Legal Issues Regarding School Health

1. Legal Issues Regarding School Health Christy Ballard General Counsel TN Department of Education

2. 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 student’s individual health plan.

3. Section 504 of the Rehabilitation Act of 1973

4. 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

5. Section 504 states that: • No otherwise qualified individual with a disability…shall, 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.

6. 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.

7. 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.

8. Section 504 • It protects: Individuals with disabilities, who are otherwise qualified • It applies to: Entities that receive federal funds

9. 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.

10. 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

11. 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

12. Mental Impairment Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities

13. 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 one’s self

14. 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

15. How to Determine Substantial Limitation • Nature & severity of impairment • Duration or expected duration of impairment • Permanent or long-term impact resulting from impairment

16. 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

17. 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

18. Temporary Disabilities • Students with broken bones • Students who become pregnant (problem pregnancies) • Students with cancer

19. Examples Of Students Who Are Probably Not Covered Under Section 504 • Slow Learners • Environmental, Cultural or Economically Disadvantaged • Primary language not English

20. 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.

21. 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

22. 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.

23. Equal Opportunities • Same academic curriculum as nondisabled students • Non-academic & extracurricular activities • Recreational activities • Athletics • Student employment • Student clubs • Field trips

24. 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

25. 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 can’t be explained • Parents request referral • Teacher refers

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

27. 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 district’s geographic area who are not receiving public education

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

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

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

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

32. 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 “Foodallergies, 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 foodallergies 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.

33. 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

34. 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

35. 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.

36. 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?

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