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Addressing the Needs of Students with Disabilities in ...

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Enforcing Section 504 and the Americans with Disabilities Act for Children with Diabetes in Schools and Other Settings
SarahFech-Baughman, American Diabetes AssociationSethPackrone, Disability Rights Advocates2019 Jacobus tenBroek Law Symposium
I. Overview of Section 504 and the ADAII. Hurdles to Enforcing Section 504 and the ADAIII. Strategies for Individual and Systemic ReformIV. Relevant Litigation by the ADA and DRAIV. Discussion: Challenges to Enforcing Section 504 and the ADA
Slide 2: Presentation Outline
The Individuals with Disabilities Education Act (“IDEA”) has important limitations:It does not apply to all students with disabilities who need servicesIt only applies to public schoolsSome services that students need cannot be provided through an Individualized Education Program
Slide 3: Overview of Section 504 and the ADA
The ADA offers important protections for children with disabilities:Title II of the ADA’s prohibitions against discrimination apply in schools and other settings that provide services to children,see, e.g., 28 C.F.R.§ 35.130(b)(1), (2)Service Animals28 C.F.R. § 35.136Cullman County (AL) Schools, 118 LRP 4838 (Sept. 2017)
Slide 4: Overview of Section 504 and the ADA
Like the ADA, Section 504 fills in where the IDEA does not apply:34 C.F.R. § 104.31 “preschool, elementary, secondary, and adult education programs or activities that receive Federal financial assistance”§ 104.33 FAPE “appropriate education is the provision of 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 non handicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of §§ 104.34 (LRE), 104.35 (evaluation/placement), and 104.36 (procedural rights)
Slide 5: Overview of Section 504 and the ADA
Section 504 and the ADA are particularly important for children with certain disabilities:Disabilities that may require modification to the physical environment: Blindness/low vision, disabilities affecting mobilityDisabilities that require medication administration during school: diabetes, AD/HD, severe allergy, asthma, epilepsy, cerebral palsy, HIV
Slide 6: Overview of Section 504 and the ADA
Some of the most important differences between Section 504/ADA and IDEA are:To qualify:504 person with a disabilityIDEA person with a disability* who, by reason thereof, requires special education and related servicesThe IEP process vs. the 504 processProcedural protections not as specific under 50434 C.F.R. § 104.36 (Section 504) v. 34 C.F.R. § 300.121 (IDEA)Definition of FAPE roughly the same34 C.F.R. § 104.33 v. 34 C.F.R. § 300.17
Slide 7: Overview of Section 504 and the ADA
Despite the importance of Section 504 and the ADA for certain students, they are underenforced:Schools have less expertise and formalized processes for seeking accommodations under these lawsIn other settings, including childcare centers and summer camps, the lack of formalized due process routes for rights holders contributes to underenforcement
Slide 8: Hurdles to Enforcing Section 504 and the ADA
State law considerations:Nurse Practice Act:Ambiguous: (CA) Cal. Bus. & Prof. Code § 2700 et seqClear and Restrictive: (MA; NY) N.Y. Educ. Law § 6900 et seq; 105 CMR 210.004State laws in the education or childcare codes creating an exception to the Nurse Practice Act:Can be directed at specific disabilities, medications, or medication delivery routesE.g. Pennsylvania 24 P.S. § 14-1414.1-1414.2 (Epi and inhalers); 24 P.S. § 14-1414.3–1414.6 (diabetes)Federal preemption arguments
Slide 9: Hurdles to Enforcing Section 504 and the ADA
The effects can be devastating for families of children with diabetes:Exclusion of children with diabetes from childcare, summer camps, and school-related activitiesThe burden shifts to parents to provide care, with dire employment and financial consequencesChildren’s health is at risk without services
Slide 10: Hurdles to Enforcing Section 504 and the ADA
This is an area of huge need and individual and systemic advocacy are both necessary:Types of individual advocacy include informal demand letters/negotiations, Office of Civil Rights Complaints, and individual due process casesSystemic advocacy includes efforts to change state laws, Department of Justice actions, and impact and class action litigation
Slide 11: Strategies for Individual and Systemic Reform
The ADA has clearly laid out guidelines that can be used in individual and/or systemic advocacy:ADA position statements for school and childcare settings fully describe best practices for diabetes care—good resource for negotiation and to support expert witnessesHighlights include:3 levels of training (school setting)In general, nurse coordinating care with lay staff trained to competently watch for issues and step in if nurse is unavailableThe more people who are trained, the better (more likelihood of coverage on fieldtrips, through staff changes, etc.)
