Homebound Student May Use 504 and the ADA to Challenge School District’s Policy Excluding Him from the Senior Graduation Party and Dance

 In Mowry v. Logan County Board of Education, 58 IDELR 192 (S.D. W. Va. 2012), a West Virginia high school student who was placed on a homebound program due to having Fabry’s disease (a hereditary metabolic disorder) was told if he was “too sick” to attend school, he was “too sick” to attend extracurricular activities such as the senior party and the senior graduation ceremony. The student sued the school district under Section 504 and Title II of the ADA, alleging the district discriminated against him as a homebound student when it prohibited him from participating in these activities. The school district filed a motion to dismiss the suit arguing that the student did not state a claim upon which relief could be granted.

The district court judge, however, denied the motion to dismiss stating:

“Plaintiff claims he was treated differently from other students in Logan County as he was not allowed to participate in extracurricular activities. He alleges that Defendants prevented him from participating because of his ‘inability to physically attend Logan County High School.’ He states that he was often told ‘If you’re too sick to come to school, you’re too sick to attend these events.’ Assuming Plaintiff’s allegations are true, Plaintiff’s complaint sufficiently alleges that Defendants intentionally discriminated against him by treating him differently than other students.”

The Judge denied the school district’s motion to dismiss and the case, if not settled, may now be scheduled for trial.

The decision highlights the need for school districts to consider extracurricular activities at 504 meetings and to individually evaluate each homebound student’s ability to participate in extracurricular activities. Please note that this decision involves a student who, due to having a disability, was receiving services in a homebound placement. That should not be confused with students who by parental choice are home-schooled.

District Discriminated Against Student by Failing to Follow 504 Plan Requiring Weekly E mails and Written Copies of Homework & Lecture Notes

Parents frequently ask which is better enforced: An IEP or a 504 Plan? While the 504 regulations do not specify the detail regarding developing a 504 plan that the IDEA provides regarding IEPs, 504 Plans can be very detailed and can be enforced. For example, in Morris (NJ) School District, 111 LRP 70051 (OCR 2011), the Office for Civil Rights (OCR) determined that the Morris School District discriminated against a student on the basis of his disability because it did not comply with his 504 Plan (see Opening the School Door to Section 504 for more information on 504). The high school student had a 504 plan that required the school district to provide the student : (1) feedback through weekly e mails in each of his classes; (2) written copies of homework assignments; (3) written copies of class lecture notes; and (4) to review and update the Student’s school contract. Concerned that the school was not complying with the 504 Plan in the 2010-2011 school year, the student’s mother filed a complaint with OCR.

 The Office for Civil Rights conducted a very thorough investigation of the parent’s allegations. For example, OCR looked at each of the student’s nine classes during the school year and determined that, while the teachers provided occasional e mails to the student, the e mails were not weekly. Regarding the written homework assignments and class lecture notes, the school district contended that, while the student did not receive written hard copies, he was provided  access electronically via a Netbook and an iPAD. The Office for Civil Rights, however, determined that electronic access through assistive technology was not the same as access to written hard copies of the assignments and notes. Finally, OCR determined that in the 2009-2010 school year, District personnel had developed a contract with the student requiring him to maintain a B+ average or he would suffer a negative consequence, such as being excluded from extracurricular activities. The school district, however, did not review and update the contract for the 2010-2011 school year, violating 504 by not complying with the 504 Plan.

In order to resolve the complaint, the school district agreed to provide training to the teachers and other staff at Morristown High School regarding the requirements of the regulations implementing  Section 504. Additionally, the school district was required to provide documentation of the training, including the name and credentials of the trainer, the date of the training, copies of the training materials, and proof of attendance by the district staff. According to OCR, since the student had graduated and no longer attended the high school, the parent did not request that her son receive compensatory services.

