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SES Fall 2013 - All Things Considered: Serving Students with Medical Needs


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SES Fall 2013 - All Things Considered: Serving Students with Medical Needs

  1. 1. 1 All Things Considered Serving Students with Medical Needs
  2. 2. 2 What We’ll Cover . . .  We’ve selected three important and frequently litigated topics:  Placing and Serving Students with Medical Needs in the LRE  Home/Hospital Instruction  Serving Students with Allergies or Multiple Chemical Sensitivities  For each topic, we’ll discuss:  Law  Cases  Takeaways (i.e., practical pointers)
  3. 3. 3 I. Placing and Serving Students with Medical Needs in the Least Restrictive Environment
  4. 4. 4 I. Placement and LRE –  Overview of LRE Rules  To maximum extent appropriate, children with disabilities are educated with children who are not disabled  Removal of children with disabilities from regular educational environment occurs only when:  Nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily (34 C.F.R. § 300.114; Ed. Code, § 56040.1)
  5. 5. 5 I. Placement and LRE –  Points to Remember  Even if not fully included, child must be educated with nondisabled peers to maximum extent appropriate  Placement not based on category of disability; LRE varies depending on unique needs of child  Supplementary services to be provided in conjunction with regular class placement  No removal from general education classroom UNLESS, even with supplementary aids and services, Student cannot be educated satisfactorily
  6. 6. 6 I. Placement and LRE –  LRE and Medically Fragile Students  Challenging for IEP teams  Case law: LRE analysis must take into account health and safety of Student  Another factor: If Student’s presence poses health risk to other students  Location for administration of medical procedures also must be taken into account
  7. 7. 7 I. Placement and LRE –  Student v. San Ramon Valley USD (OAH 2010)  16-year-old with compromised immunity, respiratory issues and susceptibility to pneumonia  Depended on others for all daily activities  District proposed SDC placement with various services (health/nursing, OT, PT, APE)  Parents objected, claiming Lack of appropriate facilities put Student’s health at risk Student couldn’t interact with verbal, ambulatory SDC peers
  8. 8. 8 I. Placement and LRE –  Student v. San Ramon Valley USD (OAH 2010)  ALJ denied reimbursement; SDC could provide FAPE in LRE  Why? District could educate Student and provide appropriate attention to health/safety needs Trained personnel, safe toileting facilities, measures to prevent infection Opportunity for social activities with other Students of same age, interests (Student v. San Ramon Valley USD (OAH 2010) 56 IDELR 26)
  9. 9. 9 I. Placement and LRE – The Cases But, as the next case illustrates, sometimes a school-based site can actually be more restrictive than a student’s home . . .
  10. 10. 10 I. Placement and LRE –  Southern York Co. School Dist. (SEA PA 2010)  14-year-old with rare genetic disease that caused severe flu-like systems every few weeks  Lengthy absences and missed schoolwork  Parents requested District provide webcam so Student could view classroom from home  District offered webcam in conference room at school
  11. 11. 11 I. Placement and LRE –  Southern York Co. School Dist. (SEA PA 2010)  Parents prevailed; home, not school-based site, was Student’s LRE  Why? School conference room placement ignored Student’s unavailability during “recovery phase” of illness when he had to remain at home District could use available technology to enable Student to interact with classmates from home (Southern York County School Dist. (SEA PA 2010) 55 IDELR 242)
  12. 12. 12 I. Placement and LRE – The Cases And other times, especially when contact with other children can pose a health risk, classroom facilities can be a factor in determining LRE . . .
