Section 504, School Field Trips, and Students with Disabilities

  In a previous post, Opening the School Door to Section 504, I discussed the Section 504 and ADA requirements to provide services to children with disabilities. If you are not familiar with how section 504 applies to public elementary and secondary schools, you might check out that article before continuing with this article.

 Sub part D of the Section 504 regulations prohibits discrimination against students with disabilities. This means that public schools must provide services to meet the individual needs of students with disabilities as adequately as the schools meet the needs of students without disabilities. Thus, Section 504 focuses on ensuring equal access for students with disabilities to the program offered by the public school. Under 34 CFR 104.34 of the 504 regulations, equal access includes serving students with disabilities in settings (academic and nonacademic) with students without disabilities. Equal access to the school program includes equal access to filed trips.

Unfortunately, sometimes schools overlook including students with disabilities in field trips or assume that because the student has a disability,  the student is automatically excluded from participating. That is not the case. In fact, Section 504 requires that the school district presume that a student with a disability will participate in a field trip. If  the school believes the student should be excluded from the field trip, it must make that determination on an individual basis. Moreover, the school district has the burden of demonstrating that the student should not participate. (Montebello (CA) Unified School District, 20 IDELR 388 (OCR 1993).

In order to ensure that students with disabilities have equal access to the school program, Section 504 requires that schools provide accommodations. So, if a student with a disability needed an accommodation or related aids and services to participate in the field trip, those services must be provided.

For example, in Quaker Valley (PA) Sch. Dist., 39 IDELR 235 (OCR 1986), a girl with a neurodegenerative disorder that affected her motor, sensory, perceptual, and language functioning was denied the opportunity to go on field trips and participate in a swimming program. Due to “safety concerns”, the school principal had unilaterally made the decision to exclude her from six field trips with her third grade class, including a trip to a television station. She was the only student excluded from the field trips. In school the girl was provided with accommodations, such as an escort to assist her when walking and holding her hand. But no consideration was given to providing similar accommodations on the field trips or in the swimming program. The Office for Civil Rights (OCR) determined that the “safety” considerations were not justified and that the girl should have been provided with accommodations to ensure her participation in the field trips and the swimming program. Additionally, OCR determined the school district violated Section 504 because it did not notify the girl’s parents of the upcoming field trips, while the other children’s’ parents were notified.

On the other hand, OCR has found that there are times when schools, after individual consideration, may exclude a student from a field trip if the student’s participation presents an unacceptable risk to the student’s health or safety. But the school must be able to justify that determination. In North Hunterdon (MD) Pub. Sch. Sys., 25 IDELR 165 (OCR 1996), OCR determined that the school district was justified in excluding a student from a field trip when the student had several seizures on the same day as the field trip.

Finally, schools cannot require that parents of students with disabilities accompany their children on field trips, if parents of students without disabilities are not required to accompany their children. In Rim of the World (CA) Unified Sch. Dist., 38 IDELR 101 (OCR 2002), a student’s Braille assistant was told that the student could not participate in a field trip unless accompanied by a family member. This violated Section 504, because the parents of students without disabilities were not asked to accompany their children.

Field trips are a very important part of the school experience. Section 504 requires that schools presume students with disabilities will participate in field trips along side children without disabilities. If there are concerns that a student’s participation may be unsafe or a risk, the school should consider providing accommodations and related services to support the student’s participation. If the school still believes the student’s participation to be unsafe, the decision to exclude the student must be made on an individual basis and the school district has the burden of demonstrating that the student should not participate.

Second Edition of The Everyday Guide to Special Education Law Now Available

  Readers, at the end of May I posted that the Second Edition of my book The Everyday Guide to Special Education Law was available for preorder. The book is here and can be ordered now.

 

  Like the previous book, the second edition contains information about obtaining a free appropriate public education, IEPs, discipline, dispute resolution, extended school year, early childhood services, and 504 plans. Additionally, the new second edition has been updated to include the most recent changes in federal law including:

 • the IDEA requirements for services plans for children placed in private schools
 • how to file complaints with State Education Agencies for violations of the IDEA including obtaining compensatory services
 • timelines for resolving disputes under the IDEA and how to use “mediation” and the new “resolution process”
 • the evaluation process and response-to-intervention (RTI)

  The second edition of The Everyday Guide is priced at $24.95. Discounted prices are available for bulk orders. If you are interested you may order it now.

