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.

School breaks, including summer, do not extend the time frame for conducting initial evaluations

I frequently hear from parents that they have been told by school staff that their child could not be evaluated for special education eligibility because school was out for the summer and staff were not available. Melody Musgrove, the Director of the Office of Special Education Programs (OSEP), advised the Director of Special Education in North Carolina that school breaks do not lengthen the time frame for conducting initial evaluations [Letter to Reyes, 59 IDELR 49 (OSEP April 2012)].

The IDEA regulations at 34 CFR 301(c)(1) require that an initial evaluation be conducted within 60 calendar days after receiving parental consent for the evaluation.  States may establish their own time frame (in this case North Carolina had established a 90 day time frame) but the state must complete the evaluation within that time frame. There are some other exceptions to meeting the time frame, for example if the parents do not make the child available for the evaluation (see 34 CFR 300. 301(d)) Ms. Musgrove acknowledged :

” that conducting evaluation activities during extended breaks, such as the typical school’s summer vacation, can be challenging for school districts, particularly if fewer staff members are available. Nevertheless, the IDEA contemplates that the initial evaluation of a child suspected of having a disability not be unreasonably delayed so that eligible children with disabilities are not denied a FAPE.”

Thus, it is clear that initial evaluations must be completed with the IDEA 60 day timeline (unless the state has established another timeline) and that timeline is not extended during school breaks, including summer months.

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