  13. 13. 13 I. Placement and LRE –  Dept. of Educ., State of Hawaii (SEA HI 2007)  5-year-old with tracheostomy, gastronomy tube and reactive airway disease  District proposed gen ed kindergarten with 370 minutes per week of nursing services  Parents believed kindergarten classroom posed serious health risk Too many students (16-24) Lack of air conditioning Lack of immediate availability of nurse
  14. 14. 14 I. Placement and LRE –  Dept. of Educ., State of Hawaii (SEA HI 2007)  Parents received reimbursement for private school kindergarten that provided 1:1 nursing care  Why? 370 minutes of nursing care insufficient for child who had required 24-hour-a-day care Crowded classroom could compromise Student’s immunity when other children are ill (Department of Education, State of Hawaii (SEA HI 2007) 47 IDELR 148)
  15. 15. 15 I. Placement and LRE – The Cases Remember that courts and ALJs look not only at the adequacy of medical services, but also at the location at which they are administered . . .
  16. 16. 16 I. Placement and LRE –  Wyomissing Area School Dist. (SEA PA 2007)  5th-grader with tracheostomy was wheelchair- dependent and required ventilator  Private nurse provided tracheal suctioning in classroom  District’s new IEP required nurse to remove Student from classroom for procedure  Parents claimed change in location denied FAPE in LRE
  17. 17. 17 I. Placement and LRE –  Wyomissing Area School Dist. (SEA PA 2007)  Removing Student from classroom for tracheal suctioning violated LRE  Why? Each removal would cost Student up to six minutes of classroom time (loss of educational benefit) Able to pay attention while procedure was taking place No complaints that nursing services provided in classroom disrupted other students (Wyomissing Area School Dist. (SEA PA 2007) 109 LRP 21661)
  18. 18. 18 I. Placement and LRE – Takeaways Document Successes and Failures  Remember: IEP must state why full participation in gen ed setting isn’t possible  If student with medical needs requires more restrictive placement, document past services provided and their successes or lack thereof  Obtain Information/Encourage Communication  Urge Parents to share relevant information from physician and allow physician to communicate with school nurse  Establish relationship with pediatrician
  19. 19. 19 I. Placement and LRE – Takeaways Know What to Do If Parents Refuse to Provide Medical Records  Document efforts  Ultimately, may need to file for DP to conduct own assessment  Inform and Educate Parents  Understand hesitancy about classroom setting  Discuss all aspects of services  Let Parents view classroom, meet nurse and staff
  20. 20. 20 I. Placement and LRE – Takeaways Close Monitoring Is Essential  Foundation for IEP team’s placement review  Circumstances can change quickly (e.g., new medication) requiring frequent LRE review  Transportation Requires LRE Analysis Too  Continuum applies (ranging from general education bus without accommodations to separate vehicle with no contact with peers)
  21. 21. 21 II. Home/Hospital Instruction
  22. 22. 22 II. Home/Hospital –  Rules different for general education and special education students  General Education Students  “Temporary disability” makes school attendance impossible or inadvisable  Instruction must be provided by teachers with valid California teaching credentials  Five hours per week  Districts responsible for instruction to nonresidents placed in hospitals located within District (Ed. Code,§48206.3; Ed. Code,§48207; Ed. Code, §44865)
  23. 23. 23 II. Home/Hospital –  Special Education Students  Eligibility Decision must be made by the Student’s IEP team if it believes such placement is necessary and it is LRE in which student can receive instruction or services No minimum amount of time that Student must be out of school before starting home and hospital instruction One of the most restrictive placements on continuum (Ed. Code, § 48206.3, Cal. Code Regs., tit.5,§3051.4(a))
  24. 24. 24 II. Home/Hospital –  Special Education Students  Requirement for Medical Report IEP team must have medical report from Student’s physician (or treating psychologist) stating diagnosed condition and certifying that condition prevents Student from attending a less restrictive placement Report also must include a projected calendar date for the student’s return to school (Ed. Code, §56361, Cal. Code Regs., tit.5,§3051.4(d))
