Massachusetts District Violates 504 by Not Meeting Student’s Assistive Technology (AT) Needs While AT Device is Being Repaired

     A Massachusetts School District violated a student’s 504 Plan by not providing training for staff on how to use an FM sound amplification system and not providing a back-up device for a student with a hearing impairment while the original device was being repaired. In Bellingham (MA) Public Schools, 59 IDLER 142 (OCR 2012) the school district developed a 504 Plan for a student with a hearing impairment. The initial plan was developed during his fourth grade year in elementary school and included: preferential seating; oral directions and instruction should take place so that the speaker is facing the student; gain the student’s visual attention before providing instruction or directions; provide a specified area in which the student can work if requested/needed; check to see that the student understands directions; clarify if necessary; and the use of an FM system for amplification. The school guidance counselor was responsible for communicating the 504 plan to the student’s teachers and she did so by placing a copy in their mail boxes. She did not provide the teachers with any instructions on how to use the FM system. The student used the system through his fourth grade year, but in fifth grade, during the student’s first year of middle school, problems began.

     The middle school teachers did not know how to use the device or how to “sync” it. The principal arranged for the speech language pathologist to teach the principal, the school nurse, and the guidance counselor how to synchronize the system. However, the FM device only worked intermittently and eventually was sent to be repaired. The student went months without the FM device. During that time no one checked with the student to determine how not having the device was affecting him. Moreover, no one made any effort to compensate for the unavailable system.

     As a result, the student’s mother noted that he often came home crying because he had missed the teacher’s instructions, particularly during the confusion at the end of a school day. The mother called his friends to check on his assignments. Frustrated, she filed a complaint with the Office for Civil Rights (OCR) alleging a violation of 504.

     The school district explained to OCR, that since the student had continued to maintain “A” and “B” grades while the FM device was unavailable, they felt he was not affected by the district’s failure to follow his 504 Plan. The Office for Civil Rights, however, agreed with the student’s mother that his maintenance of good grades was due to his own diligence. Thus, the OCR determined the district’s failure to implement the 504 Plan and failure to implement mitigating measures denied the student a free appropriate public education and violated 504. To resolve the complaint the school district agreed to:

  • Review the student’s 504 Plan at the beginning of the following school year;

  • Clearly designate what accommodations are always supposed to be provided and what accommodations are supposed to be provided in the event the FM system is not working;

  • Ensure that the plan includes a provision for checking in with the student about the provision of services if the FM system is not working and provide training on the FM system to all of the student’s sixth grade teachers.

     The lesson for school districts from this case is to develop a back-up plan for what to do if the device breaks. School districts and 504 planning teams should anticipate that AT devices will break and determine, ahead of time, where the device can be repaired and what to do in the interim. Good communication between parents and school staff can help avoid and/or resolve disputes. So, as part of the 504 Plan, involve parents in devising the back-up plan. Finally, school districts should not rely solely on the adequacy of a student’s grades in determining eligibility for services or the impact on the student when required services are not provided.

On 39th Anniversary of 504 OCR Issues “Disability Rights Enforcement Highlights”

     On the 39th Anniversary of the passage of Section 504 of the Rehabilitation Act the Office for Civil Rights (OCR) within the U.S. Department of Education has published Disability Rights Enforcement Highlights. This 21 page publication provides a good overview of OCR’s role in protecting the rights of students with disabilities under Section 504 and Title II of the ADA. It discusses what is a disability, the IDEA and 504, and focuses on the following seven different issue areas: Free appropriate public education, discipline, academic adjustments, accessibiltiy of technology, physical accessibility of programs services & facilities, harassment/bullying, and right to equal treatment.

     The booklet provides specific case examples in each of these issue areas and provides interesting statistical data regarding OCR’s work. For example, in the fiscal years 2009 through 2011, OCR received over 11,700 disability-related complaints. This is more than ever before in a three-year period. Moreover, while OCR also investigates complaints based on discrimination due to race, color, national origin, sex, and age, more than 55% of the complaints OCR received in this three-year period involved disability issues. Looking at some of the specific issue areas: 4,600 cases involved a denial of a free appropriate public education, 750 involved Discipline issues, and 1,000 complaints were based on Disability Harassment. Moreover, the Office for Civil Rights noted that students served under the IDEA were twice as likely to be suspended out of school as their classmates without disabilities.

