Legal Issues Legal Issues Regarding School Regarding School

HealthHealth

Christy BallardChristy BallardGeneral CounselGeneral Counsel

TN Department of EducationTN Department of Education

New Tennessee LawNew Tennessee Law

• Public Chapter 1054Public Chapter 1054– Allows volunteer school personnel with Allows volunteer school personnel with

proper training to administer anti-proper training to administer anti-seizure medications to a student in an seizure medications to a student in an emergency situation in accordance with emergency situation in accordance with the student’s individual health plan.the student’s individual health plan.

Section 504 of the Section 504 of the Rehabilitation Act of Rehabilitation Act of

19731973

Section 504Section 504

• Section 504 of the Rehabilitation Section 504 of the Rehabilitation Act of 1973 is major federal Act of 1973 is major federal legislation that impacts entities that legislation that impacts entities that receive federal funding. It is civil receive federal funding. It is civil rights legislation for persons with rights legislation for persons with disabilities, designed to prevent disabilities, designed to prevent any form of discrimination based on any form of discrimination based on disabilitiesdisabilities

Section 504 states that:Section 504 states that:

• No otherwise qualified individual No otherwise qualified individual with a disability…shall, solely by with a disability…shall, solely by reason of her or his disability, be reason of her or his disability, be excluded from the participation in, excluded from the participation in, be denied the benefits of, or be be denied the benefits of, or be subjected to discrimination under subjected to discrimination under any program or activity receiving any program or activity receiving federal financial assistance.federal financial assistance.

Eligibility for Protections & Eligibility for Protections & Services Under Section 504Services Under Section 504

• Eligibility is very broad & covers many Eligibility is very broad & covers many different types of disabilities and different types of disabilities and disabling conditions, many of which disabling conditions, many of which are not covered under IDEA.are not covered under IDEA.

• Eligibility is based on the definition of Eligibility is based on the definition of disability, as defined in Section 504.disability, as defined in Section 504.

• Eligibility is not based on clinical Eligibility is not based on clinical categories, such as mental categories, such as mental retardation or learning disabilities.retardation or learning disabilities.

Eligibility for Protections & Eligibility for Protections & Services Under Section 504Services Under Section 504

• Eligibility for protections under Eligibility for protections under Section 504 is not related to Section 504 is not related to eligibility under other federal or state eligibility under other federal or state laws, such as IDEA.laws, such as IDEA.

• As with IDEA, schools are required to As with IDEA, schools are required to locate students in its districts who locate students in its districts who may be eligible for protections under may be eligible for protections under Section 504.Section 504.

Section 504Section 504

•It protects: Individuals with It protects: Individuals with disabilities, who are disabilities, who are otherwise qualified otherwise qualified

•It applies to: Entities that It applies to: Entities that receive federal fundsreceive federal funds

Who is a qualified student?Who is a qualified student?

• Of an age during which persons without Of an age during which persons without disabilities are provided such services;disabilities are provided such services;

• Of any age during which it is mandatory Of any age during which it is mandatory under state law to provide such services to under state law to provide such services to student with disabilities; orstudent with disabilities; or

• A student for whom a state is required to A student for whom a state is required to provide a free appropriate public provide a free appropriate public education under IDEA.education under IDEA.

Definition of DisabilityDefinition of Disability

• Physical or mental impairment which Physical or mental impairment which substantially limits one or more substantially limits one or more major life activities,major life activities,

• Has a record of such an impairment, Has a record of such an impairment, oror

• Is regarded as having such an Is regarded as having such an impairmentimpairment

Physical ImpairmentPhysical Impairment

Any physiological disorder or condition, Any physiological disorder or condition, cosmetic disfigurement or anatomical cosmetic disfigurement or anatomical loss affecting one or more of the loss affecting one or more of the following body system: neurological; following body system: neurological; musculoskeletal; special sense organs; musculoskeletal; special sense organs; respiratory, including speech organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; genitourinary; hemic and lymphatic; skin; and endocrine; orskin; and endocrine; or

Mental ImpairmentMental Impairment

Any mental or psychological disorder, Any mental or psychological disorder, such as mental retardation, organic such as mental retardation, organic brain syndrome, emotional or mental brain syndrome, emotional or mental illness, and specific learning illness, and specific learning disabilitiesdisabilities

Major Life ActivitiesMajor Life Activities• Major life activities include a wide variety of daily activities. Major life activities include a wide variety of daily activities.

