A new agreement between the federal Education Department and the Memphis, Tenn., school district ends a close look at whether the district is properly evaluating student with allergies, asthma, diabetes, and other health problems for possible protection under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act.
The Education Department’s office for civil rights was investigating also to determine if there was a difference in whether and what services students received based on their race.
The civil rights office recently issued guidance attempting to clarify which students should be protected under Section 504, and encouraged districts to consider students, including those with health impairments, for plans under the law, especially in cases where students don’t qualify for special education services under separate federal laws.
In Memphis, before the agency completed its investigation, the district said it would:
•Contact parents of all students to inform them of the district’s obligation to evaluate students who, because of disability, need or are believed to need special education or related services. If a student currently has a health plan, the district will provide parents with information about the student’s possible rights to evaluation, placement, and procedural safeguards. A health plan doesn’t go far enough if it doesn’t incorporate these rights.
•Provide all parents with printed information during the fall 2012 registration about the district’s obligation to evaluate students with health-related concerns, including students with existing health plan.
•Revise and implement policies and procedures to ensure appropriate and prompt identification, evaluation, and placement of students with disabilities, including students with health concerns such as food allergies, asthma and diabetes and other physical or mental conditions that may affect major life activities.
•Train all district personnel involved in the referral, identification, evaluation, and placement of students with disabilities under federal law.
The civil rights office guidance was spurred by complaints and school districts’ requests for technical assistance. One 2009 case involved an Ohio student with a nut allergy. The school district decided the student was not protected under federal disability laws. The office for civil rights found that the district wasn’t complying with the new law because the district’s written policies said a student whose impairment does not limit learning is not entitled to a Section 504 plan. The new OCR guidance says districts may have to change their policies and procedures to adhere to federal disability law, which is what the Ohio district was ordered to do.
The guidance, issued in January, is clear that any number of conditions that significantly limit a “major life activity,” including sleeping, standing, and walking, or affect a major bodily function, such as those of the bladder, the respiratory system, or the immune system, could trigger protection under the amendments to the Americans with Disabilities Act.