Abstract
News reports illustrate controversies between parents and schools in response to student health problems. Today’s school nurse is in a pivotal position for the avoidance and resolution of disputes not only by increasing awareness of student health conditions but also by having a working knowledge of legal developments under Section 504 and its sister statute—the Americans with Disabilities Act (ADA). The ADA amendments of 2008 have extended the standards for eligibility and expanded questions about school districts’ obligations under Section 504 and the ADA. This article provides a comprehensive synthesis of recent case law and related legal developments under this pair of federal statutes, culminating in practical implications and professional recommendations for school nurses.
Increasing awareness about asthma, allergies, diabetes, and other student health conditions and incomplete knowledge of legal developments under Section 504 of the Rehabilitation Act and its sister statute, the Americans with Disabilities Act (ADA) have combined to generate widespread controversy, with the school nurse in a pivotal position for avoiding and resolving disputes. A recent sampling of news reports illustrates the range of school responses and parent reactions.
For example, Fox News recently reported a public furor in a Florida school district when an elementary school took several steps to protect a first grader with a severe peanut allergy, including requiring students to wash their hands and rinse their mouths before entering class in the morning and after lunch; having teachers continually wipe down desks with Clorox; and monitoring that the school was peanut free by bringing in a peanut-sniffing dog (O’Connor, 2011). According to the report, the district spokesperson reportedly said that “the Federal Disabilities Act” requires these steps, but a physician from the Food Allergy and Anaphylaxis Network asserted that the school had gone too far compared to simpler and easier ways to protect the child.
At the other end of the spectrum, some schools purportedly do not do enough to accommodate a student’s needs. For example, another national news service reported that the parents of a child with multiple chemical sensitivity, who had been hospitalized three times with anaphylactic shock after exposure to recently sprayed perfume, cologne, or other scents, sued an Indiana school district under Section 504 and the ADA because the district officials refused to ban scented sprays on school grounds (Freed, 2010).
These school controversies and legal disputes often pivot on the actions and knowledge of the school nurse. The education system relies on the school nurse to be the link between the medical and educational communities. As a result, the knowledge base required by the school nurse must be extensive (Wolfe & Selekman, 2002). Certain health conditions of children in grades K–12 are on the rise, and the corresponding legal developments under the federal disability antidiscrimination statutes are similarly significant for school nurses. More specifically, the incidence among children under 18 years of age has risen in 2006 to approximately 25% with respiratory and other allergies, 14% with asthma, and 13% with a health problem treated by prescription medication (Bloom & Cohen, 2007). Although only 1.2% of public school children had Section 504 plans in 2006 (Holler & Zirkel, 2008), expanded standards for eligibility as a result of the ADA amendments of 2008 require careful consideration by Section 504 teams, where the school nurse is the health expert. Occupying this pivotal position, the school nurse needs to keep current on legal developments under Section 504 and the ADA in relation to K–12 students with health conditions.
With increasing legal disputes and rulings specific to students’ health issues under Section 504, the school nurse needs to be aware of not only whether the child is eligible but also what the resulting school obligation is for “free appropriate public education” (FAPE). When a parent of a student with peanut allergy and asthma comes to the school’s health office, demands an extensive 504 plan, and threatens legal action, is the school nurse prepared, in terms of current legal information, to respond effectively? This article provides a concise, comprehensive review of the professional literature and the legal developments to address the intersection of student health needs and Section 504.
Literature Review
The literature provides current data on the leading health problems of school-age children. Specifically, asthma and life-threatening allergies are prevalent chronic health conditions among school-age children (American Academy of Allergy, Asthma, & Immunology, 2005/2007). Moreover, at least 15% of the school-age children with food allergies have had a reaction in school. These reactions warrant strategies not only to reduce the risk of ingestion of the allergen but also to recognize and treat allergic reactions that include anaphylaxis (Sicherer, Furlong, DeSimone, & Sampson, 2011).