US Department of Education Outlines 15 Principles Regarding the Use of Restraint and Seclusion

Today, the US Department of Education published the Restraint and Seclusion: Resource Document to “help  ensure that schools are safe and healthy environments where all students can learn, develop and participate in instructional programs that promote high levels of academic achievement.” The publication outlines principles for educators, parents, and other stakeholders to consider when developing or refining policies and procedures to support positive behavioral interventions and avoid the use of restraint and seclusion. The following are the fifteen principles taken verbatim from the document. The publication then elaborates on these principles and provides information of the efforts of the Department of Education, the Office for Civil Rights, the Office of Special Education Programs, the Department of Health and Human Services, and  the Substance Abuse and Mental Health Services Administration (SAMHSA) to address these concerns.

” 1.   Every effort should be made to prevent the need for the use of restraint and for the use of seclusion.

   2.   Schools should never use mechanical restraints to restrict a child’s freedom of movement, and schools should never use a drug or medication to control behavior or restrict freedom of movement (except as authorized by a licensed physician or other qualified health professional).

 3.   Physical restraint or seclusion should not be used except in situations where the child’s behavior poses imminent danger of serious physical harm to self or others and other interventions are ineffective and should be discontinued as soon as imminent danger of serious physical harm to self or others has dissipated.

 4.   Policies restricting the use of restraint and seclusion should apply to all children, not just children with disabilities.

 5.   Any behavioral intervention must be consistent with the child’s rights to be treated with dignity and to be free from abuse.

 6.   Restraint or seclusion should never be used as punishment or discipline (e.g., placing in seclusion for out-of-seat behavior), as a means of coercion or retaliation, or as a convenience.

  7.   Restraint or seclusion should never be used in a manner that restricts a child’s breathing or harms the child.

8.   The use of restraint or seclusion, particularly when there is repeated use for an individual child, multiple uses within the same classroom, or multiple uses by the same individual, should trigger a review and, if appropriate, revision of strategies currently in place to address dangerous behavior;   if positive behavioral strategies are not in place, staff should consider developing them.

9.   Behavioral strategies to address dangerous behavior that results in the use of restraint or seclusion should address the underlying cause or purpose of the dangerous behavior.  

10. Teachers and other personnel should be trained regularly on the appropriate use of effective alternatives to physical restraint and seclusion, such as positive behavioral interventions and supports and, only for cases involving imminent danger of serious physical harm, on the safe use of physical restraint and seclusion. 

 11. Every instance in which restraint or seclusion is used should be carefully and continuously and visually monitored to ensure the appropriateness of its use and safety of the child, other children, teachers, and other personnel.

12. Parents should be informed of the policies on restraint and seclusion at their child’s school or other educational setting, as well as applicable Federal, State, or local laws.

13. Parents should be notified as soon as possible following each instance in which restraint or seclusion is used with their child.

14. Policies regarding the use of restraint and seclusion should be reviewed regularly and updated as appropriate.

 15. Policies regarding the use of restraint and seclusion should provide that each incident involving the use of restraint or seclusion should be documented in writing and provide for the collection of specific data that would enable teachers, staff, and other personnel to understand and implement the preceding principles.”

Again, this document can be found at the US Department of Education website.

Justice Department Settles Complaints with Health Care Providers Regarding HIV Discrimination

The U.S. Justice Department (DOJ) announced last Friday that it has settled two complaints involving claims that health care providers refused to serve people with HIV in violation of the Americans with Disabilities Act (ADA). The first complaint was filed by a man with HIV who sought treatment at the Mercy Medical Group Midtown Clinic in Sacramento, Calif. After examining the patient, a podiatrist at the clinic advised him of his treatment options. Although surgery was an option, the podiatrist erroneously told the patient he could not perform the surgery because fo the risk the doctor would contract HIV from the patient during surgery.  The DOJ determined the podiatrist violated the ADA by denying the patient the full and equal enjoyment of the clinic’s services on the basis of his disability.

In the second complaint, following an automobile accident, a man with HIV sought chiropractic treatment from the Knoxville Chiropractic Clinic North Knoxville in Knoxville, Tenn. After examining him, the chiropractor recommended 24 subsequent treatments. On his third visit, however, the receptionist informed him that the doctor would not see him because they could not treat people “like him.” The DOJ determined that the Knoxville clinic violated the ADA by having a “blanket” policy of refusing treatment to persons with HIV.