 

From the Outside Looking In: Independent Educational Evaluations

   The parents’ right to obtain an independent educational evaluation (IEE) of their child is an important IDEA procedural safeguard. School districts conduct evaluations to provide information to the student’s IEP team to determine whether a student has a disability and, if so, the services the student will need. Thus, a student’s school program is largely based on the results of evaluations. An inaccurate or incomplete evaluation may lead to inappropriate services.

 

    So, there are times when parents might be concerned that the school’s evaluations do not accurately reflect their child’s disability or educational needs. And, there are times when parents would just like a second opinion. An IEE means an evaluation conducted by a qualified examiner who is not employed by the public agency responsible for educating the child. Thus, obtaining an Independent Educational Evaluation allows parents access to an evaluation conducted by someone outside of the school district and to provide that information to their child’s IEP team.

 

Independent Educational Evaluations at Parent Expense

 

      Parents have the right to obtain an IEE at their own expense and share it with the school district. If parents request an IEE, school districts are required to provide the parents with information about where they may obtain an independent evaluation. Moreover, if parents share their privately purchased evaluation with the school district, the IEP team must consider the results of the evaluation. Considering the IEE, however, does not mean the IEP team must agree with it. If the IEP team disagrees with all or part of the IEE, the team should document why it did not accept the findings and recommendations of the independent educational evaluation.

 

     Additionally, if the parents share their privately purchased evaluation with the school district and there is a hearing regarding the child’s program, the IEE may be presented by the parents or the school district as evidence at the hearing.

 

Independent Educational Evaluations at Public Expense

 

      If parents disagree with the evaluations done by the school district, the parents have the right to request an IEE to be paid at public expense. If parents request an IEE at public expense, the school district must either (1) provide the IEE or (2) request a hearing to show that the school district’s evaluation was appropriate. Thus, if the district does not wish to pay the costs of the independent evaluation, the school district must request a hearing to show that the district’s evaluation is appropriate.

 

      If parents obtain an evaluation at public expense, the district must consider the results of the evaluation in making educational decisions about the child. Again, the fact that the district must consider the evaluation does not mean that it must agree with its findings and recommendations. Finally, if there is a hearing regarding the child’s program, the publicly funded IEE may be presented as evidence by the parents or the school district at the hearing.

 

What Does Public Expense Mean?

 

     At public expense means that the school district pays for the full cost of the IEE or ensures that the evaluation is provided at no cost to the parent. According to the Office of Special Education Programs (OSEP) in Letter to Heldman 20 IDELR 621(OSEP 1993), in a case in which an overnight trip was necessary to obtain the IEE, public expense may include covering the parents’ related travel costs, including reasonable meal and lodging expenses. Parents are not entitled to unlimited evaluations at public expense. The IDEA 2004 clarified that parents are limited to only one IEE each time the school district conducts an evaluation with which the parent disagrees.

 

May the Independent Evaluator Observe the Student in the Current Placement?

 

    Under the IDEA regulations at 34 CFR 300.502 (e), if the IEE is at public expense, “the criteria under which the evaluation is obtained, including the location of the evaluation and the qualifications of the examiner, must be the same as the criteria which the public agency uses when it initiates its evaluation.” According to OSEP in Letter to Wessels 16 IDELR 735 (OSEP 1990), this means if the school district (public agency) observed the student as part of its evaluation, or if the district’s “assessment procedures make it permissible to have in-class observation of the child, the independent evaluator has the right to do so.”

 

     What if the district’s procedures do not allow in-class observation? In that case, if the parent believes that in-class observation is necessary to assess the child, the parent can request a hearing to challenge the district’s evaluation because it did not include in-class observation.

 

Conclusion

 

     It has been my experience, that sometimes school districts will purchase independent evaluations to obtain additional information on a child’s educational needs. The IEP team wants to serve the child and may welcome an independent assessment to help design a program to meet the child’s needs. Additionally, an independent evaluation can sometimes be useful to help resolve disagreements between a child’s parents and school personnel. The opinion of an independent person, with “no axe to grind,” may help the parents and the school resolve a disagreement and avoid the need to resort to lengthier dispute resolution procedures.  An independent evaluation may be a very helpful tool for an IEP team to identify the needs of a student with a disability. 

 

Follow

Get every new post delivered to your Inbox.

Join 627 other followers

%d bloggers like this: