPS must
provide reasonable accommodations for handicapped students,” citing 29 U.S.C. § 794).
17
Letter to Zirkel, 20 IDELR 134 (OCR 1993).
18
Letter to Williams, 21 IDELR 73 (OSEP 1994).
19
Letter to Zirkel, 16 IDELR 1177 (OCR 1990); Letter to Zirkel, 20 IDELR 134 (OCR
1993).
20
20 U.S.C. § 1401(3); see also 34 C.F.R. § 300.8(a)(1).
7
IDEA’s accompanying regulations require that, to need special educational and related services
under IDEA, the child’s condition must adversely affect her educational performance.21
Congress left the states to define the terms “adversely affects a child’s educational performance”
and “needs special education and related services.”22
A child with an Other Health Impairment has –
limited strength, vitality, or alertness, including a heightened alertness to environmental
stimuli, that results in limited alertness with respect to the educational environment, that
(i) is due to chronic or acute health problems such as asthma, attention deficit disorder or
attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia,
lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette
syndrome; and
(ii) adversely affects a child’s educational performance.”23
Students with pain disorders easily meet prong (i) of the regulatory definition for Other Health
Impairment. The IDEA eligibility issue involves prong (ii), whether the pain disorder also
adversely affects that child’s educational performance. Several decisions have turned on
whether a student’s pain disorder adversely affected her education,24
while several more cases
21
34 C.F.R. § 300.8(c)(1)-(c)(13).
22
J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 66 (2d Cir. 2000). For instance, Massachusetts
finds that a disability “adversely affects a child’s educational performance” when “the student is
unable to progress effectively in the general education program without the provision of
specially designed instruction, or is unable to access the general curriculum without the provision
of one or more related services . . . .” 603 C.M.R. §28.05.
23
34 C.F.R. § 300.8(c)(9).
24
See S.P. v. Fairview Sch. Dist., 2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30, 2014)
(parents contended that student with severe refractory migraine headaches should have been
found eligible under IDEA as a student with an OHI because the migraines caused his failure to
attend school; the court declined to rule on the merits of this claim due to insufficient pleading);
Brado v. Weast, 2010 U.S. Dist. LEXIS 5932 (D. Md. Jan. 26, 2010) (holding that a student with
Postural Orthostatic Tachycardia Syndrome, or POTS, that caused her to experience severe pain
throughout her entire body was not eligible under IDEA as a student with OHI because no
medical or educational experts testified that she required altered instruction, such as
hospital/homebound instruction, to make progress in the regular curriculum); Boston v. Bureau
of Special Educ. Appeals, 2008 U.S. Dist. LEXIS 39992, at *18 (D. Mass. Apr. 30, 2008)
(finding that a student with Crohn’s disease which limited his ability to attend school, thereby
8
and selected due process hearing decisions merely reference students with pain disorders who
qualified for special education and related services as OHI under IDEA.25
limiting his ability to progress from grade to grade, “comes within the definition of a child with a
disability under IDEA”); Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 150 (2d Cir. 2002)
(finding that a student with chronic fatigue syndrome and fibromyalgia could have been found
eligible under IDEA due to “disabling physical ailments that limited her strength, vitality and
alertness and made it impossible for her to attend school”); J.C. v. Cumberland Valley Sch. Dist.,
ODR No. 14638-1314KE (SEA Pa. Feb. 3, 2015) (agreeing with school district’s determination
that student with Crohn’s disease was not eligible under IDEA as a student with an OHI because
his inability to attend school was not adequately proven to be related to his disability; student
was eligible for services under Section 504 only); Forest Hills Pub. Schs., 2011-782 (SEA Mich.
Jan. 27, 2012) (finding that a school district should have found a student with chronic fatigue
immune deficiency syndrome and fibromyalgia eligible as a student with OHI under IDEA
because her disorders led to truancy, “limit[ing] the amount of time she [was] able to spend on
her education and, in turn, [affected] her educational performance,” at *23). 25
While not at issue in the case, the court in D.G. v. Flour Bluff Indep. Sch. Dist., 481 Fed.
Appx. 887, 893, 2012 U.S. App. LEXIS 11100, at **17 (5th Cir. June 1, 2012) referenced a
school district’s provision of services under IDEA for a student whose sole disability at the time
was rheumatoid arthritis (“D.G. eventually was determined eligible under IDEA for special
education . . . on a different basis – his recently diagnosed and worsening rheumatoid arthritis.”).
In William W. v. Board of Educ. of Moline Sch. Dist. No. 40, 2007 U.S. Dist. LEXIS
3959 (C.D. Ill. Jan. 18, 2007), a student who had asthma, GERDS, migraines, rhinitis and lactose
intolerance. was eligible for special education services under IDEA. The student in the William
W. case, however, had extensive medical problems beyond the pain disorder of migraines that
impacted her learning. The issue in this case involved eligibility as a student with speech and
language disabilities. Accommodations related to the student’s migraine headaches was not at
issue.
See, also, E.E. v. Mifflinburg Area Sch. Dist., 14254/13-14KE (SEA Pa. Mar. 18, 2014)
(a student with chronic fatigue syndrome and migraine headaches found eligible for special
education and related services under IDEA as a student with an OHI failed to receive FAPE);
Parents v. San Jose Unified Sch. Dist., OAH Case No. 2010050065 (SEA Cal. Sept. 29, 2010)
(student with Systemic Juvenile Idiopathic Arthritis was eligible under IDEA as a student with
an OHI); Irvine Unified Sch. Dist. v. Student, OAH Case No. 2005090857 (SEA Cal. Mar. 13,
2006) (student with Juvenile Dermatomyositis, an autoimmune inflammatory disorder, and
rheumatoid arthritis, was eligible as a student with OHI under IDEA); Chippewa Valley Sch.
Dist., SEH 1997-107a (SEA Mich. Oct. 28, 1997) (referencing the IDEA eligibility of a student
with a severe form of migraine, variant headaches due to her inability to attend school and
necessity of home-based instruction); but, see, N.H. v. Mathematics, Civics and Sciences Charter
Sch., ODR No. 00252/09-10LS (SEA Pa. Dec. 2, 2009) (student with migraine headaches
eligible for services under Section 504 only).
9
III. LEGAL ISSUES
A. ELIGIBILITY
All cases reviewed by the presenters involved students with primary pain disorders who
were eligible for services either under § 504 or under IDEA. As discussed above, students with
pain disorders almost unequivocally have a major life activity affected by such disorder,
qualifying them for services under § 504.
The presenters found only one case involving a school district’s failure to find a student
with a pain disorder eligible under either § 504 or IDEA.26
The presenters found multiple cases
and due process hearing decisions where students were already eligible for special education and
related services under IDEA prior to the proceedings,27
and three cases where the student’s
eligibility for special education and related services under IDEA was at issue.28
In Weixel v. Bd. of Educ. of N.Y.,29
the Second Circuit considered whether a student with
chronic fatigue syndrome and fibromyalgia was eligible under IDEA due to “disabling physical
ailments that limited her strength, vitality and alertness and made it impossible for her to attend
school.”30
Ms. Weixel, proceeding pro se, alleged that her daughter Rose became “chronically
sick with infected tonsils, swollen glands, muscle and joint pains, headaches, nausea, abdominal
pains, exhaustion, and intermittent fever” during her seventh grade year.31
Rose was unable to
attend school, and the principal and guidance counselor subsequently filed both negligence
chargers and began truancy proceedings against Ms. Weixel.32
Even after Rose’s pediatrician and
immunologist diagnosed her with chronic fatigue syndrome and fibromyalgia and documented
her inability to attend school, the principal and guidance counselor proceeded with complaints
26
Weixel, 287 F.3d 138, 147 (2d Cir. 2002).
27
See, supra, n. 25.
28
See, supra, n. 26.
29
287 F.3d 138, 150 (2d Cir. 2002).
30
Id. at 150.
31
Id. at 142.
32
Id. at 142-43.