Relatively ample literature extends beyond prevalence of children with such health conditions and includes recommendations and guidelines for school nurses. For example, a study of the school nursing role in asthma management found that the nurses frequently provided direct care, education, and recommended provision of an asthma action plan for each individual child with need for such accommodations in school (Borgmeyer, Jamerson, Gyr, Westhus, & Glynn, 2005). Similarly, Cavanaugh and Strickland (2011) offered specific guidelines for school districts in response to the increased numbers of school-aged children with life-threatening allergies that cause anaphylaxis. More specifically, identifying the need for an integrated curriculum to train school staff, they provided a train-the-trainer anaphylaxis education program for school nurses, including lesson plans, teaching–learning activities, and resources for anaphylaxis education. Other relatively recent sources also have focused on children with life-threatening allergies, including recommendations for managing asthmatic, anaphylactic, and diabetic emergencies (Allen, Henselman, Laird, Quinones, & Reutzel, 2012); current clinical guidelines for food allergies or other emergencies in school (Powers, Bergren, & Finnegan, 2007); and comprehensive guidance for school district policies for students with food allergies (Bugden, Martinez, Greene, & Eig, 2011; Weiss, Munoz-Furlong, Furlong, & Arbit, 2004).
In contrast, the nursing literature is much less extensive with regard to Section 504 and the ADA. It includes a few primer-type articles on Section 504 (Moses, Gilchrest, & Schwab, 2005). However, such basic treatments need both thorough updating and more nuanced analysis in terms of the current application of this federal law to students with such health conditions. More recently, Zirkel (2009) provided an initial step in this direction by describing the new eligibility criteria for K–12 students under Section 504 as a result of the ADA amendments. More specifically, he explained that the ADA amendments launched a new expansive era, reversing the constrictive court interpretations of the previous two decades, as of January 1, 2009. Because the expansive effect was most pronounced for children with episodic and medicated conditions, who are beyond the coverage of the Individuals with Disabilities Education Act (IDEA, 2010), he observed that the school nurse plays a significantly increased role. This enhanced and expanded role starts as a member of, or consultant to, the school teams that determine student eligibility under Section 504. Subsequently, Sampson and Galemore (2012) provided a practical elaboration of the effects of the ADA amendments for school nurses, without exploring the case law and most recent legal developments specific to both eligibility and FAPE.
Although the focus in this article is on the intertwined pair of federal laws—Section 504 and the ADA—the school nurse should also be alert to legal developments on the state level. For example, New Jersey has legislation specific to administration of medication to students with asthma or other potentially life-threatening illnesses or allergies (
Legal Developments
The legal analysis of student health issues under Section 504 and the ADA depend largely on the forum for dispute resolution. The two alternate avenues are administrative and adjudicative. For Section 504 and the ADA in the K–12 school context, the principal administrative avenue is for the parent to file a complaint with the federal agency with enforcement authority—the U.S. Department of Education’s Office for Civil Rights (OCR). The principal adjudicative avenue for this pair of statutes is for a parent to file for an impartial hearing and/or court proceeding. The school district is responsible for arranging the impartial—what is sometimes called due process—hearing. The judicial venue is federal court. Although students with health impairments who need special education have the additional coverage of the IDEA, which provides avenues for administrative and adjudicative dispute resolution (Zirkel & McGuire, 2010), the focus here is on students with health impairments whose only coverage, if any, is under Section 504 and the ADA.
The legal disputes for health-related “Section 504-only” students (Holler & Zirkel, 2008) largely fit within two issue categories: (a) eligibility—does John or Jane have a physical or mental impairment that substantially limits one or more major life activities? and, if so, (b) what is the school’s obligation in terms of providing John or Jane with FAPE under Section 504? However, with the limited exception of “extraordinary circumstances,” such as life-threatening health conditions, OCR limits its investigation to procedural issues, such as whether the district provided the required written notice and knowledgeable team for its eligibility and FAPE determinations. Only for the limited exception does OCR address substantive issues, such as whether the child is eligible under Section 504 or whether the 504 plan is appropriate, instead of leaving these matters to the adjudicative process (e.g., OCR, 2009).
Thus, this section synthesizes the various published administrative and adjudicative rulings specific to health issues of Section 504-only students within two categories—eligibility and FAPE—that, respectively, address the procedural and substantive aspects of these issues. The focus of the selection and synthesis will be the concerns for the school nurse.
Eligibility
Eligibility under Section 504 and the ADA equates to meeting the three essential elements for the definition of disability under these two statutes, which is different from the definition of disability in the IDEA (2010) regulations. The three elements are (a) physical or mental impairment that (b) substantially limits (c) one or more major life activities. In contrast, the IDEA has a limited set of recognized impairments and, via the additional criterion of an adverse effect on educational performance necessitating special education, is specific to learning.