Slide 12: Strategies for Individual and Systemic Reform
The ADA can assist you with individual advocacy:Staff attorneys available to provide information and referrals to individuals facing discriminationDir. of LitigationConsult with attorneys litigating on behalf of individualsConnect practitioners with expert witnessesSubmit amicus briefs
Slide 13: Strategies for Individual and Systemic Reform
ADA and DRA have partnered together on systemic reform efforts:Know-your-rights presentations to parents/other stakeholdersLaw reform efforts at the state levelTargeted negotiation efforts with entities with illegal policiesLitigation against national and citywide entities on behalf of children with diabetes
Slide 14: Strategies for Individual and Systemic Reform
There are pros and cons to individual reform efforts:Reasonable likelihood of success in the negotiation stage (in the absence of entity/schoolwide policy)Faster route when there are impending health or financial consequencesIf negotiation fails, arguable need to exhaust underFry
Slide 15: Strategies for Individual and Systemic Reform
There are pros and cons to systemic reform efforts:Seek policy change rather than accommodations to obviate the need for further actions by other studentsStrong arguments for excusing exhaustionMootness
Slide 16: Strategies for Individual and Systemic Reform
K.C. v. O’Connell, 3:05-cv-04077;ANA v. O’Connell,304 P.3d 1038 (Cal. 2013)Pair of lawsuits fighting over ambiguity in CA state law about who can administer insulinADA filed suit with co-plaintiff families (K.C., et al.) to enjoin CA to issue a directive allowing lay staff to administer insulinSettled with the state and school district defendants allowing unlicensed, trained personnel to administer insulin when a school nurse was not available
Slide 17: Relevant Litigation by the ADA and DRA
K.C. v. O’Connell, 3:05-cv-04077;ANA v. O’Connell,304 P.3d 1038 (Cal. 2013)American Nurse’s Assoc. filed suit in CA state court (ANA), arguing that theK.C.directive violated state lawCA Supreme Court ultimately determined state law permitted lay administration of insulinLessons learned:CA nurse shortage contributed to this victoryNurse shortages exist across the country
Slide 18: Relevant Litigation by the ADA and DRA
American Diabetes Association v. US Dep’t of the Army (formerly M.W. v. U.S. Dep’t of the Army)(5:16-cv-04051, N.D. CAL., 2016) (9thCircuit, pending)DRA filed suit on behalf of the ADA and an individual child (M.W.) challenging the Army’s policy not permitting staff to administer necessary care (insulin administration, glucagon administration) in its childcare programsThe suit sought a national policy change under Section 504Given the geographic isolation of many military bases, parents across the country reported having to quit their jobs to provide care for their children
Slide 19: Relevant Litigation by the ADA and DRA
ADA v. US Dep’t of the Army (formerly M.W. v. U.S. Dep’t of the Army)(5:16-cv-04051, N.D. CAL., 2016) (9thCircuit, pending) (cont.)In December of 2017, the case was dismissed on standing/mootness groundsAn appeal is pending in the 9thCircuitLessons learned
Slide 20: Relevant Litigation by the ADA and DRA
M.F., et al., v. New York City Department of Education, et al.,1:18-cv-06109 (E.D.N.Y 2018)The ADA and DRA filed a putative class action on behalf of the ADA and three individual children who were being denied basic diabetes care at school and school-related activitiesThe Complaint alleges systemic violations of Section 504, the ADA, and the New York City Human Rights Law, including:Failure to have care in place at the start of the year, forcing parents to provide care at school for weeks or even months;Exclusion of students from field trips, school breakfasts, and after-school activities;Forcing students to unnecessarily miss class for routine care; andFailure to train staff to administer diabetes care
Slide 21: Relevant Litigation by the ADA and DRA
M.F., et al., v. New York City Department of Education, et al.,1:18-cv-06109(E.D.N.Y 2018) (cont.)Parents are left to fill in the gaps for the school district’s failures to provide care:Parents have to be on-call to provide care during the school hours; andParents frequently have to attend field trips as a condition of their child’s attendanceChallenges to reform
Slide 22:Relevant Litigation by the ADA and DRA
M.F., et al., v. New York City Department of Education, et al., 1:18-cv-06109 (E.D.N.Y 2018) (cont.)Current status:The litigation is stayed while the parties seek to negotiate a settlement through Structured NegotiationsLessons learned
Slide 23:Relevant Litigation by the ADA and DRA
There are legal challenges to individual and systemic advocacy:Widespread ignorance of the lawConflicting state laws and dearth of case lawExhaustionClass certification
Slide 24:Discussion: Challenges to Enforcing Section 504 and the ADA
There are practical challenges to individual and systemic advocacy:Underdeveloped Section 504 and ADA processesIdentifying impacted students and familiesStereotypes about diabetesThe urgent need for individualized remedies
Slide 25:Discussion: Challenges to Enforcing Section 504 and the ADA
Please contact Sarah atsfech@diabetes.orgor Seth atspackrone@dralegal.orgto discuss these issues in your state or to share strategies and results. Thank you!
Thank you!

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Addressing the Needs of Students with Disabilities in ...