10
against Ms. Weixel for child neglect.33
Ms. Weixel repeatedly requested disability
accommodations and home instruction for Rose, with no cooperation from the school.34
When
Rose was well enough to attend school, the guidance counsel refused to recognize her
completion of seventh grade through home schooling and refused to promote her to the eighth
grade.35
Ms. Weixel had to appeal several levels up to the central office administrators for Rose
to begin the eighth grade, which they approved; however, because Rose’s illness required her
absence on test day, the school refused to allow Rose to enroll in the Regents-level curriculum,
instead placing her in a lower-level curriculum.36
The guidance counselor instructed Rose that
she could only return to her school if she forfeited enrollment in the Regents-level coursework.37
Thereafter, Ms. Weixel filed formal complaints at the state level and in federal court, pro se,
seeking relief for the alleged discrimination against her daughter.38
The district court held in favor of the school district regarding Rose’s eligibility for
services under both § 504 and IDEA, but the Second Circuit reversed.39
The district court erred
in finding that, because Rose did well academically in homeschooling, she was not eligible for
services under either § 504 or IDEA.40
The Second Circuit held that it was “sufficient for Ms.
Weixel to demonstrate that Rose was substantially limited in a major life activity of central
importance to her daily life because of her CFS,” and that she sufficiently alleged that CFS
limited her ability to walk, exert herself, and attend class at school.41
33
Id. at 143.
34
Id.
35
Id.
36
Id. at 143-44.
37
Id. at 144.
38
Id. at 145.
39
Id. at 147, 149-50.
40
Id.
41
Id. at 147.
11
The Second Circuit further stated that the school district denied Rose the benefit of
making reasonable accommodations for Rose’s disability by providing her any meaningful
public education for much of the seventh grade, and refusing to provide her with home
instruction necessitated by her disability.42
Finally, the circuit court held that Ms. Weixel
submitted a legally adequate retaliation complaint under § 504 because the school district knew
Rose was disabled, knew she was seeking reasonable accommodations under § 504 (a protected
activity), and engaged in a host of retaliatory conduct against Ms. Weixel.43
Finally, the Second Circuit held that Ms. Weixel stated a claim for failure to identify
Rose as a student with an Other Health Impairment (OHI) under IDEA.44
Clearly Rose’s chronic
fatigue syndrome and fibromyalgia were disabling physical ailments that “limited her strength,
vitality and alertness.”45
The condition also made it impossible for Rose to attend school, which
was evidence that the health impairment adversely affected her educational performance.46
As
such, the circuit court treated the inability to attend school because of a disability as affecting
adverse educational performance. For these reasons, the circuit court remanded to the district
court to rule on the merits of the case.47
In S.P. v. Fairview Sch. Dist.,48
parents contended that a student with severe refractory
migraine headaches should have been found eligible under either § 504 or under IDEA as a
student with an OHI. Student began experiencing severe migraines at age four, and was 19 years
42
Id. at 148.
43
Id. at 148-49.
44
Id. at 149-50.
45
Id. at 150.
46
Id.
47
Id. at 151-52. See, also, Forest Hills Pub. Schs., 2011-782 at *23 (SEA Mich. Jan. 27,
2012) (finding that a school district should have found a student with chronic fatigue immune
deficiency syndrome and fibromyalgia eligible under IDEA as a student with OHI because her
“medical conditions and resulting restrictions are affecting her educational performance,” as
“they limit the amount of time she is able to spend on her education”).
48
2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30, 2014).
12
old at the time of the case.49
Student had 40 absences in Kindergarten, and progressed to 101
absences by the sixth grade.50
The parents often failed to provide written excuses for the
student,51
and by sixth grade requested that the student enroll in cyber education. Still, S.P.
continued to miss school and failed to complete the cyber education requirements.52
At this time,
the parents requested an IDEA evaluation.53
The school district found S.P. ineligible for special
education and related services under IDEA, but offered accommodations under § 504.54
S.P.
remained in cyber school, where he performed better and suffered fewer migraines.55
S.P. eventually returned to the public high school, where the parents refused a 504 Plan.56
Still, the high school “had prepared and implemented a number of accommodations for him,”
including development of a schedule that enabled him to transition more slowly into school and
extended time to complete his work.57
Further, if he missed school due to a migraine, teacher
sent work for his father to retrieve.58
He was allowed to use the resource room to lie down or
find a quieter environment, and the school offered individual mental health sessions with a
counselor from the mental health facility.59
Even with these permitted accommodations, S.P. had
excessive absences.60
He did not provide doctors’ notes, so the school notified him that they
49
Id. at *2, *4.
50
Id. at *4-5. 51
Id. at *5.
52
Id. at *6-8.
53
Id. at *8-15. 54
Id. at *14-15.
55
Id. at *15.
56
Id. at *16.
57
Id. at *17.
58
Id.
59
Id.
60
Id. at *18.
13
would have to pursue truancy proceedings.61
The parents did not provide medical documentation
to support any medical reasons for S.P.’s absences.62
Even without medical information, the
school supported the student by providing him with missed assignments and reassigning him to a
resource room two days a week to make up work.63
It also permitted him to take some courses
through cyber school.64
Still, truancy persisted without medical explanation, so the school
instituted truancy proceedings.65
S.P. eventually moved back to taking courses exclusively through cyber schooling, but
even then he was not completing his coursework.66
The parents entered into a § 504 service
agreement with the school district, where S.P. would take cyber classes with flexibility for
completion without time restraints, and allowing waiver of mandated attendance with medical
documentation.67
S.P.’s treating physicians provided written excuses for attendance to the cyber
program, indicating that he continued to suffer from refractory migraine headaches but stating
“that the cyber school program ‘is tailored to him very well. He can take breaks when he has
extreme migraines which are frequent in his case,” and advocating for his continued enrollment
in the cyber program.68
The parents filed for a due process hearing, where they presented a special education
consultant who testified that “the school district erred in failing to identify S.P. as disabled under
the ‘Other Health Impaired’ category, because the migraines caused poor school attendance.”69
61
Id.
62
Id. 63
Id. at *19.
64
Id. at *24.
65
Id. at *24-26.
66
Id. at *27-28.
67
Id. at *28.
68
Id. at *28-29.
69
Id. at *30.
14
The hearing officer found in favor of the school district on all counts, holding that the school did
not err by finding S.P. ineligible for services under IDEA, and holding that the school provided
FAPE under § 504.70
The parents appealed to the district court.
On the IDEA eligibility contention, the parents alleged that, because the migraines caused
his failure to attend school, the disability was adversely affecting her educational performance.
In this case, however, the court declined to find that S.P. was eligible under IDEA because the
parents did not provide persuasive evidence on the issue upon request by the court.71
In Brado v. Weast, a Maryland district court similarly held that a student with Postural
Orthostatic Tachycardia Syndrome, or POTS, which caused her to experience severe pain
throughout her entire body from a toddler to an adult, and who was otherwise served under §
504, was not eligible for services under IDEA as a student with an OHI.72
The District of
Maryland district court upheld the hearing officer’s determination of ineligibility because no
medical or educational experts had testified that she required altered instruction, such as
hospital/homebound instruction, to make progress in the regular curriculum.73
In other words,
had her pain disorder affected her ability to attend school and required her to receive her
education through homebound instruction (or virtual instruction), she would have been eligible
to receive special education and related services under the OHI category in IDEA. And while
the court acknowledged the severity of her disorder, it deferred to the medical professionals on
her ability to attend school, and it referenced her successful academic performance as the reason
she was ineligible under IDEA.
70
Id. at *34. 71
Id. at *49.