      Again, the OCR provides specific case examples in each of these issue areas. The booklet provides the following sad case example regarding disability harassment. A high school student with Fragile X Syndrome, Asperger’s Syndrome, Tourette’s Syndrome and ADHD was verbally ridiculed be her fellow students about her disability-related body odor, sprayed with an air freshener by staff in front of her classmates, detained by staff in school who made her take showers before allowing her to attend class, and pulled out of class and sent home before the end of the school day because of her body odor. After OCR’s involvement, the school agreed to provide training to staff about 504 and the student’s disabilities, enroll the student in its “Senior Life Skill”s course, provide her with weekly social work services, and help her find a community job.

     As noted earlier, this publication provides similar specific case examples in each of the issue areas.  I commend this booklet to you. I think it will help clarify the vital role OCR plays in protecting the rights of students with disabilities.

School District Could Not Rely Solely on Good Grades When Determining 504 Eligibility

In Cabarrus County (NC) Schs., 59 IDELR 113 (OCR XI, D.C. (NC) 2012), the Office for Civil Rights (OCR) determined that a North Carolina school district may have mistakenly determined a 14 year-old student with a traumatic brain injury (TBI)  ineligible for services because it only looked at his grades and did not consider information from a variety of sources regarding his educational experience. The student had been hit by a car and as a result suffered severe headaches, memory loss, dizziness, and nausea. He also had problems concentrating and paying attention. His mother provided the school district with a neurologist’s prescription for a 504 Plan. The district, however, determined that the student did not have a disability and was not eligible for a 504 Plan. The school district based its decision solely on the student’s satisfactory grades, standardized test scores, and data from two classroom observations. The OCR determined that, while that information is relevant, the district failed to gather other necessary information from the student’s parents, medical providers, and other teachers.

Consequently, the school district did not consider the impact of his injury on major life activities other than learning. In order to have a disability under Section 504 an individual must have a physical or mental impairment that substantially limits one or more major life activities. Learning is one major life activity, but there are other major life activities. Since it only considered the student’s grades, the district failed to conduct tests on the student’s memory, concentration, or cognitive functioning. These tests are routinely conducted as part of a neuropsychological assessment that can assist in determining the impact of a TBI on educational performance. Moreover, the district never considered whether the student needed psychological or other testing. Thus, the school district did not have the necessary information from a variety of sources to make an accurate determination of the student’s eligibility under Section 504.

To remedy the violation, the school district agreed to re-evaluate the student’s 504 eligibility using the appropriate additional information. The student’s eligibility will be determined by a team of knowledgeable people. If the student is determined eligible, the team will also consider whether any compensatory services are necessary for the time the student has been without support services. The team will also calculate the amount of compensatory services and develop a plan to provide the compensatory services. Finally, the school district will provide training to its staff regarding  the definition of disability under Section 504, evaluating students under Section 504, and Section 504′s placement requirements.

US Department of Education Provides Bullying Prevention Toolkit for Teachers

     On September 28, the United States Department of Education released a free training toolkit for classroom teachers to use to reduce incidents of bullying. The toolkit was developed by the Safe and Supportive Schools Technical Assistance Center. The toolkit has two parts. Module One provides step-by-step instructions for conducting workshops with teachers, educators, and school personnel who work with students. The instructions include a preparation guide, trainer’s outline and focus on:

Understanding what bullying behavior is and is not

Understanding what bullying behavior may look like in the classroom

Exploring ideas for responding to bullying behavior; and

Becoming equipped with specific strategies for addressing and reporting behavior bullying

     Module 2 then provides state-of-the-art information on how to build a supportive classroom climate. According to the Department of Education, “research shows that classrooms that have strong relationships and are respectful of diversity have less bullying.” Participants in Module 2 will:

Consider what a supportive classroom climate looks like and how it can prevent bullying

Examine the role of teacher-to-student and student-to-student relationships in building a supportive classroom climate

Explore strategies for preventing bullying in the classroom, including establishing a culture of respect for differences among students

Consider how a web of positive support among students and other adults across the school community can help prevent bullying.

