Schools must consider the interplay between individual health care plans for students and federal disability law

By David A. Kane

Despite addressing students’ individual medical needs in good faith, Rhode Island and Massachusetts schools may nonetheless violate federal law by failing to consider and implement an accommodation plan under Section 504 of the Rehabilitation Act of 1973.

In a series of decisions, the Office for Civil Rights (OCR) of the Department of Health and Human Services has ruled that various schools across the country have violated Section 504, even after appropriately developing Individual Health Care Plans (IHCP) for students with special medical needs.

The OCR is insisting that schools assess whether a student is entitled to a Section 504 disability accommodation – even when an IHCP is in place – if the student has a medical condition that meets the definition of an individual with a disability.

It is a mistake to conclude that creating an IHCP categorically precludes the need to assess whether the student is also entitled to disability accommodation for special education and related services under Section 504.

Recent OCR Decisions

According to the OCR, school districts may not delay a Section 504 evaluation merely based on the existence of an IHCP, and they must evaluate a student within a reasonable time after learning he or she may have a qualifying disability. Opelika City (AL) School District, 111 LRP 47376 (OCR 2011).

Even though a school had developed an “individualized health management plan” to address the pancreatitis-related dietary needs of a student frequently absent from school due to the medical condition, the school’s plan fell short of complying with Section 504’s procedural protections. Springer (NM) Municipal Schools, 111 LRP 65450 (OCR 2011). According to the OCR, a plan to accommodate a student’s medical condition, even an IHCP, must be developed in accordance with procedures that satisfy the requirements of Section 504 (and implementing regulations at 34 CFR 104.34-36). Id.

In another ruling, the OCR rejected a school policy of providing IHCPs to students with a particular health issue, such as diabetes, as an acceptable alternative to determining the student’s eligibility for a 504 plan. Tyler (TX) Independent School District, 56 IDELR 24 (OCR 2010) (district was obligated under Section 504 to evaluate students with diabetes who may, because of their condition, require related aids and services).

A school cannot address the needs of students with medical conditions, such as diabetes, strictly through an IHCP, and only conduct a Section 504 evaluation when parents specifically request it. Forest Hills (OH) Local School District, 58 IDELR 114 (OCR 2011).

Section 504 Requirements: A Reminder

Section 504 protects qualified individuals from discrimination based on disability. It applies to any entity – including public schools – that receive financial assistance from any federal department or agency. An individual with a disability is someone with a physical or mental impairment that substantially limits one or more major life activities.

A school must determine whether a student has a physical or mental impairment that substantially limits a major life activity, and, if so, whether the student with an IHCP needs special education and related services in order to meet his or her educational needs as adequately as the needs of non-disabled students.

Reviewing Procedures and Practices

Many Rhode Island and Massachusetts schools have formal or informal practices and procedures that permit the school nurse and others to develop an IHCP as an acceptable approach to handling students with medical conditions. Usually the practice involves the school nurse and other school personnel determining, in coordination with a parent, what the student requires to treat the medical condition.

Schools should review their procedures and practices when dealing with student medical conditions to ensure that they align with Section 504 procedures.

When assessing a student with a documented medical condition, schools should not overlook the requirements of Section 504, which are:

  • Child find
  • Notice (Procedural Safeguards)
  • Evaluation
  • Determination of eligibility (protection under Section 504 and Free Appropriate Public Education)
  • Accommodations for eligible students

The OCR’s position is that, in addition to creating an IHCP, schools are also obliged to provide parents with a notice of their rights under Section 504, including procedural safeguards, evaluation, and disability accommodations.

David is of counsel in the Providence office of Barton Gilman LLP. He is a nationally recognized expert in education and disability law.