They include functions such as:They include functions such as:– Performing manual tasksPerforming manual tasks

– WalkingWalking– SeeingSeeing– HearingHearing– SpeakingSpeaking– BreathingBreathing– LearningLearning– workingworking

– caring for one’s selfcaring for one’s self

Substantial LimitationSubstantial Limitation• Unable to perform a major life activity that Unable to perform a major life activity that

the average person in the general the average person in the general population can perform, orpopulation can perform, or

• Significantly restricted as to the condition, Significantly restricted as to the condition, manner or duration under which an manner or duration under which an individual can perform a particular major individual can perform a particular major life activity as compared to the condition, life activity as compared to the condition, manner, or duration under which the manner, or duration under which the average person in the general population average person in the general population can perform that same major life activitycan perform that same major life activity

How to Determine How to Determine Substantial LimitationSubstantial Limitation

• Nature & severity of impairmentNature & severity of impairment

• Duration or expected duration of Duration or expected duration of impairmentimpairment

• Permanent or long-term impact Permanent or long-term impact resulting from impairmentresulting from impairment

Examples Of Students Who May Examples Of Students Who May Not Be Eligible Under IDEA But Not Be Eligible Under IDEA But May Be Eligible Under Section May Be Eligible Under Section 504504

• ADD/ADHDADD/ADHD• Cystic FibrosisCystic Fibrosis• Spina BifidaSpina Bifida

• Mild Cerebral PalsyMild Cerebral Palsy• Learning disability (when discrepancy is Learning disability (when discrepancy is

not severe)not severe)• Sickle Cell AnemiaSickle Cell Anemia• Childhood CancerChildhood Cancer

Students Who Are Likely Students Who Are Likely Covered Under Section Covered Under Section

504 But Not IDEA504 But Not IDEA

• Students with a history of alcohol Students with a history of alcohol or drug abuseor drug abuse

• Students with health needsStudents with health needs

• Students with communicable Students with communicable diseases, such as AIDSdiseases, such as AIDS

Temporary DisabilitiesTemporary Disabilities

•Students with broken bonesStudents with broken bones

•Students who become Students who become pregnant (problem pregnant (problem pregnancies)pregnancies)

•Students with cancerStudents with cancer

Examples Of Students Examples Of Students Who Are Probably Who Are Probably NotNot Covered Under Section Covered Under Section 504504•Slow LearnersSlow Learners

•Environmental, Cultural or Environmental, Cultural or Economically DisadvantagedEconomically Disadvantaged

•Primary language not EnglishPrimary language not English

What Must Schools Do What Must Schools Do According to OCR to Meet According to OCR to Meet RequirementsRequirements of Section 504? of Section 504?

• Annually identify & locate all children Annually identify & locate all children with disabilities who should be servedwith disabilities who should be served

• Provide FAPE to each student Provide FAPE to each student

• Ensure each student with disabilities is Ensure each student with disabilities is educated with nondisabled students to educated with nondisabled students to the maximum extent appropriate.the maximum extent appropriate.

What Must Schools Do What Must Schools Do According to OCR to Meet According to OCR to Meet RequirementsRequirements of Section 504? of Section 504?

• Establish nondiscriminatory evaluation & Establish nondiscriminatory evaluation & placement proceduresplacement procedures

• Establish procedural safeguards to enable Establish procedural safeguards to enable parents & guardians to participate parents & guardians to participate meaningfully in decisions regarding the meaningfully in decisions regarding the evaluation & placement of childrenevaluation & placement of children

• Afford children with disabilities an equal Afford children with disabilities an equal opportunity to participate in nonacademic opportunity to participate in nonacademic and extracurricular services and activitiesand extracurricular services and activities

Definition of FAPE Under Definition of FAPE Under Section 504Section 504

• FAPE is the provision of regular or special FAPE is the provision of regular or special education & related aids & services education & related aids & services designed to meet individual educational designed to meet individual educational needs of handicapped persons as well as needs of handicapped persons as well as the needs of non-handicapped persons are the needs of non-handicapped persons are met, & is based on the adherence to the met, & is based on the adherence to the procedural safeguards outlined in the law.procedural safeguards outlined in the law.

