Decisions Regarding Students Using Service Animals at School Must be Made by a Group and Consider Individual Circumstances
Posted on July 11, 2012 by randychapman
Posted on June 29, 2012 by randychapman
In Castaic (Ca) Union Elementary Sch. Dist., 58 IDELR 234 (OCR IX, San Francisco (Ca) 2011), the Office for Civil Rights (OCR) determined that the school district denied students with mobility impairments a free appropriate public education when it shortened their school days and reduced their instructional time to ensure student safety. A group of elementary school students with mobility impairments and who used buses with wheelchair lifts filed a complaint with OCR because their school day was shortened. For most elementary school students in the district the school day lasted six hours and 31 minutes. But students who used buses with wheelchair lifts were required to leave their last class of the day 36 minutes earlier. After its investigation, OCR noted that this resulted in these students receiving 180 less instructional minutes per week than students who did not use buses with wheel chair lifts. The school district argued that having the accessible and regular buses run on the same schedule was too chaotic and potentially dangerous.
OCR agreed that safety may have been a relevant consideration, but it was not a valid reason for denying students with mobility impairments an equal educational opportunity. To be sure, if a shortened day is medically and educationally necessary, it may be appropriate for an individual student. But a shortened day for an entire category of students (such as these students who used accessible buses), is not an individualized decision. The school district agreed to develop a procedure to ensure that students with mobility impairments who received transportation services would receive equal instruction time.
Charter School Violated 504 by Requiring Student with Diabetes to Have a Family Member Attend Afterschool Softball Game
Posted on June 5, 2012 by randychapman
In Academy of Waterford (MI) 112 LRP 15747 (OCR 2011) the staff at Academy of Waterford, a public charter school in Michigan, violated 504 when it told the parent of 10 year-year-old with diabetes that he must be accompanied by family members if he wished to participate in an afterschool softball game. The charter school staff were concerned that there were not staff available to supervise the student’s administration of insulin. Additionally, the charter school participated in “Camp Exposure,” an out-of-town educational field trip. The “Camp Exposure” program specifically barred students with diabetes from participating in the camp unless the students could take care of their own injections without supervision. Apparently, “Camp Exposure” was not concerned with exposing students with diabetes to its program. The camp counselor explained that “diabetes” is a “red flag” to follow-up with students because the program’s counselors were not trained. Technically, the camp was separate from the charter school, but, by coincidence, it was managed by the school’s charter management company.
The Office for Civil Rights (OCR) investigated the parent’s complaint and determined the charter school had denied the student the equal opportunity to participate in afterschool and extracurricular activities that it offered students without disabilities. Unlike this student’s family, the parents of students without disabilities were not required to attend afterschool activities with their children. Additionally, the public charter school violated 504 by participating in Camp Exposure, a program which denies students with certain disabilities the opportunity to participate in the camp’s program. Camp Exposure had a policy of denying participation to students with diabetes who could not administer their own insulin injections. Academy of Waterford, the charter school program, had an arrangement with the charter management company’s camp. Since the camp categorically excluded students with disabilities requiring medical services, the Academy is violating 504 by having a contractual or other arrangement with a company that discriminates against students with disabilities.
Homebound Student May Use 504 and the ADA to Challenge School District’s Policy Excluding Him from the Senior Graduation Party and Dance
Posted on May 21, 2012 by randychapman
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.
Posted on May 14, 2012 by randychapman
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.
Florida Department of Education Required to Pay for Maintaining Specific Unique Assistive Technology Needed for Student to Take State Exams
Posted on February 23, 2012 by randychapman
In Seminole County (FL) School District, 58 IDELR 113 (OCR 2011), the parents of a 5th grade student with cerebral palsy and a visual impairment complained to the Office for Civil Rights (OCR) that the Florida Department of Education failed to provide their daughter with a screen- reading device as an accommodation during a state exam.