The settlement agreements require the clinics to develop and implement a non-discrimination policy and to train staff on the requirements of the ADA. Additionally, the Mercy Medical Group and CHW Medical Foundation must pay $60,000 to the complainant and $25,000 as a civil penalty and the Knoxville Clinic must pay a civil penalty of $10,000.

In conclusion, individuals with disabilities who believe they have been discriminated against based on their disability by a health care provider or other public accommodation can find information on how to file an ADA complaint at the US Department of Justice website.

Teacher’s Long-term abuse denied student FAPE resulting in 5 years of compensatory services

In Fulton County School District, 112 LRP 1885 (SEA GA 02/01/12) an Administrative Law Judge (ALJ)ruled that a Georgia school district denied a free appropriate public education (FAPE) to a student with a disability because the district failed to stop a teacher’s known, prolonged abuse of the student when he was in middle school and failed to inform his parents of the abuse. Although the student was already 19 at the time of the  decision, the ALJ ordered the school district to pay for his receipt of five years of private occupational therapy, speech therapy, physical therapy, and supplementary aids and services.

The student had hydrocephalus, cerebral palsy, and a developmental delay. He received special education services and progressed reasonably well throughout elementary school. In 2006, when he was 13 and in middle school, he was placed in a classroom on a hall that only served students with intellectual disabilities.  It was in this classroom that he was abused by a particular classroom teacher. The teacher had been employed by the school district since 2002 and had been reported by a special education coordinator to have a short temper and for yanking and yelling at her students. It was recommended her contract not be renewed. Unfortunately, the middle school principal referred to the poor reference as merely a “personnel issue” and retained the abusive teacher.

Additionally, in 2004, the special education nurse reported the teacher for abusing students. She wrote a letter to the middle school principal stating that the teacher frequently hit  a particular student, had sprayed Lysol at a student and put her in the hallway after the student had passed gas. The nurse also reported that the teacher frequently called the students vulgar and profane names and she isolated students in a room across the hallway by themselves. Despite the nurse’s report to the principal, the “teacher” continued in the classroom. The ALJ found that it was common knowledge that the teacher was abusing students on a daily basis and that other staff were intimidated by the principal and afraid they would lose their jobs if they continued reporting her abuse.

Regarding the student whose parents requested this hearing, the evidence showed that the “teacher”, frustrated by the student’s slow pace, had pushed him into lockers and down onto the concrete. At the end of the school day when the student was slow to pack up his book bag, the teacher would throw his book bag off his desk and tell him to get on the bus. All of the staff on this particular hall were aware of this teacher’s abusive treatment. The ALJ noted that, perhaps the worst case of abuse, was when the teacher left the student alone in a windowless dark room and strapped to a Rifton chair. This occurred at least three times in the 2006 to 2007 school year. The student’s parents became aware of the abuse of their child when he transitioned to high school and they were called by another parent whose child had been abused. Distrustful of the school district, the parents requested a non school district placement. When the district denied their request, the parents asked for a due process hearing.

 Evidence at the hearing showed that the student regressed while in high school and suffered from PTSD. Based on the evidence of prolonged abuse, the ALJ determined that the student had been denied a free appropriate public education. Moreover, the ALJ determined that the parents had procedural rights to be full informed relevant to their son’s education and that the school district violated those rights. The failure of the school district to tell the parents of the abuse impeded their opportunity to participate in the IEP process. Thus, the failure to fully inform the parent of the abuse was a significant procedural violation that amounted to a denial of a free appropriate public education.

Finally, the ALJ determined that the parents deep distrust of the school district and their fear that a district school program would aggravate the student’s PSTD, “doomed” any attempt to place the student in a district school. Thus, the ALJ ordered the school district to provide five school years of intensive, integrated, home and community-based instruction to compensate him for the five years during which he did not receive an appropriate education. It is noteworthy that, since the student is currently 19, the five years of compensatory services will include services beyond the student’s 21st birthday. For additional background and CNN coverage of this case please see the CNN Schools of Thought website.

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