The Americans with Disability Act Amendments Act (ADAAA, 2008) went into effect on January 1, 2009. It significantly expanded the interpretation of the definition of disability, which is identical under both the ADA and Section 504. Thus, the ADAAA directly affects the scope of eligibility but also indirectly affects the extent of the FAPE obligation. For eligibility, the primary pertinent changes of the ADAAA were (a) expanding the list of major life activities to include eating and major bodily functions; (b) requiring the determination of substantial limitation to be without—rather than with—mitigating measures, such as medication, prosthetics, and other medical supplies or equipment; and (c) basing this determination for conditions that are episodic or in remission on when they are active (Zirkel, 2009). Moreover, the amendments require that the Section 504/ADA definition of disability be construed “in favor of broad coverage. . . . to the maximum extent permitted by [its] terms” (§ 12102[4][A]).
Procedural Issues
As a result of the expanded coverage of Section 504 as a result of the ADAAAA, the principal procedural issue for school nurses is what is the proper approach for students currently served under individual health plans? As canvassed in a separate article (Zirkel, 2012), OCR has recently issued formal letters of findings (LOFs) after investigating various parent complaints about such students in the wake of the ADAAA. The primary lesson, in terms of OCR compliance, appears to be that school districts should promptly arrange to screen all students on health plans to determine which ones are covered by the § 504 “child find” obligation. This obligation refers to those students whom district personnel have reason to suspect as having a physical or mental impairment that substantially limits a major life activity under the applicable standards of the ADAAA. For those children on health plans who fit within this reason-to-suspect scope, the district needs to obtain parental consent, conduct a timely eligibility evaluation, and provide the Section 504 procedural safeguards notice. The school nurse obviously has a key role in this screening and evaluation process.
Assorted other OCR LOFs concerning procedural compliance specific to eligibility extend to students with physical impairments not on health plans. A persistent problem is limiting eligibility determination under Section 504 to learning-related impairments. For example, OCR concluded that a Colorado district committed a procedural violation by refusing to evaluate for Section 504 eligibility a bright student with peanut allergy and asthma. The district was also in violation for failing to provide the parents, at the time of this refusal with the procedural safeguards notice that the Section 504 regulations (2010) require (Aurora City School District, 2009). Exemplifying other frequent compliance issues, OCR concluded that a Michigan district failed to provide a timely and appropriate evaluation under § 504 for a student with bone cancer by (a) not conducting the evaluation until several months after notification of her medical condition; (b) using an unduly restrictive, learning-based definition for eligibility; and (c) not considering all relevant information, particularly of a medical nature (Union City Community Schools, 2009). As an example of a hybrid issue, that is one that may be regarded as procedural or substantive, OCR rejected the “child find” claim of a parent of a third grader with asthma and mold allergies by concluding a Connecticut district did not have reason to initiate a Section 504 eligibility evaluation (Westport Public Schools, 2009). Neither the student’s attendance record nor the school nurse’s log showed a connection with the student’s medical condition. Additionally, the information from the family physician similarly did not provide sufficient information about the nature and severity of the child’s physical impairment for the requisite reason-to-suspect trigger for an evaluation for Section 504 eligibility.
Substantive Issues
The overlapping substantive question is whether, on an individual basis, the child with a health condition fits within the successive boundaries of the Section 504 “child find” and eligibility standards. The prior case law was rather restrictive, accounting for decisions adverse to the plaintiff parents, even for students with health conditions (e.g., Garcia v. Northside Independent School District, 2007; Kropp v. Maine School Administrative Unit #44, 2007; Soirez v. Vermilion Parish School District, 2005). However, Congress clarified in the ADAAA that its intent was more expansive. Thus far, likely due to the time lag between the effective date of the ADA amendments and the publication of decisions, the published case law specific to these successive issues has been negligible. Although the focus of this article is the public school context, a private school case is the major available example at this point. More specifically, in Franchi v. New Hampton School (2009), a federal court refused the defendant’s motion to dismiss the ADA suit of a student whom a private boarding school had discharged due to her eating disorder. The court called for an individualized factual determination as to whether she met the definition of disability “under the ‘broad’ construction dictated by the ADAAA” (p. 259).
