www.stnonline.com
• Te ADA Amendments Act of 2008 broadens the inter- pretation of disability.
• A substantial impairment in learning has never been nec- essary for a student to be eligible for Section 504 protec- tion. As early as 1994, OCR wrote, “Students may have a disability that in no way affects their ability to learn, yet they may need extra help of some kind from the system to access learning.” Te provision of transportation is of- ten the ticket to that access. Tere will be renewed insis- tence that school districts recognize that, under Section 504, the related service of transportation may be neces- sary even if no other special services are warranted. A Section 504 plan is the appropriate vehicle to reflect the provision of necessary transportation.
•
Some lawyers whose school district clients have already reported that OCR investigators are paying special at- tention to districts’ failure to evaluate students for Sec- tion 504 eligibility. Te duty to evaluate students who are suspected of needing special education or related services exists regardless of whether the parent requests an evaluation. A 2008 North Carolina case hints at the clues that a district should have been on notice of a potential disability. OCR said that the combination of a student’s chronic tardiness to the bus stop, being sus- pended from the school bus on several occasions for various offenses, together with poor performance and 2005 evaluations showing the student was at risk for ADHD, were all indicators.
Intentional discrimination leads to claim for money damages,
or at least compensatory education (deliberate indifference, bad faith, gross misjudgment.) Examples are school absences for 17 days at the beginning of the school year resulted in a defendant’s reckless disregard of the child’s educational needs. Or parents are unable to transport because of mother’s medical condition — a district was aware for four months prior to start of school year that, if it didn’t provide the student with transportation to his spe- cial needs placement, the student couldn’t continue enrollment there. Te school district didn’t prepare for his return to school [L.T. v. Mansfield Township S.D., 109 LRP 15882 March 17, 2009]. Deliberate indifference for failure to provide a reasonable accom- modation will follow if plaintiff shows: (1) plaintiff requested the accommodation; (2) it was “plainly obvious” that the accommo- dation was reasonable and necessary [A.P. v. Anoka-Hennepin ISD No. 11, U.S. Dist Ct Minn, 49 IDELR 245, March 17, 2008]. With more and more districts cutting back on home-to-school
transportation, school districts must be alert to special educa- tion students’ eligibility for the related service of transportation. Even if the school district doesn’t provide transportation to the general student population, it must decide, on an individual ba- sis, whether or not the special education student requires trans- portation as a related service to benefit from special ed (34 CFR 300.34). Under Section 504 it is possible for a student to require transportation on basis of his disability to benefit from a pro- gram of regular education (34 CFR 104.3). Question 21 of OCR’s FAQs confirms that “As of January 1,
2009, school districts, in determining whether a student has a phys- ical or mental impairment that substantially limits that student in a major life activity, must not consider the ameliorating effects of any mitigating measures that student is using. Tis is a change from prior law.” Tis change may mean more students on Section 504 plans and a closer assessment, as a result, of their need for transpor- tation. Some of the questions that can be raised include:
• •
If a student is learning satisfactorily but has trouble con- centrating due to a physical or mental impairment: ADHD although completely controlled with medication.
If you always see the student “mitigated,” how can you assess what he’d be like if unmitigated — could lead to over-identification.
• And, as a matter of civil rights, you have an obligation un- der the ADA to ensure equal opportunity for people with disabilities. Tat duty extends to any plans you may have for evacuating buildings, communicating with the univer- sity community in an emergency, sheltering students or the community or providing transportation in an emergency.
SECTION 504 IS NOT AUTOMATIC While it may seem that you’d better just give up and give in, OCR is emphatic that:
• Tere is no impairment that, in and of itself is a disability. • Te impairment must substantially limit one or more ma- jor life activities in order to be considered a disability un- der Section 504. Temporary impairments must be evalu- ated on a case-by-case basis, considering both duration and extent of impact, to be a Section 504 disability.
• A medical diagnosis does not suffice as an evaluation for Section 504 eligibility.
• A medical diagnosis is one source that may be considered in the evaluation process. Section 504 regulations require school districts to draw upon a variety of sources in inter- preting evaluation data and making decisions about services.
• A medical diagnosis of an illness doesn’t automatically mean a child receives transportation or any other service.
• Te illness must cause a substantial limitation on the stu- dent’s ability to learn or, in the case of transportation, to access education.
But, remember this: if a student does have an impairment that
substantially limits his or her ability to access education, the school district must make an individualized determination of the child’s need for transportation, appropriate for that child, at no cost to the parent. n
Peggy Burns is an attorney, consultant and owner of Educa-
tion Compliance Group, Inc.,
www.educationcompliancegroup. com. She is the editor of Legal Routes and developer of four video training programs, including the new “Te Road to Compliance for Special Needs Drivers,” and “Putting the Brakes on Harassment: Training for School Bus Drivers.” Peggy can be reached at 888/604- 6141 and by email to
ecginc@qwestoffice.net.
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