     The Department of Education concludes its press release by noting that more than 33 percent of students who are bullied report it happening in classrooms and only 55 percent of teachers have received training on bullying policies at their schools. This toolkit will help provide that training.

Justice Department Settles with Pennsylvania School for $715,000 for Excluding a Child with HIV

On September 12, 2012, the U.S. Department of Justice (DOJ) announced that it and the AIDS Law Project of Pennsylvania have reached a settlement with the Milton Hershey School (School) of Hershey, Pa to remedy alleged violations of the Americans with Disabilities Act (ADA). The Milton Hershey School is a private residential school that is open year-round and serves children with demonstrated social and financial needs. In April 2011 Abraham Smith (a pseudonym) applied for admission to the School’s 8th grade class. Abraham is a boy with HIV, which is a physical impairment that substantially limits one or more major life activities, including the operation of Abraham’s immune system. Thus, Abraham has a disability under the ADA. Abraham provided  information to the School that was required in the application process. Included in that information were documents that disclosed that Abraham had HIV.

The School responded by informing his mother through a letter that stated Abraham Smith “will not be considered for possible enrollment” and “[a]fter a review of the information, it has been determined that [Abraham's] documented needs are beyond the scope of the Milton Hershey school programs. Specifically, we are unable to meet his needs in a residential setting.” Abraham’s mother contacted the AIDS Law Project of Pennsylvania (ALPP) which contacted the School to, again, request his admission. In its response to the ALPP,  the School acknowledged that it had not processed Abraham’s application because he has HIV. The ALPP then filed suit.

The School responded in its answer to the lawsuit and an investigation by the DOJ that it believed Abraham posed a potential risk to other students at the School. The DOJ rejected that defense, determining that Abraham or other children with HIV did not pose a direct threat to the health or safety of others and the School violated the ADA by rejecting him for admission.

The Settlement Agreement requires the School to pay $700,000 to Abraham and his mother. It also requires the School to adopt a policy prohibiting discrimination and requiring equal opportunity for students with disabilities, including students with HIV. Additionally, the School must provide training to staff and administrators on the requirements of the ADA. Finally, the School must pay a civil penalty of $15,000 to the United States.

District’s Indifference to Bullying and Harassment of Student with Asperger Syndrome States a 504/ADA Claim

The school district in Preston ex rel. A.P. v. Hilton Cent. Sch. Dist., 112 LRP 36253 (W.D.N.Y. 07/11/12), claimed that because its staff’s failure to investigate the bullying and harassment of a student was not based on the student’s disability, the parents could not pursue a claim for disability harassment in violation of Section 504 and the Americans with Disabilities Act (ADA). The District Court, however, ruled that the reasons why the staff failed to investigate reports of peer harassment against the high school student with Asperger Syndrome had no bearing on the parent’s 504/ADA claims. This is not surprising when we look at the alleged sordid facts of this case. Please be advised that this article includes offensive language allegedly directed at this student with a disability. I feel it is important to include some of this language in order to accurately relate the bullying the student endured.

The student, A.P., was seventeen and attended Hilton Central High School during the 2009-2010 school year. He has Asperger Syndrome. During that school year he was routinely bullied by students in a Basic Electronics Class, who mocked him daily, including calling him “f*&#ing retard”, “a*#hole”, fag*#t, and “bitch”. They also made comments disparaging  his cognitive abilities, such as “F*#* you, you autistic piece of s*#t.” Despite  numerous complaints of this bullying behavior in this class and a meeting with the principal, the school did not take meaningful action to get the harassment to stop. Later in the year the student enrolled in a Construction class. In that class he was called “gay,”(and similar slurs) “retard,” “a#*hole,”bitch,” and “loser” during every class. Students also threw pencils and pieces of wood at him. A.P. complained to the classroom teacher, but no action was taken to discipline his tormentors. Eventually, A.P. found it difficult to attend school and his grades dropped by 40% in two of his classes. His parents alleged that A.P. tried to return to his classes, but the bullying and insults continued to the point that he was unable to function emotionally or academically. The parents filed suit for disability harassment under Section 504 and the ADA.