  25. 25. 25 II. Home/Hospital –  Special Education Students  Review of Other Available Information Receipt of home instruction isn’t automatic on receipt of doctor’s note IEP team must review all available information prior to placement decision Rule applies even if Student’s condition requiring home instruction is temporary or short-term (Cal. Code Regs., tit.5,§3051.4(a),(c))
  26. 26. 26 II. Home/Hospital –  Special Education Students  Nature and Delivery of Services Number of instructional hours based on Student’s unique needs (no minimum or maximum) May be provided by gen ed teacher, special ed teacher, DIS specialist, as appropriate May be delivered individually, in small groups or by teleclass Team must meet to reconsider IEP prior to projected date for Student’s return to school (Cal. Code Regs., tit.5, § 3051.4(d),(e))
  27. 27. 27 II. Home/Hospital –  Special Education Students  Teacher Consultation Requirements Home instruction teacher must consult with prior school/teacher to determine: coursework to be covered; books/materials to be used; grading responsibility For Student in grades 7-12, consultation with guidance counselor is required concerning: semester course credits and diploma issues (Cal. Code Regs., tit.5, § 3051.4(d))
  28. 28. 28 II. Home/Hospital –  Student v. Los Angeles USD (OAH 2010)  Parent failed to provide District with medical referral for continuation of home instruction  Also disputed District’s selection of instructor  ALJ: Parent’s failure to provide medical referral excused District from any home instruction obligation Even if District had been required to provide home instruction, choice of teachers within its discretion (Student v. Los Angeles Unified School Dist. (OAH 2010) No. 2010010587)
  29. 29. 29 II. Home/Hospital –  San Jacinto USD v. Student (OAH 2008)  Parents wanted continuation of home instruction for Student with cerebral palsy and seizures  Safety concerns prompted objection to proposed gen ed placement  ALJ: Student could make progress in District’s placement; home instruction too restrictive No evidence that health would be jeopardized by attending school with proper accommodations (San Jacinto Unified School Dist. v. Student (OAH 2008) No. 2008020225)
  30. 30. 30 II. Home/Hospital – The Cases Sometimes the issue isn’t whether a student requires home instruction but where that instruction should take place, as the next case reveals. . .
  31. 31. 31 II. Home/Hospital –  Los Angeles USD v. Student (OAH 2011)  District previously provided home instruction to Student at Mother’s home outside boundaries  Principal changed policy; services required at location within District; didn’t call IEP meeting  ALJ: District obligated to continue home instruction at Mother’s home; couldn’t unilaterally stop services Other locations offered were not suitable given Student’s suppressed immune system (Los Angeles Unified School Dist. v. Student (OAH 2011) No. 2011020179)
  32. 32. 32 II. Home/Hospital – The Cases Determining the appropriate nature and extent of services in anticipation of the student’s return to school can be tricky. . .
  33. 33. 33 II. Home/Hospital –  Student v. Poway USD (OAH 2009)  District’s plan for Student returning from home instruction called for five-hour school day  Parent objected, citing Student’s fragile health  ALJ: Credible medical testimony that Student required shortened school day due to medication side effects Parent had no choice but to request return to home instruction as opposed to risks of lengthy school day (Student v. Poway Unified School Dist. (OAH 2009) No. 200902024)
  34. 34. 34 II. Home/Hospital – Takeaways  Seek All Available Information Before Making Placement Decision  Get “Authorization to Release and Exchange Information” from Parent in order to obtain/review/discuss medical information  Collect recent assessment data, work sample, progress reports, teacher observations  Consider whether to conduct own assessment
  35. 35. 35 II. Home/Hospital – Takeaways  Look Carefully at LRE Issues  Ask whether Student could continue at school with additional accommodations and supports  Consider whether Student’s condition permits providing some services at school, some at home  If IEP team determines Student can be educated in less restrictive setting than home/hospital, offer most appropriate placement even if Parent refuses to consent