Additionally, OCR addressed the substantive side of eligibility in one of the few LOFs within its “extraordinary circumstances” exception, which was based on the risk of serious illness or death. In this case, OCR first addressed the procedural issues raised by the parent of a child with severe peanut and tree nut allergies. More specifically, OCR concluded that a Virginia district’s determination of ineligibility under Section 504 complied with applicable procedural regulations, such as the requirements for a variety of sources and a knowledgeable team. However, OCR questioned the substantive correctness of the determination. Specifically, OCR expressed concern that “the evidence from the Student’s doctor was not contradicted by any other evidence, and. . . neither the evaluation team members nor anyone with whom they consulted had qualifications approaching those of the Student’s doctor to diagnose the nature and severity of the Student’s [peanut/tree nut allergies] and the likelihood, nature and severity of the harm that could result from the [school district’s] failure to find the Student eligible for Section 504 services” (Gloucester County [VA] Public Schools, 2007, p. 86). To resolve the matter, the district signed a voluntary agreement to reevaluate the student and, if determined to be eligible, provide the student with a 504 plan that meets the FAPE requirement.
Thus, school districts need to revise their eligibility process under Section 504, with due participation by the school nurse, to make individualized but more expansive determinations in light of the ADAAA. The initial key is to avoid the IDEA orientation of limiting consideration to health and other impairments that impact on learning. For the major life activity of eating, the leading conditions for consideration include diabetes and food allergies. Other major life activities that trigger consideration of health conditions include sleeping, breathing, and major bodily functions. For example, school nurses need to alert other personnel that the explicit addition of bowel functions to the list of major life activities suggests the need to consider colitis, Crohn’s disease, and irritable bowel syndrome for Section 504 eligibility determination. The school nurse also needs to keep other personnel informed of low-incidence, and thus not well-known, health conditions that may qualify.
The ultimate key is to find the reasonable balance between under- and overidentification on a case-by-case basis. Given the expansive but unsettled effect of the ADAAA, it is likely that more parents will resort to adjudication in the form of both impartial hearings and court proceedings to determine the specific scope of Section 504 eligibility.
FAPE
The definition of FAPE under the Section 504 regulations has not changed—“regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of [nondisabled] persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of [the Section 504 regulations for evaluation, placement, and least restrictive environment]” (§ 104.33[a]). Subtracting special education in light of the overlapping coverage of the IDEA, the initial lesson is that Section 504 is not limited to accommodations. Instead, FAPE under Section 504 extends instead to “related aids and services.” The more difficult question is the applicable standard for the extent of such services under Section 504. In these difficult economic times, the answer is particularly significant because—unlike the IDEA—neither Section 504 nor the IDEA provide any federal funds for complying with their mandates.
Procedural Issues
OCR’s long-standing answer as to the scope of the district’s obligation is that the regulations provide the standard in the two parts—i and ii—in the above-quoted definition of FAPE (Letter to Zirkel, 1993; OCR, 2009). The first part is often referred to, in shortened form, as “commensurate opportunity” based on its use of the student’s nondisabled peers as the reference point. However, because OCR typically does not address the substantive side of FAPE, its LOFs focus on the second, procedural part. The FAPE-related procedures include the requisite notice for the initial—and any subsequent—significant change in educational placement. Although the Section 504 regulations or even the agency’s official policy interpretations do not require a Section 504 plan (Zirkel, 2011), for all practical purposes OCR similarly requires this documents as a matter of procedure. A recent LOF in response to a parental complaint against a New York district provides as an additional procedural example. Specifically, OCR concluded that the high school’s decision not to allow the student to take a culinary arts class due to his various potentially life-threatening food allergies, which included all dairy, nut/peanut, and egg products, was a procedural violation under Section 504. The basis of this conclusion was that an administrator, rather than a knowledgeable team, determined that the allergist’s specific information was not sufficient (Bethlehem Central School District, 2009).
This procedural side of FAPE also includes the hybrid issue of implementation. For example, in separate recent LOFs, OCR found that a Missouri district did not properly implement the 504 plan of a kindergartener with Celiac disease and that a North Carolina district did not properly implement the 504 plan of a high school student with diabetes (Buncombe County Schools, 2009; Henry County R-1 School District, 2009). A final example shows the overlap with “double-covered” students, that is those with IEPs and, thus, covered by not only the IDEA but also Section 504. More specifically, in response to a parental complaint on behalf of a child with not only asthma and allergies but also Asperger Disorder and an IEP, OCR reached two conclusions. First, the child’s Pennsylvania district had duly implemented the health plan incorporated in the IEP. Second, however, the district failed to follow Section 504’s procedural requirements for an evaluation upon a needed change in placement. Specifically, OCR determined that the district (a) did not conduct the reevaluation when the parent refused to provide the requested medical documentation, and (b) made the placement decision via a single individual, the school doctor, rather than a knowledgeable team (North Penn School District, 2009).
