Legal Issues Regarding School Health

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Legal Issues Regarding School Health

• Christy Ballard
• General Counsel
• TN Department of Education

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New Tennessee Law

• Public Chapter 1054
• Allows volunteer school personnel with proper
  training to administer anti-seizure medications
  to a student in an emergency situation in
  accordance with the students individual health
  plan.

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Section 504 of the Rehabilitation Act of 1973
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Section 504

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

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Section 504 states that

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

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Eligibility for Protections Services Under
Section 504

• Eligibility is very broad covers many different
  types of disabilities and disabling conditions,
  many of which are not covered under IDEA.
• Eligibility is based on the definition of
  disability, as defined in Section 504.
• Eligibility is not based on clinical categories,
  such as mental retardation or learning
  disabilities.

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Eligibility for Protections Services Under
Section 504

• Eligibility for protections under Section 504 is
  not related to eligibility under other federal or
  state laws, such as IDEA.
• As with IDEA, schools are required to locate
  students in its districts who may be eligible for
  protections under Section 504.

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Section 504

• It protects Individuals with disabilities, who
  are otherwise qualified
• It applies to Entities that receive federal
  funds

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Who is a qualified student?

• Of an age during which persons without
  disabilities are provided such services
• Of any age during which it is mandatory under
  state law to provide such services to student
  with disabilities or
• A student for whom a state is required to provide
  a free appropriate public education under IDEA.

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Definition of Disability

• Physical or mental impairment which substantially
  limits one or more major life activities,
• Has a record of such an impairment, or
• Is regarded as having such an impairment

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Physical Impairment

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

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Mental Impairment

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

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Major Life Activities

• Major life activities include a wide variety of
  daily activities. They include functions such
  as
• Performing manual tasks
• Walking
• Seeing
• Hearing
• Speaking
• Breathing
• Learning
• working
• caring for ones self

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Substantial Limitation

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

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How to Determine Substantial Limitation

• Nature severity of impairment
• Duration or expected duration of impairment
• Permanent or long-term impact resulting from
  impairment

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Examples Of Students Who May Not Be Eligible
Under IDEA But May Be Eligible Under Section 504

• ADD/ADHD
• Cystic Fibrosis
• Spina Bifida
• Mild Cerebral Palsy
• Learning disability (when discrepancy is not
  severe)
• Sickle Cell Anemia
• Childhood Cancer

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Students Who Are Likely Covered Under Section 504
But Not IDEA

• Students with a history of alcohol or drug abuse
• Students with health needs
• Students with communicable diseases, such as AIDS

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Temporary Disabilities

• Students with broken bones
• Students who become pregnant (problem
  pregnancies)
• Students with cancer

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Examples Of Students Who Are Probably Not Covered
Under Section 504

• Slow Learners
• Environmental, Cultural or Economically
  Disadvantaged
• Primary language not English

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

• Annually identify locate all children with
  disabilities who should be served
• Provide FAPE to each student
• Ensure each student with disabilities is educated
  with nondisabled students to the maximum extent
  appropriate.

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

• Establish nondiscriminatory evaluation
  placement procedures
• Establish procedural safeguards to enable parents
  guardians to participate meaningfully in
  decisions regarding the evaluation placement of
  children
• Afford children with disabilities an equal
  opportunity to participate in nonacademic and
  extracurricular services and activities

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Definition of FAPE Under Section 504

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

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Equal Opportunities

• Same academic curriculum as nondisabled students
• Non-academic extracurricular activities
• Recreational activities
• Athletics
• Student employment
• Student clubs
• Field trips

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Physical Accessibility

• All buildings in a school district do not have to
  be accessible. Rather, all PROGRAMS offered by
  the district have to be accessible.
• Buildings that are renovated, new, or that will
  be built in the future must be accessible for
  children with different types of disabilities

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When to Refer Students

• Referred for IDEA, but the decision is not to
  evaluate
• Determined not to be eligible under IDEA
• Suspected of having a disability
• Continues to display behavior problems
• Major health problems
• expelled or suspended repeatedly
• Problems that cant be explained
• Parents request referral
• Teacher refers