72
2010 U.S. Dist. LEXIS 5932 (D. Md. Jan. 26, 2010).
73
Id. at *12-13. Interestingly, the same school district had previously found the student
eligible under IDEA, but reversed its decision when it conducted a full and complete evaluation,
which included discussions with the student’s treating physicians. The court held that the “record
is clear as to her need for frequent breaks, adjusted workloads, alternative test scheduling, and
personalized instruction," which was accomplished under her § 504 plan. Id. at *12. The court
found that “[b]oth the medical expert testimony as well as the educator testimony . . . indicate
that [the student] Molly requires only accommodations . . . [not] special education.” Id. Further,
“no medical expert [other than her primary care physician] suggests that Molly required [hospital
homebound teaching HHT].” Id. at 13.
15
In Boston v. Bureau of Special Educ. Appeals,74
a Massachusetts district court
considered the question of whether a student with Crohn’s disease that limited his ability to
attend school, thereby limiting his ability to progress from grade to grade, “comes within the
definition of a child with a disability under IDEA.” Citing Weixel, the court held that a student
whose severe Crohn’s disease prevented him from attending school, which affected his ability to
progress from grade to grade, “comes within the definition of a child with a disability under
IDEA.”75
The case turned on whether the parents failed to exhaust their administrative remedies
by not filing for a due process hearing, so the court did not decide the issue of IDEA eligibility.
Instead, it instructed the parents that they must exhaust the remedies required under IDEA.76
B. TRUANCY
The reviewed cases and due process hearing decisions overwhelmingly involved some
form of truancy or excessive absences by students with pain disorders.77
When these absences
were causally linked to the student’s pain disorder, as documented by a practitioner, then courts
were more likely to find, as discussed above, that students were eligible under IDEA as a student
with an OHI. A court also was more likely to find retaliation under § 504 when school districts
instituted truancy proceedings in lieu of working to accommodate and educate a student whose
74
2008 U.S. Dist. LEXIS 39992, at *18 (D. Mass. Apr. 30, 2008).
75
Id. at *18. But, see, J.C. v. Cumberland Valley Sch. Dist., ODR No. 14638-1314KE (SEA
Pa. Feb. 3, 2015) (agreeing with school district’s determination that student with Crohn’s disease
was not eligible under IDEA as a student with an OHI because his inability to attend school was
not adequately proven to be related to his disability; student was eligible for services under
Section 504 only).
76
Id. at *20-22.
77
See S.P. v. Fairview Sch. Dist., 2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30,
2014); Brado v. Weast, 2010 U.S. Dist. LEXIS 5932 (D. Md. Jan. 26, 2010); Boston v. Bureau of
Special Educ. Appeals, 2008 U.S. Dist. LEXIS 39992, at *18 (D. Mass. Apr. 30, 2008); Weixel v.
Bd. of Educ. of N.Y., 287 F.3d 138, 150 (2d Cir. 2002); see, also, J.C. v. Cumberland Valley Sch.
Dist., ODR No. 14638-1314KE (SEA Pa. Feb. 3, 2015); E.E. v. Mifflinburg Area Sch. Dist., No.
14254/13-14KE (SEA Pa. Mar. 18, 2014); Forest Hills Pub. Schs., 2011-782 at *23 (SEA Mich.
Jan. 27, 2012); N.H. v. Mathematics, Civics and Sciences Charter Sch., ODR No. 00252/09-
10LS (SEA Pa. Dec. 2, 2009); Irvine Unified Sch. Dist. v. Student, OAH No. N 2005090857
(SEA Cal. Mar. 13, 2006).
16
pain disorder caused the absences.78
When, however, a court or hearing officer did not have
evidence that a student’s absences were caused by his or her pain disorder, then the court would
find in favor of a school district on any § 504 retaliation claims.79
C. HOMEBOUND SERVICES OR CYBER INSTRUCTION
Another recurring fact in the cases and surveyed due process hearing decisions involving
students with pain disorders involved provision of Homebound instruction80
or provision of
education through cyber education.81
When a student is too sick to attend school on a day-to-day
basis, and no supplemental aids or services could make attendance at school a possibility, the
homebound instruction82
or instruction through virtual schooling may be appropriate. Indeed, in
almost every case and due process hearing decision surveyed, presenters found that students with
pain disorders received homebound or virtual schooling for at least part of their educational
78
See, e.g., Weixel, 287 F.3d 138, 150 (2d Cir. 2002).