The parents had requested the screen-reader as an accommodation for the Florida Comprehensive Assessment Test (FCAT) state exam, but had been denied by the Florida Department of Education. The Department had offered her alternative accommodations such as an auditory exam format, human reader, or large print. In its investigation OCR noted that the student was enrolled in regular education classes, but due to physical disabilities could not communicate verbally or through writing in a conventional manner. The screen-reader the student used was a Kurzweil 3000 with specialized soft ware. The Kurzweil 3000 has an auditory output, a text to speech function, and highlighting capability. It highlights each reading section word by word so that the student can focus on reading one word at a time rather than the whole page. She needed the screen-reader and was accustomed to using the screen-reader in her classes. Moreover, the screen reader was specifically listed on her IEP for her use in class and to be used for the FCAT exam.
OCR rejected the alternative accommodations offered by the Department of Education because they did not meet her unique needs. Each of the offered accommodations would have deprived her of the word-by-word highlighting she was accustomed to with the reader and the student would have to look at lengthy questions that would challenge her visual disability. Finally, OCR noted that under its own policies the Department should have approved the reader. According to the Florida Department’s policy, requests for unique accommodations were approved based on two criteria: (1) whether the accommodation was regularly provided to the student in the classroom; and (2) whether it was documented on the student’s IEP.
OCR concluded that the failure to provide the screen-reader and more accessible testing denied the student a free appropriate public education in violation of 504 and Title II of the ADA. To remedy the violation, the Florida Department of Education agreed to provide a computer based test version of the FCAT with a built-in screen-reader for students who meet the requirements for having the screen reader approved as an accommodation.
Posted on November 3, 2011 by randychapman
The Office for Civil Rights found that a Tennessee school district violated Section 504 when it placed 14 middle schoolers with severe disabilities in a self-contained classroom that was housed in two portable buildings outside the main school building. Marion County (TN) School District 11 LRP 59226 (OCR May 2011). The school district had created the Child Development Class (CDC) to serve students whose disabilities required intensive educational interventions and who the school thought required direct supervision in order to benefit from participation in the general education program. An individual complained to OCR. The complainant was not concerned that the classroom was self-contained, but was very concerned about placing the students in portable buildings outside the main building on the middle school campus. She felt that, as a result of the separate and segregated setting, the students were viewed differently and were ridiculed because they were taught in separate portable buildings. The complainant said that some non-disabled students referred to the CDC program as the “dumb house”. One CDC student, who wanted to fit in with other students, was allegedly asked to “dance” by students without disabilities and was laughed at when she did.
Accepting the complaint for investigation, the Office for Civil Rights noted at the outset that Section 504 prohibits school districts from providing students with disabilities less opportunities to participate than their typical peers and from denying them comparable facilities. As a result of its investigation, OCR determined that the CDC Program’s location isolated the students. According to OCR, “They use a separate entrance, use separate restrooms, and do not have the equal interactive opportunities as their non-disabled peers in places such as the hallways and bathrooms.” The OCR also noted that the CDC classroom was not a comparable facility, because unlike the rest of the student population, CDC students had to walk outside, potentially in bad weather, to participate in main building activities. Thus, isolating these students with disabilities in separate portable buildings violated Section 504. To remedy the violation, the school district agreed to move the CDC program into two classrooms in the main middle school building and to locate the classrooms adjacent to restrooms.
Posted on July 26, 2011 by randychapman
Today is the twenty first annivesary of the passage of the Americans with Disabilities Act. President Obama issued the following proclamation celebrating that momentous event.
ANNIVERSARY OF THE AMERICANS WITH DISABILITIES ACT, 2011
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BY THE PRESIDENT OF THE UNITED STATES OF AMERICA
Generations of Americans with disabilities have improved our country in countless ways. Refusing to accept the world as it was, they have torn down the barriers that prohibited them from fully realizing the American dream. Their tireless efforts led to the enactment of the Americans with Disabilities Act (ADA), one of the most comprehensive pieces of civil rights legislation in our Nation’s history. On this day, we celebrate the 21st anniversary of the ADA and the progress we have made, and we reaffirm our commitment to ensure equal opportunity for all Americans.
