Federal and State Laws Affecting the Rights of Students...

Federal and State Laws Affecting the Rights of Students with Diabetes

Federal and State Laws Affecting the Rights of Students with Diabetes
American Diabetes Association

Section 504 of the Rehabilitation Act of 1973
No otherwise qualified individual with [a disability] in the United States . . . shall, solely by reason of . . . [disability], be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

Purpose
Section 504 is a federal civil rights law to prohibit discrimination on the basis of disability. The law also prohibits retaliation for asserting the right not to be discriminated against.

What children are covered?
To be protected by Section 504 the student must have a disability defined as:

a physical or mental impairment that substantially limits one or more of major life activities;
a record of such an impairment, or
being regarded as having such an impairment.
What schools are covered?
Section 504 applies to all public schools and to private schools that receive federal financial assistance.

What must school provide?
Public Elementary and Secondary Schools must:

Identify children with disabilities;
Provide a “free appropriate public education” (FAPE) to each child with a disability. This means providing regular or special education and related aids and services designed to meet the individual educational needs of students with disabilities as adequately as the needs of students without disabilities are met;
Educate children with disabilities with other students as much as possible;
Allow parents/guardians to participate meaningfully in decisions regarding their children; and
Afford children with disabilities an equal opportunity to participate in nonacademic and extracurricular services and activities.
Section 504 Plans
Covered schools are required to provide needed aids and services in order to allow students with disabilities to receive an education that is comparable to that provided to students without disabilities. Parents/guardians should document this accommodation in a Section 504 Plan.

What should be in a Section 504 Plan?
Each child with diabetes will have his or her own needs and a Section 504 Plan must be individually developed. However, all plans should include assurance that there are staff members trained to recognize hypoglycemia and hyperglycemia and to respond in accordance with the directions in the child's Diabetes Medical Management Plan.

Model Section 504 Plan for a student with diabetes

Other typical accommodations include:

Assuring that there is staff trained to check blood glucose levels and administer insulin and glucagon.
Assuring that any staff member with immediate custodial care of the child is trained to recognize high and low blood sugar levels and knows what he or she is supposed to do in response. This would include staff members such as teachers, coaches, and bus drivers.
Allowing the child to test his/her blood sugar level and take necessary actions in response such as administering insulin, or, if the child is not yet able to do so, provisions for who will perform this task.
Provisions for where blood sugar levels will be tested and insulin administered.
Insuring full participation in all sports, extracurricular activities, and field trips, with the necessary assistance and/or supervision provided.
Eating whenever and wherever necessary, including eating lunch at an appropriate time with enough time to finish eating.
Taking extra trips to the bathroom or water fountain.
Permitting extra absences for medical appointments and sick days when necessary.
Making academic adjustments for classroom time missed for medical appointments, testing, or because of periods of high or low blood sugar.
Diabetes Medical Management Plan
This is the document signed by the child’s treating health care team that describes the health care services that the child is to receive at school. It may be called a Diabetes Medical Management Plan, doctor’s orders, or have another name. The plan should detail care such as:

When blood glucose checking should occur.
That child's usual pattern of symptoms for hypoglycemia and hyperglycemia.
What actions should be taken in response to different blood sugar levels including the type and amount of insulin or food to be given and when glucagon should be administered.
When the child should eat and necessary details on amount and content of meals and snacks.
Any special changes that should be made in response to exercise.
What diabetes care tasks the student is able to do on his/her own.
Emergency numbers to reach the parents/guardians and health care provider and when each should be called.
Model Diabetes Medical Management Plan

Process under Section 504

Determine eligibility
Prepare a 504 Plan
If problems, then:
Educate
Negotiate
Grievance Procedure
Impartial Hearing
State Complaint Resolution Process
Federal Complaint Resolution Process (OCR)
Federal court (need not exhaust administrative remedies first)
The Americans with Disabilities Act
Purpose
The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against qualified individuals with disabilities. The law also prohibits retaliation for asserting the right not to be discriminated against.

That children are covered?
The standard is the same as Section 504 of the Rehabilitation Act or other parts of the ADA (although factors to take into account are different than in the employment area).

What schools are covered?
All public and private schools and day care centers except those run by religious institutions.

What must the school provide?
The school must not discriminate against a child with a disability and is required to make reasonable changes in its practices and policies to avoid discrimination and to afford children with disabilities an equal opportunity to participate unless doing so would impose an "undue burden."

Process under the Americans with Disabilities Act

Determine eligibility
If problems, then:
Educate
Negotiate
I f the school receives federal funds, parents/guardians can either file a complaint with Office of Civil Rights (as with claims under Section 504) or file a lawsuit directly in court.
If the school doesn’t receive federal funds, parents/guardians can either file a complaint with the United States Department of Justice or file a lawsuit directly in court.
Protections for Parents/Guardians
The Americans with Disabilities Act protects parents/guardians against firing and other adverse employment actions taken because of their child’s disability. Usually, this law does not provide for leave to care for a child or to attend meetings or hearings, but the employer may not treat an employee differently because his or her child has a disability. Therefore, if paid or unpaid leave is provided for other personal or family reasons, the employer cannot deny similar leave just because the employee needs the time for reasons related to a child’s disability.

State anti-discrimination laws
States also have anti-discrimination laws that may provide additional protections for students with diabetes. Some, for example, have much more extensive definitions of who is covered by the law.