Substantive Issues
Court decisions
In contrast with OCR’s stance, the courts regularly address but have not settled the issue of the applicable substantive standard for student FAPE cases, that is, how much is the eligible student entitled to for an “appropriate” education under Section 504? Is it the same substantive standard that clearly applies to employees, that is “reasonable accommodation”? This standard uses the district’s resources (in terms of “undue hardship”) and mission (in terms of “fundamental alteration”) at the frame of reference for determining the student’s FAPE entitlement. On the other hand, is it the substantive standard that OCR has identified in aforementioned first part of the Section 504 FAPE regulation–commensurate opportunity? This measure to the student’s entitlement (or, conversely, the district’s obligation) uses the performance of nondisabled students in the district as the frame of reference. Depending on the district and the standard, the requisite level of FAPE and, thus, the outcome of legal proceedings may vary considerably.
The majority judicial view thus far appears to favor the reasonable accommodation standard. For example, a federal district court in Pennsylvania used the reasonable accommodation standard, although intertwined with the IDEA standard for FAPE, in rejecting the seven additional accommodations that a parent proposed for her child with severe asthma, gross motor difficulties, and extreme sensitivity to sensory stimulations (Molly L. v. Lower Merion School District, 2002). In a subsequent decision, another federal district court in Pennsylvania used a straight reasonable accommodation standard to evaluate the money damages claim of the parents of a third grader who died of an asthmatic attack in school (Taylor v. Altoona Area School District, 2010). Rejecting the district’s motion for summary judgment, that is a decision prior to a trial, the court preserved for further proceedings whether the child’s 504 plan or the district’s failure to provide the child with transportation and a nebulizer violated this reasonable accommodation standard—and, if so, whether compensatory damages were appropriate. In a more recent federal court decision in Pennsylvania (Ridley School District v. M.R., 2011) used the intertwined, Molly L. standard in rejecting the FAPE claim of the parents of an elementary school child with food allergies, asthma, and eczema. The parents had claimed that the teacher’s incomplete implementation of the child’s 504 plan constituted discrimination. The court concluded that (a) “Section 504 requires ‘reasonable’ accommodation, not the exact accommodation that the Parents request,” and (b) “even if [the teacher] knowingly disregarded this plan on a few occasions, . . . there is no evidence of . . . [isolation, denial of meaningful participation, or undermining of the child’s education]” (p. 392). Similarly, a federal district court in Minnesota applied the reasonable accommodation standard in addressing the Section 504 and ADA claims of the parent of a child with diabetes. The result was a mixed outcome. The court dismissed the parents’ challenge to the district’s refusal to train staff members to administer the child’s glucagon injections. However, the court preserved for trial whether the district’s refusal to assist the child with his blood testing and insulin pump operation violated the reasonable accommodation standard (A.P. v. Anoka-Hennepin Independent School District No. 1, 2008). Further, a federal district court in Kentucky applied a reasonable accommodation standard, intertwined with the reasonable modification standard of the ADA, in ruling against another parents of a child with diabetes. The court concluded that the district’s offer to provide insulin pump monitoring in another district school sufficed. Thus, the court rejected the parent’s insistence that the ADA required the district to hire another nurse so that the child could remain in her neighborhood school (R.K. v. Board of Education, 2010). Similarly, a federal district court in New York rejected the parents’ claim that Section 504 obligated the school personnel heat the homemade lunch of their child with diabetes. Based on medical evidence that this measure was preferred but not necessary, the court concluded that it did not square with the reasonable accommodation standard of meaningful access to school lunch (A.M. v. New York City Department of Education, 2012).
Although reasonable accommodation is the majority view, it is not the clearly settled standard for FAPE in the K–12 context. In a recent decision concerning two siblings with autism, the Ninth Circuit Court of Appeals straddled the fence by sending their case back to the lower court for further proceedings. The appellate court’s instructions were to apply not only reasonable accommodation under the rubric of “meaningful access” but also commensurate opportunity—along with the “deliberate indifference” required for money damages (Mark H. v. Hamamoto, 2010). Even if the standard is commensurate opportunity, the Section 504 FAPE regulation uses the child’s individual “educational needs” as the frame of reference. This reference point differs from the broader clinical perspective that physicians and non-school-related services personnel often use as the basis for their recommendations.