  36. 36. 36 II. Home/Hospital – Takeaways  Make Sure IEP Contains All Necessary Information and Addresses Student’s Needs  Detail the type, timing and frequency of in-home services, projected return date, placement upon return  Address how goals will be implemented while Student is receiving home instruction  Document how and why any variations made in level of services or supports
  37. 37. 37 II. Home/Hospital – Takeaways  Monitor Progress/Current Performance Levels  Act quickly to make necessary modifications  Facilitate Smooth Transition Back to School  Decide whether return will be gradual or immediate based on Student’s condition  Don’t Forget About Nonacademic Activities  Participation in extracurricular activities may require medical release
  38. 38. 38 III. Students with Allergies or Multiple Chemical Sensitivities
  39. 39. 39 III. Allergies and MCS –  Eligibility for Services  Many students with allergies/MCS will meet Section 504’s eligibility standard Physical or mental impairment; that Substantially limits a major life activity  If found eligible, Student entitled to protection from discrimination, procedural safeguards; also may be entitled to services under Section 504 plan (29 U.S.C.§705(20); 34 C.F.R.§104.4; 34 C.F.R.§104.33-104.36)
  40. 40. 40 III. Allergies and MCS –  Eligibility for Services  “Physical or mental impairment” “Physiological disorder or condition” affecting expansive list of body systems (e.g., sense organs, respiratory, digestive system)  “Major life activities” Nonexclusive list extending beyond “learning” (e.g., seeing, hearing, eating, speaking, breathing); also includes operation of major bodily functions (42 U.S.C.§1201, 1203); 34 C.F.R.§104.3(j)(2))
  41. 41. 41 III. Allergies and MCS –  Eligibility for Services  “Substantial limitation” Not defined, but ADAAA calls for interpretation in favor of broad coverage  Episodic impairments (e.g., seasonal allergies) Substantially limiting at some times, not others Considered a disability if “would substantially limit one or more major life activities when active” (29 U.S.C.§705; 42 U.S.C.§12101)
  42. 42. 42 III. Allergies and MCS –  Eligibility for Services  Mitigating measures In making eligibility determinations, Districts may not consider “ameliorative effects” of: Medication Hearing aids and cochlear implants Assistive technology Reasonable accommodations Behavioral/adaptive neurological modifications (29 U.S.C.§705; 42 U.S.C.§12101)
  43. 43. 43 III. Allergies and MCS –  Individualized Health Care Plans  Don’t confuse with Section 504 plans, although some students have both  IHCPs outline health management protocol, not educational supports/services  Typical plan: Identifies medical condition/warning signs Outlines specific interventions/emergency response Provides notification procedures
  44. 44. 44 III. Allergies and MCS –  Individualized Health Care Plans  IHCPs are mitigating measures!! They can’t be considered when determining if Student has a disability  Common mistake: Regular use of IHCPs in lieu of making formal Section 504 evaluations  Many students’ allergies/MCS would substantially limit major life activity but for IHCP health management procedures
  45. 45. 45 III. Allergies and MCS –  Eligibility  Torrington (CT) Bd. of Educ. (OCR 2012) Student with shellfish allergy placed on IHCP No 504 evaluation until Parent made request a year later, despite knowledge of potential to threaten life OCR required District to identify all students with allergies on IHCPs and determine their 504 eligibility  Clarksville (TN) Sch. Dist. (OCR 2012) District improperly required allergies impact learning OCR identified 235 students that required evaluation
  46. 46. 46 III. Allergies and MCS –  Services and Accommodations  Smith v. Tangipahoa School Bd. (E.D. La. 2006) District reasonably accommodated Student’s allergy to horses (notification, medication reminders) Unreasonable to require ban on horses near campus  Zandi v. Ft. Wayne Cmty. Schools (N.D. Ind. 2012) District did not have to adopt formal “no spray” policy for student with fragrance sensitivity Reminder announcements, allowing Student to leave class early were sufficient accommodations
