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

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All Things Considered
Serving Students with
Medical Needs

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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)

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I. Placing and Serving
Students with Medical Needs
in the Least Restrictive
Environment

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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)

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 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

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 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

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 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

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 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)

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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 . . .

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 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

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 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)

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Cases
And other times, especially
when contact with other children
can pose a health risk,
classroom facilities can be
a factor in determining LRE . . .

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 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

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 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)

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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 . . .

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 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

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 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)

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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

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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

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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)

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II. Home/Hospital
Instruction

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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)

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 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))

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 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))

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 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))

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 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))

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 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))

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 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)

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 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)

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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. . .

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 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)

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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. . .

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 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)

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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

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 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

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 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

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 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

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III. Students with Allergies
or Multiple Chemical
Sensitivities

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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)

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 “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))

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 “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)

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 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)

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 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

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 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

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 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

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 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

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 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

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 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

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 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

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 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

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 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

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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

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 “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

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 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

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 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

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 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

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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 .

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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 .

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