Impartial hearing officer decisions
Providing supplemental but subordinate legal authority, the published hearing officer decisions under Section 504 thus far amount to a limited cluster concerning students with severe food allergies. These decisions show that not only the substantive standard but also its application vary depending on both the specific circumstances and the individual impartial hearing officer. They also vary in terms of their location within the country.
First, in an Oregon case the hearing officer applied the commensurate opportunity standard of the Section 504 FAPE regulation. In doing so, the hearing officer upheld the district’s 504 plan, rather than the more extensive provisions that the parents sought, for a child with life-threatening peanut and tree nut allergies (Cascade School District, 2002). However, in rejecting the parents’ additional claim that the 504 plan should extend to extracurricular activities, the hearing officer indirectly used the reasonable accommodation standard by applying its obverse side. The obverse side under Section 504 and the ADA is that the substantive FAPE obligation does not extend to a fundamental alteration or undue hardship. Specifically, the hearing officer concluded, “It is an undue administrative burden on the District to require that, for non-mandatory activities at which any student’s attendance or participation is voluntary, the District police the behavior of other possible participants, parents and community members alike, and prohibit the provision and distribution of food which may contain or have been processed with peanuts or tree nuts, require all participants to wash their hands or refrain from using any nut-based products prior to attending these events, and so forth” (p. 1356).
In contrast, using the same standards, a hearing officer in Massachusetts agreed with the parents that the district’s provision of a 504 plan for their child was, in effect, too little, too late (Mystic Valley Regional Charter School, 2004). In terms of lateness, the hearing officer found it “troubling” that the district only provided the 504 plan after the parents’ filed a complaint with OCR. More significantly, the hearing officer concluded that the parents’ proposal for a peanut/tree nut free classroom comported with the commensurate opportunity standard of the Section 504 FAPE regulation and was not unreasonable, that is a fundamental alteration. More specifically, she ordered five additional provisions to the student’s 504 plan, including, for example, the following:
Child must have access to all classroom activities such as the celebration of the Chinese New Year, accommodated accordingly. . . . Letter to parents of classmates must describe Student as a child that has a “life-threatening allergy”. . . . Provide an informational session to Parents and additional training to staff [promptly]. Provide an orientation to Student’s classmates regarding Student’s life-threatening peanut/tree nut allergy (p. 1138).
Finally, in dicta, or collateral commentary, the hearing officer suggested the possible addition of a related service: “Should Student and/or his family show increased distress over living/coping with this issue, the Student should be evaluated for counseling” (p. 1138).
More recently, a hearing officer in Pennsylvania similarly used the commensurate opportunity standard of the Section 504 FAPE regulation in upholding both the contents and implementation of a 504 plan that specified a rather long list of provisions for a student with life-threatening peanut and tree nut allergies. The parents sought much more extensive precautions for the student’s safety. However, the hearing officer focused on the “as adequately as” part of the FAPE regulation, explaining that that the proper basis for its application is objective, that is that of a reasonable, impartial individual, rather than subjective, that is the perceptions of the child’s parents, as adequate (Upper Dublin School District, 2010). On the other hand, the hearing officer partly ruled in the parents’ favor by ordering the district (a) to incorporate in the child’s 504 plan a few additional provisions that the district had put into practice, such as “permitting Student to go to the nurse for evaluation/treatment of possible allergic reactions at his request, as well as by referral from school staff”; and (b) to inform parent–teacher organization that the obligation to follow the child’s 504 plan extends to the after-school extracurricular program that it provides on campus for interested students, which include this child. The second, that is, “b,” part of this ruling is in clear contrast with the aforementioned Oregon hearing officer ruling, showing the “it depends” state of the law for such substantive issues.
Most recently, a hearing officer in Florida ruled that the parents’ requested accommodation for administration of insulin to child with diabetes was reasonable (School Board of Pinellas County, 2011). The district had raised safety arguments, but the hearing officer concluded that training staff members to administer the insulin was permissible under the state nurse practices act and reasonable under the circumstances.
Finally, OCR’s most recent policy interpretation, issued in January 2012, also warrants attention. For example, addressing what the district’s Section 504 FAPE obligation is to a child with a health condition that is in remission or fully mitigated in school, OCR offered this guidance: “If, as a result of a properly conducted evaluation, the school district determines that the student does not need special education or related services, the district is not required to provide aids or services” (OCR, 2012, Q11). Thus, under the ADAAA, eligibility is without mitigating measures, but—in OCR’s interpretation of these Amendments—FAPE is with mitigating measures.