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Section 504Procedural Requirements

• Written assurance of non-discrimination whenever
  district receives federal money
• Designate an employee to coordinate the
  districts Section 504 compliance activities.
• Provide grievance procedure to resolve complaints
  of discrimination

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Section 504Procedural Requirements

• Provide notice to students, parents and employees
  of nondiscrimination in any program or activity.
  Notice to be provided in student handbooks and
  should specify Section 504 Coordinator.
• Annually identify and locate all qualified
  children with disabilities in the districts
  geographic area who are not receiving public
  education

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Section 504Procedural Requirements

• Annually notify students parents of districts
  responsibilities under Section 504
• Establish implement procedural safeguards to be
  provided to parents with respect to
  identification, evaluation, or educational
  placement of students that include
• notice of rights
• opportunity to examine records
• impartial hearing

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Section 504Procedural Requirements

• Section 504 committees
• Section 504 building coordinator
• administrators
• classroom teachers
• school counselors
• school nurses
• school psychologists
• special ed representatives

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FAQs

• Where should medical procedures take place?
• Does Section 504 require LEAs to provide snacks
  or special meals for students with diabetes?

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FAQs

• Can a student with multiple chemical
  sensitivities (MCS) or food allergies be
  classified as disabled under Section 504?
• Yes. Usually when a students allergies (food,
  chemical, latex, fragrance, etc.) impact his
  ability to attend school or jeopardize his health
  the LEA must remove the substance from the
  students environment or otherwise adjust the
  students placement to eliminate or minimize his
  exposure at school.

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FAQs

• Food allergies are most likely to trigger the
  adverse reactions that schools must be ready
  respond to.
• Guidelines for Managing Life-Threatening Food
  Allergies in Tennessee Schools
• TN AG opined in 2005 Food allergies, such as to
  peanuts, are generally not regarded as a
  disability as that term is defined by the ADA
  Federal regulations promulgated under the IDEA
  evidence no inclusion of food allergies within
  the scope of health impairments that the IDEA is
  intended to cover. Tenn. Op. Atty. Gen. No.
  05-178
• However, this opinion does not reference Section
  504 and OCR has written many letters of finding
  addressing accommodations for this allergy.

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FAQs

• Daily vacuuming of the classroom carpet
• Daily washing of desks in the classroom
• Daily hand washing by everyone when they enter
  the classroom for the first time and after snack
  recess and lunch break
• Maintaining the classroom as a "food-free" area
• Discontinue serving products containing peanuts
  and/or tree nuts in the cafeteria
• Provide notice to all parents of students and
  students at the School and on the student's bus
  of the fact that a student with a peanut allergy
  attends the school and rides the bus and explain
  the cooperation it is requesting of them
• Create and implement the emergency plan if the
  student comes into contact with nuts or nut
  byproducts

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FAQs

• No nuts or nut products on field trips conducted
  by the school
• For field trips, a letter will sent be home
  informing parents that a student with a peanut
  allergy will be participating and requesting that
  they not send students on the trip with peanut
  products
• Epi-pen to be placed in classroom and office
• Make all students and staff aware that there is a
  student with a peanut allergy
• The School will use its best efforts to prevent
  accidental exposure to peanut products, including
  researching the possibility of locating peanut
  butter substitutes on days in which peanut butter
  is typically served

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FAQs

• Caveat Locating a student with a food allergy at
  a separate table in the cafeteria is a violation
  of LRE and inmost cases is not permissible.
• Chemical, fragrance and latex allergies will
  require accommodations unique to the allergen
  with fragrance allergies possibly requiring a
  school fragrance free policy.

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FAQs

• Can a parent elect to have a student with a
  disability who is eligible under the IDEA
  identified as covered under Section 504 only?
• When will a student with attention deficit
  disorder (ADD) or attention deficit hyperactivity
  disorder (ADHD) be eligible under the IDEA rather
  than solely under Section 504?

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