Equal OpportunitiesEqual Opportunities

• Same academic curriculum as nondisabled Same academic curriculum as nondisabled studentsstudents

• Non-academic & extracurricular activitiesNon-academic & extracurricular activities• Recreational activitiesRecreational activities• AthleticsAthletics• Student employmentStudent employment• Student clubsStudent clubs• Field tripsField trips

Physical AccessibilityPhysical Accessibility

• All buildings in a school district do All buildings in a school district do not have to be accessible. Rather, all not have to be accessible. Rather, all PROGRAMSPROGRAMS offered by the district offered by the district have to be accessible.have to be accessible.

• Buildings that are renovated, new, or Buildings that are renovated, new, or that will be built in the future must that will be built in the future must be accessible for children with be accessible for children with different types of disabilitiesdifferent types of disabilities

When to Refer StudentsWhen to Refer Students• Referred for IDEA, but the decision is not to Referred for IDEA, but the decision is not to

evaluateevaluate• Determined not to be eligible under IDEADetermined not to be eligible under IDEA• Suspected of having a disabilitySuspected of having a disability• Continues to display behavior problemsContinues to display behavior problems• Major health problemsMajor health problems• expelled or suspended repeatedlyexpelled or suspended repeatedly• Problems that can’t be explainedProblems that can’t be explained• Parents request referralParents request referral• Teacher refersTeacher refers

Section 504Section 504Procedural RequirementsProcedural Requirements• Written assurance of non-discrimination Written assurance of non-discrimination

whenever district receives federal moneywhenever district receives federal money

• Designate an employee to coordinate the Designate an employee to coordinate the district’s Section 504 compliance district’s Section 504 compliance activities. activities.

• Provide grievance procedure to resolve Provide grievance procedure to resolve complaints of discrimination; complaints of discrimination;

Section 504Section 504Procedural RequirementsProcedural Requirements• Provide notice to students, parents and Provide notice to students, parents and

employees of nondiscrimination in any employees of nondiscrimination in any program or activity. Notice to be provided program or activity. Notice to be provided in student handbooks and should specify in student handbooks and should specify Section 504 Coordinator.Section 504 Coordinator.

• Annually identify and locate all qualified Annually identify and locate all qualified children with disabilities in the district’s children with disabilities in the district’s geographic area who are not receiving geographic area who are not receiving public educationpublic education

Section 504Section 504Procedural RequirementsProcedural Requirements• Annually notify students & parents of district’s Annually notify students & parents of district’s

responsibilities under Section 504responsibilities under Section 504

• Establish & implement procedural safeguards to Establish & implement procedural safeguards to be provided to parents with respect to be provided to parents with respect to identification, evaluation, or educational identification, evaluation, or educational placement of students that include:placement of students that include:– notice of rightsnotice of rights– opportunity to examine recordsopportunity to examine records– impartial hearingimpartial hearing

Section 504Section 504Procedural RequirementsProcedural Requirements

• Section 504 committeesSection 504 committees– Section 504 building coordinatorSection 504 building coordinator– administratorsadministrators– classroom teachersclassroom teachers– school counselorsschool counselors– school nursesschool nurses– school psychologistsschool psychologists– special ed representativesspecial ed representatives

FAQsFAQs

• Where should medical procedures Where should medical procedures take place?take place?

• Does Section 504 require LEAs to Does Section 504 require LEAs to provide snacks or special meals for provide snacks or special meals for students with diabetes?students with diabetes?

FAQsFAQs

• Can a student with multiple chemical Can a student with multiple chemical sensitivities (MCS) or food allergies be sensitivities (MCS) or food allergies be classified as disabled under Section 504?classified as disabled under Section 504?– Yes. Yes. Usually when a student’s allergies (food, Usually when a student’s allergies (food,

chemical, latex, fragrance, etc.) impact his chemical, latex, fragrance, etc.) impact his ability to attend school or jeopardize his ability to attend school or jeopardize his health the LEA must remove the substance health the LEA must remove the substance from the student’s environment or otherwise from the student’s environment or otherwise adjust the student’s placement to eliminate adjust the student’s placement to eliminate or minimize his exposure at school.or minimize his exposure at school.