Other Issues
Although not within the primary twin foci of eligibility and FAPE, other cases concerning students with health conditions fit within the umbrella of disability discrimination. For example, in a recent LOF, OCR concluded that a Georgia district engaged in disability harassment, which is within the scope of discrimination under Section 504. The discrimination was the district’s decision to continue to allow the sale of peanut products from vending machines after learning that exposure could be fatal to a student with various severe allergies, including peanuts (Catoosa County School District, 2009). As another example, in response to the complaint of the parent of an elementary school child with food allergies, including anaphylactic reactions to milk products, OCR found insufficient evidence for various claims of disability harassment and retaliation. However, OCR also concluded that an incident where the school nurse had the student stand in front of the class to discuss her allergies and her Epi-pen violated Section 504 (Pine-Richland School District, 2009). The nurse’s explanation was that she thought that the 504 plan and the parent had authorized this educational exercise. OCR found this explanation insufficient because the district had not obtained the requisite parental consent.
Additionally, a recent court decision illustrates Section 504’s and the ADA’s coverage of “retaliation” claims. In this case, the parent of a child with a peanut allergy, diabetes, and possible learning problems sued the district for retaliation. The parent had made requests for accommodations and had filed a complaint with OCR. She alleged that in response to these protected actions, the retaliation consisted of (a) the nurse’s resistance to the parent’s proposed accommodations for the child’s individual health plan and 504 plan, and (b) the district’s filing charges with the appropriate state agency for suspect medical abuse. The court issued a summary judgment, that is, decision without a trial, in favor of the district defendants, finding that the parent had not established the requisite elements for a retaliation case under Section 504 and the ADA, such as adverse action and causal connection ( A.C. v. Shelby County School District, 2011 ).
Finally, the case coverage in this relatively brief article would not be reasonably complete without acknowledging the California intermediate, appellate court’s decision, which is currently on appeal to the state’s highest court. The court ruled that state nurse practice act did not allow school personnel who were not licensed nurses to administer insulin to children with diabetes per the child’s IEP or 504 plan (American Nurses Association v. O’Connell, 2010). Contrary to the contention of the defendant state education agency, the court concluded that neither Section 504 nor the IDEA conflicted with, and thus preempted, this state law. The lack of a decision from California's highest court after the passage of two years is attributable in part to the difficulty of resolving these competing interests.
Ending the legal coverage where we started, the ADAAA poses an unsettling issue for FAPE. Specifically, although it is now clear that the Section 504 eligibility determination is without mitigating measures, it appears that the FAPE determination is with them. The arguable exception is for the related service of administration of medication. It is similarly arguable that if the health condition is in remission, the child may not have any educational needs for accommodations or related aids and services. Initially, reasonable professionals in knowledgeable teams will address these new issues, and ultimately the courts will resolve them.
Conclusion
The professional literature is relatively ample and up do date concerning serious student health conditions, except for the relevant and recent legal obligations under Section 504 and the ADA. As the primary resource and central role on school–parent teams, the school nurse needs the basis for finding and contributing legally defensible and practically feasible answers to not only eligibility but also FAPE for such students under Section 504 and the ADA.
For the legal side of such issues, the primary sources of authority start with the Section 504 and ADA legislation and regulations. However, they extend to the interpretations and investigations by OCR and the adjudications by impartial hearing officers and the courts. A useful lens to employ when examining these various rulings is the distinction between procedural issues, such as whether the district provided the parent with the requisite procedural safeguards notice, and substantive issues, such as whether the child is eligible under Section 504 and, if so, what level of FAPE Section 504 requires for the child. As a general matter, OCR focuses on procedural compliance; however, students with life-threatening health conditions may trigger its substantive scrutiny of eligibility or FAPE issues under the agency’s limited exception for “extraordinary circumstances.” In contrast, hearing officers and courts address both issues, often with particular attention to the substantive side of whether the individual child is eligible under Section 504 and what is the extent of the child’s FAPE entitlement, including any necessary related services. For FAPE, OCR interprets the applicable standard as commensurate opportunity in relation to the nondisabled children in the school district. In contrast, hearing officers and courts thus far have predominantly but not uniformly used reasonable accommodation as the measuring stick.
