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.

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.

Florida Department of Education Required to Pay for Maintaining Specific Unique Assistive Technology Needed for Student to Take State Exams

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.

OCR Rules School District Violated 504 by Isolating Special Needs Students in a Portable Classroom

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.

President Obama issues a Proclamation Celebrating the Anniversary of the ADA

 

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

 

A PROCLAMATION

 

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.

 

BARACK OBAMA

 

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High School Student’s Lack of Effort/Negative Attitude Toward School May Signal Need to Reevaluate and Update 504 Plan

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. 

 

Student with OCD and Tourette Syndrome Making Good Grades May Still Be Eligible for a 504 Plan

     I am often asked whether a student who has disabilities but is making good grades can be eligible for services under Section 504. In Miller (GA) School District 56 IDELR 53 (OCR 2010) the Office for Civil Rights decided that the fact a student  with  Tourette syndrome and obsessive compulsive disorder (OCD) achieved good grades in honors classes did not mean he was ineligible for a Section 504 plan.

     The student’s parent contacted the Miller County School District’s Special Education Coordinator in the fall of the student’s 9th grade year because he was being sent to the office for his behavior and was missing instructional time. The Coordinator told the parent that the student did not qualify for a 504 Plan because he makes good grades. The Coordinator made the decision without an evaluation team and did not advise the parent of her procedural rights. The next September, in  the student’s 10th Grade year at Miller County High School, the parent again contacted the Coordinator, saying she had done some research and understood that making good grades was not a reason to be ineligible for a Section 504 Plan. The parent also tried to provide doctor’s diagnoses that her son had Tourette syndrome and OCD, but the coordinator did not accept the documentation and said he would get back to her.

     In October, in order to obtain informal interventions for her son, the parent gave copies of her son’s diagnoses to his teachers along with information on how to handle his disabilities. In November the parent again contacted the Coordinator and asked for a behavior plan for the student after he had gotten into some trouble. The Coordinator said he would speak with the student’s teachers to find out what happened. Not hearing anything, the parent again contacted the Coordinator who told her that if her son was making good grades but having problems he did not necessarily qualify for a Section 504 Plan. Finally, the parent filed a complaint with OCR.

     The Office for Civil Rights found that  the school district had violated Section 504. Based on the parent’s verbal requests the district had sufficient reason to suspect the student might be a student with a disability. In rejecting the parent’s referral for 504 eligibility, the district improperly considered only the student’s grades. The OCR findings stated:

“While learning is a frequently impacted major life activity for students, the District should be cognizant that, in the elementary and secondary context, consideration of a student’s success as reflected by good grades, may not, by itself be sufficient to determine whether that student is substantially limited as to learning. Potentially relevant when a district is considering whether learning is substantially limited are factors such as a student’s ability to interact with others, a student’s ability to control his or her behavior, a student’s ability to attend school, and a student’s ability to participate in the educational program.”

     In order to resolve OCR’s finding that it violated Section 504, the district agreed to convene a meeting with individuals knowledgable about the student to determine if he is eligible for services under a 504 Plan. The district also agreed to revise its 504 procedures. In particular the district agreed to ensure that 504 eligibility committees will consider a broad range of major life activities and not only learning. The two key mistakes the school district made were (1) allowing the Coordinator to make a unilateral decision regarding the student’s 504 eligibility rather than convening a team of knowledgable individuals and (2) only considering the student’s grades rather than a variety of factors.