  47. 47. 47 III. Allergies and MCS –  Services and Accommodations  P.K. v. Middleton School Dist. (D.N.H. 2012) District made continuous efforts to prevent Student’s exposure to latex products (pencil erasers, balloons) Not required to provide “absolutely latex-free facility”  Mystic Valley Reg. Charter School (SEA MA 2004) Given severe nature of Student’s peanut allergy, reasonable to require District to provide classroom setting totally safe from exposure Not an “undue burden” on school personnel to do so
  48. 48. 48 III. Allergies and MCS –  Harassment and Discrimination  Catoosa County (GA) School Dist. (OCR 2011) District’s failure to prevent peanuts from being sold in vending machines created hostile environment for Student equivalent to harassment  Greenport (NY) Union School Dist. (OCR 2008) Classmates engaged in teasing and name-calling of two Students with peanut allergies District timely investigated incidents, disciplined those involved and provided instruction on why behavior was inappropriate
  49. 49. 49 III. Allergies and MCS –  Vague or Poorly Defined Accommodations  Plumas (CA) Unified School Dist. (OCR 2010) Dispute over Section 504 plan language: “No nuts in lunchroom” OCR sided with District’s interpretation that no nuts would be used in decorations, activities – not an absolute ban
  50. 50. 50 III. Allergies and MCS –  Vague or Poorly Defined Accommodations  Porta (IL) Cmty. Unit School Dist. (OCR 2007) Section 504 plan: “Equivalent snack” required for Student with popcorn allergy Parent claimed two Jolly Ranchers didn’t equal large bag of popcorn Plan silent as to comparability of snacks; no violation
  51. 51. 51 III. Allergies and MCS –  Other Liability Cases  Begley v. City of New York (N.Y. Sup. Ct. 2010) Student died from exposure to blueberries Negligent supervision claim could go to trial; question of whether nurse, staff responded appropriately  Liebau v. Romeo Cmty. School (Mich. Ct. App. 2013) School-wide nut ban doesn’t deprive parents or students of constitutional liberty or property interest Checking backpacks for nuts is not “unreasonable search and seizure” under 4th Amendment
  52. 52. 52 III. Allergies and MCS – Takeaways  Be Proactive!  Take steps to identify students with allergies/MCS (e.g., send health questionnaires)  Know When to Refer  Recognize and watch for health conditions that are interfering with classroom performance/attendance  Ask the Right Questions  Review medical information/diagnoses carefully  Make sure allergist/physician didn’t merely rely on parent’s information
  53. 53. 53 III. Allergies and MCS – Takeaways  “Learning” Is Not the Only Major Life Activity  Allergies/MCS can substantially limit many other activities (e.g., breathing) warranting Section 504 eligibility  Be methodical and document process for determining whether or not student is eligible  Review IHCPs and Determine Whether Student Should Be Evaluated  Look first to students with past history of severe reactions
  54. 54. 54 III. Allergies and MCS – Takeaways  Consider Possible Alternatives to Requested Accommodations  Proposed alternative must be equally as effective  Provide Clear Directives  Precise and consistent language in 504 plans is essential  Make Sure Responsible Staff Is Aware of Plan  And provide training where necessary
  55. 55. 55 III. Allergies and MCS – Takeaways  Ensure Consistent Plan Implementation  E.g., “peanut-free zone” means “peanut-free zone” all of the time, every day  Don’t Forget FERPA  May share info with school officials who have “legitimate educational interest”  Many parents encourage full disclosure, but others are sensitive about child’s condition and accommodations
  56. 56. 56 III. Allergies and MCS – Takeaways  Pay Attention to Field Trips/Extracurriculars  Consider how to provide accommodations  No exclusion unless participation would present unreasonable safety risk  Intervene Quickly if Signs of Bullying Appear  Investigate each alleged incident  Include food allergies/MCS in written anti-harassment policy and make sure students understand consequences
  57. 57. 57 Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .
  58. 58. 58 Information in this presentation, including but not limited to PowerPoint handouts and the presenters' comments, is summary only and not legal advice. We advise you to consult with legal counsel to determine how this information may apply to your specific facts and circumstances .