Each day, people living with disabilities make immeasurable contributions to the diversity and vitality of our communities. Nearly one in five Americans lives with a disability. They are our family members and friends, neighbors and colleagues, and business and civic leaders. Since the passing of the ADA, persons with disabilities are leading fuller lives in neighborhoods that are more accessible and have greater access to new technologies. In our classrooms, young people with disabilities now enjoy the same educational opportunities as their peers and are gaining the tools necessary to reach their greatest potential.
Despite these advancements, there is more work to be done, and my Administration remains committed to ending all forms of discrimination and upholding the rights of Americans with disabilities. The Department of Justice continues to strengthen enforcement of the ADA by ensuring that persons with disabilities have access to community-based services that allow them to lead independent lives in the communities of their choosing. Under provisions of the Affordable Care Act, insurers will no longer be able to engage in the discriminatory practice of denying coverage based on pre-existing conditions, and Americans with disabilities will have greater control over their health care choices. And last year, I signed an Executive Order establishing the Federal Government as a model employer for individuals with disabilities, placing a special focus on recruitment and retention of public servants with disabilities across Federal agencies.
Through the ADA, America was the first country in the world to comprehensively declare equality for citizens with disabilities. To continue promoting these principles, we have joined in signing the Convention on the Rights of Persons with Disabilities. At its core, this Convention promotes equality.
It seeks to ensure that persons with disabilities enjoy the same rights and opportunities as all people, and are able to lead their lives as do other individuals.
Eventual ratification of this Convention would represent another important step in our forty-plus years of protecting disability rights. It would offer us a platform to encourage other countries to join and implement the Convention. Broad implementation would mean greater protections and benefits abroad for millions of Americans with disabilities, including our veterans, who travel, conduct business, study, reside, or retire overseas. In encouraging other countries to join and implement the Convention, we also could help level the playing field to the benefit of American companies, who already meet high standards under United States domestic law. Improved disabilities standards abroad would also afford American businesses increased opportunities to export innovative products and technologies, stimulating job creation at home.
Equal access, equal opportunity, and the freedom to make of our lives what we will are principles upon which our Nation was founded, and they continue to guide our efforts to perfect our Union. Together, we can ensure our country is not deprived of the full talents and contributions of the approximately 54 million Americans living with disabilities, and we will move forward with the work of providing pathways to opportunity to all of our people.
NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim Tuesday, July 26, 2011, the Anniversary of the Americans with Disabilities Act. I encourage Americans across our Nation to celebrate the 21st anniversary of this civil rights law and the many contributions of individuals with disabilities.
IN WITNESS WHEREOF, I have hereunto set my hand this twenty-fifth day of July, in the year of our Lord two thousand eleven, and of the Independence of the United States of America the two hundred and thirty-sixth.
High School Student’s Lack of Effort/Negative Attitude Toward School May Signal Need to Reevaluate and Update 504 Plan
Posted on June 30, 2011 by randychapman
In Ms. H v. Montgomery County Board of Education, 56 IDELR 268 (May 12,2011) a U.S. District Court in Alabama ruled that the mother of a high school girl with ADHD had stated a claim that her daughter’s frequent tardies, failure to complete work, and refusal to participate in class should have signaled the school district to reevaluate her 504 Plan. The school district had argued that the mother’s 504 case should be dismissed because the daughter’s academic struggles were due to her poor attitude and participation in school, not her disability. The court noted that the student had a negative attitude and put little effort into her classes.
But the court also noted that the school district had not conducted any new tests or assessments of the student between 2001 and 2009. Moreover, her 504 Plans developed during her freshman, sophomore, and junior years were nearly identical. The judge stated:
“For example, [the student's] plans were barely altered from the beginning of ninth grade through the end of eleventh grade, despite the fact that [the student] had failed classes and graduation examinations during that period.”
While, the Judge acknowledged that the girl’s lack of success may have been caused by her own actions, the fact that the school district had not reassessed her or modified her 504 Plan for years, supported denying the district’s motion to dismiss the mother’s claim.
The bottom line is the school district should not just continue the same 504 Plan and level of accommodations, without review, in the face of a student’s struggles in school. The student’s poor participation is a warning sign that, perhaps, a change is needed in the 504 Plan.
Posted on April 6, 2011 by randychapman