The school district’s attorneys moved to dismiss the case arguing that the school staff did not act solely “by reason of [A.P.'s] disability.” The district court, however, ruled that “liability for discrimination may be imputed to teachers and administrators for students’ peer-to-peer harassment where those defendants displayed ‘deliberate indifference’ to the underlying harassment, where the harassment is itself motivated by discriminatory animus.” The court noted that A.P.’s parents “allege that the cumulative effect of the harassment was that A.P. discontinued attending school, became profoundly disturbed, and was so emotionally crippled that he was unable to return to complete final exams.” Moreover, the parents stated that they notified district employees on multiple occasions of the ongoing harassment, through telephone conversations, e-mail correspondence and sit down meetings. Those individuals, however, “failed to act, acquiesced in the harassment of A.P. by his peers because of his disability, and that the defendants’ alleged conduct had the effect of denying A.P. access to educational opportunities.” Thus, the court denied the school district’s motion to dismiss and the lawsuit and the case, if not settled, will proceed.

Decisions Regarding Students Using Service Animals at School Must be Made by a Group and Consider Individual Circumstances

Section 504 requires that school districts consider a student’s request to bring a service animal to school individually and, like most issues involving students with disabilities, the decision must be made by a group of persons and based upon information from a variety of sources. In Colorado Springs CO School District #11, 56 IDELR 52 (OCR 2010) the Office for Civil Rights determined that the school district’s failure to formally consider whether a service animal was an appropriate accommodation for a high school student with spastic quadriplegia violated Section 504. In this case the student, a freshman in high school, had been accompanied by his dog at school since second grade. In 2009 the school principal banned the dog from the high school because a teacher had significant allergic reactions to the dog’s presence in school. The student’s mother requested an IEP meeting to consider adding the dog to her son’s IEP. While there was not an IEP meeting, there was  a meeting of several school staff with the parent. At the meeting the Special Education Facilitator informed the mother that the presence of the dog was not an academic matter and could not be included in her son’s IEP. The mother then filed a complaint with the Office for Civil Rights (OCR).

The Office for Civil Rights determined that the district violated Section 504 because it did not consider the student’s individual needs when it unilaterally decided not to include the dog on the student’s IEP. The school district was mistaken in its view that service dogs are outside the scope of the IEP process. In order to resolve the complaint, the school district agreed to convene a multidisciplinary team to make an individual determination whether the student’s use of the dog was necessary for him to receive a free appropriate public education. Moreover, the district was required to provide training to district staff that service dogs may be included on a student’s IEP or 504 Plan if the multidisciplinary so determines. Additionally, the training must address that multidisciplinary teams will consider information from a variety of sources, including the student’s need for a service dog.

The Office for Civil Rights made a similar determination in Trinity Area (PA) Sch Dist., 56 IDELR 143 (OCR 2010) and pointed out that holding the meeting was not sufficient if the team discussion focused only on the parent’s ability to prove the student’s need for a service animal. In that case the IEP team met but it did not give appropriate consideration to the student’s need for the animal. The student’s parents were the only members of the IEP team who were knowledgable about the use of service animals  and the team did not discuss how the dog’s presence might affect the student’s behaviors. Instead, the team focused solely on the effect the dog might have on students and staff with allergies. To be sure, OCR noted, the effect of the dog’s presence on staff and students should be considered, but the team needed to consider the particular student’s needs as well. In another service dog case Bakersfield (CA) City Sch. Dist., 50 IDELR 169 (OCR 2008), OCR discussed that school districts may offer a student alternatives to the use of a service animal, but those alternatives must address all of the functions the service animal performs for the student. Finally, and importantly, all decisions  regarding whether to allow a service animal on a school campus must be made on a case-by-case basis, and must be specific to the student and his or her service animal.

Thus, as is generally the case, decisions regarding services for students with disabilities are made by a multidisciplinary team, on a case-by-case basis, and specific to the student and the student’s individual needs.

District’s Safety Concerns Do Not Justify Shortened School Day

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

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

 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.

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