This document discusses serving students with medical needs. It covers three topics: 1) placing and serving students with medical needs in the least restrictive environment (LRE), discussing relevant laws, cases, and takeaways; 2) home/hospital instruction, outlining rules for general education and special education students; and 3) serving students with allergies or multiple chemical sensitivities, addressing eligibility for services under Section 504. For each topic, the document analyzes laws, case examples, and practical guidance for school districts.
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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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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
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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
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
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)
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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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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
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)
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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 . . .
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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
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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)
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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 . . .
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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
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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)
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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
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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
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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)
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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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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))
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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))
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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))
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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))
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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))
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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)
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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)
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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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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)
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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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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)
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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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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
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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
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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
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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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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))
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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)
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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)
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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
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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
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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
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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
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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
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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
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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
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
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
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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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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
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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
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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
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
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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 .