For the threshold issue of eligibility, which overlaps with the “child find” obligation of conducting an evaluation when the district has reason to suspect that the child may be entitled to FAPE under Section 504, the district must convene a knowledgeable team to the careful, individualized determination of whether the child meets the three essential criteria–(a) a health condition that (b) substantially limits (c) a major life activity. In light of the ADAAA’s expansion of the “substantially limits” and the “major life activity” in relation to students with serious health conditions, such as diabetes and food allergies, the school nurse plays a key role in fulfilling this evaluation obligation. Examples of the school nurse’s resource functions include (a) facilitating the screening of all students on health plans in relation to child find under Section 504, (b) obtaining parental consent and providing procedural safeguards under Section 504, and (c) securing relevant medical information in relation to the various pertinent privacy protections.
A review of the OCR interpretations and adjudicative decisions specific to eligibility of students with health problems suggests the need to avoid the IDEA orientation of limiting consideration to health and other impairments that impact on learning. Instead, a knowledgeable team needs to focus on the effect of not only conditions such as diabetes and food allergies on eating but also less well-known health conditions on bowel and other major bodily functions. The ultimate key is to find the reasonable balance between under- and overidentification on a case-by-case basis.
For the issue of FAPE, which is even more difficult in the current period of austere school resources, school nurses need to remind other pertinent personnel that the Section 504 obligation is not limited to accommodations but extends also to “related aids and services.” Another way the school nurse can foster understanding and compliance with the requirements for FAPE under Section 504 is by helping teachers, administrators, and parents with two subtle but significant distinctions: (a) between “double-covered” students, that is those with IEPs, and “504-only” students, that is those not also covered by the IDEA, and (b) between procedural and substantive obligations under Section 5094 and the ADA.
The FAPE-related procedures include the requisite notice for the initial and any subsequent significant change in educational placement. OCR cases also reveal the need for team-based, rather than unilateral administrative, determinations of FAPE for each individual eligible child for all curricular and extracurricular activities and proper implementation of 504 plans as well as IEPs.
On the substantive side of FAPE, school nurses need to disseminate awareness of the competing and not completely settled standards—reasonable accommodation and commensurate opportunity. Both standards require consideration of the eligible individual student in relation to the larger context, but the first one is based on the district’s resources and mission while the frame of reference for the second one is based on the student’s nondisabled peers. Given the ultimate ambiguity and potentially polar perspectives of the parent and the school officials, the school nurse can serve as the mediating resources to help resolve disputes via effective communication rather than legal disputation. For adjudications, the legal example thus far is the extent of the FAPE entitlement for children with peanut and tree nut allergies. The hearing officer and court answers vary based on not only the individual circumstances and substantive standard but also the particular adjudicator.
The recent tragic deaths of students with asthma attacks and anaphylaxis in the schools serve as reminders of the need for policies, procedures, and practices that consider both legal requirements and professional best practice. The school nurse also plays a critical role at both of these levels, being a health professional and a team member who is knowledgeable as to the relevant legal requirements of Section 504 and the pertinent prophylaxis of well-reasoned due care.
In conclusion, here are some practical recommendations for school nurses. First, as a matter of best practice, the school nurse should endeavor to stay current with the latest developments of both Section 504 and student health problems. For example, regular communications with school administrators and other colleagues who attend relevant continuing education programs and who receive Internet information concerning these issues is one way to maintain legal and professional currency. Second, prioritize students with life-threatening conditions, ensuring that your school has proper emergency procedures, regular review of individual 504 plans, and proactive steps for student safety. Getting the parent informed and involved with these processes is key. Third, the school nurse should examine her list of students with health care plans, carefully including the student’s attendance and/or health office visits in the screening process. Fourth, when evaluation is necessary, obtain parental consent, gather necessary medical information, complete the process promptly, and provide the parents with the Section 504 procedural safeguards notice. Fifth, be proactive by discussing and determining on a team basis whether the child needs not only accommodations but also related aids and services according to Section 504’s FAPE standards. Sixth, adequate documentation and, to the extent necessary, consultations are advisable. Finally, news of medically related student deaths can serve as a collective learning experience. These tragedies present, reflective opportunities, triggering where you as a school nurse, should review policies, procedures and standards for prevention in your school setting. These difficult moments are prime times for health education—providing school personnel with a copy of the news article, posting proactive posters of emergency procedures in teacher’s lounges, and sending an all-district e-mail with health alerts and copies of policies for review. In sum, school nurses play a central role in terms of knowledge and practice of Section `504 and student health conditions.
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.