FAQsFAQs– Food allergies are most likely to trigger the adverse Food allergies are most likely to trigger the adverse

reactions that schools must be ready respond to. reactions that schools must be ready respond to. – Guidelines for Managing Life-Threatening Food Guidelines for Managing Life-Threatening Food

Allergies in Tennessee SchoolsAllergies in Tennessee Schools– TN AG opined in 2005 “FoodTN AG opined in 2005 “Food allergies, such as to allergies, such as to

peanuts, are generally not regarded as a disability peanuts, are generally not regarded as a disability as that term is defined by the ADA… Federal as that term is defined by the ADA… Federal regulations promulgated under the IDEA evidence regulations promulgated under the IDEA evidence no inclusion of foodno inclusion of food allergies within the scope of allergies within the scope of health impairments that the IDEA is intended to health impairments that the IDEA is intended to cover. cover. Tenn. Op. Atty. Gen. No. 05-178Tenn. Op. Atty. Gen. No. 05-178

– However, this opinion does not reference Section However, this opinion does not reference Section 504 and OCR has written many letters of finding 504 and OCR has written many letters of finding addressing accommodations for this allergy.addressing accommodations for this allergy.

FAQsFAQs– Daily vacuuming of the classroom carpetDaily vacuuming of the classroom carpet– Daily washing of desks in the classroomDaily washing of desks in the classroom– Daily hand washing by everyone when they enter the Daily hand washing by everyone when they enter the

classroom for the first time and after snack recess and classroom for the first time and after snack recess and lunch breaklunch break

– Maintaining the classroom as a "food-free" areaMaintaining the classroom as a "food-free" area– Discontinue serving products containing peanuts and/or Discontinue serving products containing peanuts and/or

tree nuts in the cafeteriatree nuts in the cafeteria– Provide notice to all parents of students and students at Provide notice to all parents of students and students at

the School and on the student's bus of: the fact that a the School and on the student's bus of: the fact that a student with a peanut allergy attends the school and student with a peanut allergy attends the school and rides the bus and explain the cooperation it is requesting rides the bus and explain the cooperation it is requesting of them of them

– Create and implement the emergency plan if the student Create and implement the emergency plan if the student comes into contact with nuts or nut byproducts comes into contact with nuts or nut byproducts

FAQsFAQs– No nuts or nut products on field trips conducted by No nuts or nut products on field trips conducted by

the schoolthe school– For field trips, a letter will sent be home informing For field trips, a letter will sent be home informing

parents that a student with a peanut allergy will be parents that a student with a peanut allergy will be participating and requesting that they not send participating and requesting that they not send students on the trip with peanut productsstudents on the trip with peanut products

– Epi-pen to be placed in classroom and officeEpi-pen to be placed in classroom and office– Make all students and staff aware that there is a Make all students and staff aware that there is a

student with a peanut allergystudent with a peanut allergy– The School will use its best efforts to prevent The School will use its best efforts to prevent

accidental exposure to peanut products, including accidental exposure to peanut products, including researching the possibility of locating peanut butter researching the possibility of locating peanut butter substitutes on days in which peanut butter is substitutes on days in which peanut butter is typically servedtypically served

FAQsFAQs– Caveat: Caveat: Locating a student with a food allergy Locating a student with a food allergy

at a separate table in the cafeteria is a at a separate table in the cafeteria is a violation of LRE and inmost cases is not violation of LRE and inmost cases is not permissible.permissible.

– Chemical, fragrance and latex allergies will Chemical, fragrance and latex allergies will require accommodations unique to the allergen require accommodations unique to the allergen with fragrance allergies possibly requiring a with fragrance allergies possibly requiring a school fragrance free policy.school fragrance free policy.

FAQsFAQs

• Can a parent elect to have a student with Can a parent elect to have a student with a disability who is eligible under the IDEA a disability who is eligible under the IDEA identified as covered under Section 504 identified as covered under Section 504 only?only?

• When will a student with attention deficit When will a student with attention deficit disorder (ADD) or attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD) be eligible hyperactivity disorder (ADHD) be eligible under the IDEA rather than solely under under the IDEA rather than solely under Section 504?Section 504?

www.state.tn.us/education/speced/www.state.tn.us/education/speced/sesection504man.docsesection504man.doc