79
See, e.g., S.P., 2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30, 2014), discussed
supra; see, also, N.H. v. Mathematics, Civics and Sciences Charter Sch., ODR No. 00252/09-
10LS (SEA Pa. Dec. 2, 2009) (finding that a student’s excessive absences were not due to her
migraine headaches; the student rarely saw a doctor for her migraine headaches, and all
evaluators stated that she could attend school even when she had a migraine; when at school, she
never sought a school nurse to obtain medication or medical help for a migraine).
80
See, e.g., Brado v. Weast, 2010 U.S. Dist. LEXIS 5932 (D. Md. Jan. 26, 2010); Weixel,
287 F.3d 138, 150 (2d Cir. 2002); E.E. v. Mifflinburg Area Sch. Dist., No. 14254/13-14KE (SEA
Pa. Mar. 18, 2014); Forest Hills Pub. Schs., 2011-782 at *23 (SEA Mich. Jan. 27, 2012).
81
See S.P. v. Fairview Sch. Dist., 2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30,
2014).
82
State law often governs the requirements for provision of homebound instruction or
services. For instance, Ohio law, O.R.C. § 3323.12, provides
The board of education of a school district shall provide home instruction for children
with disabilities who are at least three years of age and less than twenty-two years of age
and who are unable to attend school, even with the help of special transportation. The
board may arrange for the provision of home instruction for a child by a cooperative
agreement or contract with a county DD board or other educational agency. For the
purposes of determining formula ADM under section 3317.03 of the Revised Code, five
hours of home instruction shall be equivalent to attendance for five school days.
For in depth review of the law of homebound services, see Hans P. Graff, Homebound Services
under the IDEA and Section 504: An Overview of Legal Issues (LRP 2d ed 2013).
17
program. Importantly, however, provision of homebound or virtual education invokes both §
504’s and the IDEA’s “least restrictive environment” (LRE) mandate. IDEA provides that
to the maximum extent appropriate, children with disabilities, including children in
public or private institutions or other care facilities, are educated with children who are
not disabled, and special classes, separate schooling, or other removal of children with
disabilities from the regular educational environment occurs only when the nature or
severity of the disability of a child is such that education in regular classes with the use of
supplementary aids and services cannot be achieved satisfactorily.83
Section 504’s “least restrictive environment,” or LRE, obligations mirror the IDEA.84
The S.P.
court held that, when a student “cannot physically be educated with his peers in a regular
classroom or participate in a school program [because he] cannot attend school,” then
homebound or virtual/cyber instruction is the least restrictive environment for that student.85
When, however, a student is able to attend school with appropriate accommodations, such as
allowing frequent breaks, adjusting workloads, giving alternative test scheduling, and
personalizing instruction, then homebound instruction is not the least restrictive environment
and is not appropriate.86
School districts may also accommodate students with pain disorders by
shortening their school days,87
enabling students to use assistive technology to complete
assignments and receive instruction,88
chunking assignments and extending deadlines,89
and
providing tutors for additional instruction.90
83
20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2). 84
S.P., 2014 U.S. Dist. LEXIS 137567 at *41.
85
Id. at *42-43.
86
Brado v. Weast, 2010 U.S. Dist. LEXIS 5932 at *12-13 (D. Md. Jan. 26, 2010).
87
See, e.g., Hudson Sch. Dist., 58 IDELR 22 (OCR Sept. 30, 2011) (an appropriate
accommodation made for a student who experienced chronic migraines was a shortened school
day).
88
See, e.g., E.E. v. Mifflinburg Area Sch. Dist., No. 14254/13-14KE (SEA Pa. Mar. 18,
2014); Parents v. San Jose Unified Sch. Dist., OAH Case No. 2010050065 (SEA Cal. Sept. 29,
2010).
89
See, e.g., E.E. v. Mifflinburg Area Sch. Dist., supra n. 87.
90
See, e.g., Hudson Sch. Dist., 58 IDELR 22 (OCR Sept. 30, 2011).