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.

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.

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.

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