Individuals with Disabilities Education Act
Purpose
The Individuals with Disabilities Education Act (IDEA) is a federal law that requires states to provide a "free, appropriate public education" to children with disabilities so they can be educated to the greatest extent possible along with all other children. Qualifying children are entitled to special education and related services at no cost to their parents/guardians.

What children are covered?
To receive services under IDEA, a child with diabetes must show that he or she needs special education and related services in order to benefit from an education. An evaluation of the child must show that, because of the child's diabetes (or other qualifying disability), the child has limited strength, vitality, or alertness that adversely affects the child's educational performance. Simply put, the diabetes must make it more difficult for the child to learn.

For example, it is often difficult to learn when blood sugar levels are either too high or too low. If a child with diabetes is having difficulty managing his or her blood sugar level, this may hurt how well the child does in school. Academic progress might also suffer if a child with diabetes misses a significant amount of classroom instruction each day in order to attend to diabetes care tasks.

What help does a child receive under IDEA?

Special Education
Special education means adapting what is taught and how it is taught in order to address the child's unique needs. The child must have access to the same general curriculum (or coursework) so that the child can meet the same educational standards (tests and other measurements used to pass children from grade to grade) that apply to all children in that school district.

For example, a child with diabetes might need a tutor or a classroom aide to help the child catch up with missed schoolwork.

Related Services
Related services include such things as school health services. For example, a child with diabetes requires that there be trained staff available at all times who are knowledgeable about diabetes and the child's specific plan for diabetes care. Such staff must know how to recognize and treat high and low blood sugar levels. Younger children may require assistance in blood glucose checking and administering insulin.

Least Restrictive Environment
IDEA requires that children with disabilities be educated in the least restrictive environment (LRE). This means that, to the maximum extent appropriate, children with disabilities are educated with children who do not have disabilities..

Individualized Education Program
An Individualized Education Program or "IEP" is the document that sets out what the school is going to do to meet the child's individual educational needs. There are a lot of specific rules about developing an IEP, reviewing it (which must be done at least once a year), and what an IEP must contain.

Developing an IEP
The IEP must be developed with input from the child's parents/guardians, at least one regular education teacher, at least one of the child's special education teachers or providers, a representative of the school district who is qualified, knowledgeable, and authorized to commit the district to the delivery of resources to the child, a qualified professional who can interpret the evaluation of the child, others at the discretion of the parent or the school district, and, where appropriate, the child with a disability. This is the child's IEP Team.

Contents of an IEP
An IEP must contain a number of specific provisions including:

A statement of the child's present levels of performance, including how the child's disability affects involvement and progress in the general curriculum;
A statement of measurable annual goals, including benchmarks or short-term objectives;
A statement of the special education and supplementary aids and services to be provided;
A statement of program modifications or supports for school personnel that will be provided;
A statement of any modifications needed for the child to participate in district-wide tests or other assessments; and
A statement of how the child's progress toward the annual goals will be measured and how parents/guardians will be regularly informed of progress toward goals.
Specifically, with regard to diabetes, the IEP will contain the same types of related aids and services discussed under Section 504 Plans (above at page 2).

Diabetes Medical Management Plan
Medical orders from the child’s treating healthcare team, as described under Section 504 (above at page 3), are also needed for a child with an IEP.

Parents/Guardians' rights under IDEA
One reason some parents/guardians like IDEA is that the law offers parents/guardians numerous protections. These include:

Parent/guardian consent before evaluation (or the district must request a due process hearing from the state education agency).
Parent/guardian involvement including inspecting and reviewing all of their child's education records and participating in meetings about their child.
Notice to parents/guardians of decisions and plans before the district puts the proposed actions into effect.
Process under IDEA

Determine eligibility
Prepare a IEP
If problems, then:
Educate
Negotiate
Due process procedures through school district
Due process appeals through the state education agency (mediation and due process hearing)
Administrative complaint process
Federal court (must exhaust administrative remedies first)
State Rules
States are permitted to establish laws, guidelines and policies as long as they don't conflict with the requirements of federal law. Therefore, it is necessary to be familiar with the rules that apply in your state.

Family and Medical Leave Act (FMLA)
Purpose
The Family and Medical Leave Act is a federal law that requires most private employers with over 50 employees and most government employers to provide up to 12 weeks of unpaid leave per year because of the worker's, or an immediate family member's, serious health condition. This leave can be used by a parent/guardian to provide care for a student with diabetes.

Who is covered?
To be eligible to use FMLA, the employee must:

Have at least 12 months of job seniority;
Have worked no less than 1,250 hours for the employer during the prior 12 months;
Work for an employer having at least 50 employees within 75 miles of his/her jobsite or the location the employee reports to; and
Intend to return to his or her job at the end of the leave period.
What type of leave is covered?
Leave is permitted for absences of up to 12 weeks per year. This leave can be used for routine appointments, when a child cannot attend school because of diabetes, or to respond to an emergency. FMLA, however, does not relieve schools of their obligations to provide diabetes care to students.

What must the employer provide?
FMLA does not require the employer to provide paid leave. It does, however, prohibit the employer from discharging or demoting an employee who takes FMLA leave.

State family and medical leave laws
Some states also have family and medical leave laws that may provide additional protections for parents/guardians of students with diabetes. Some, for example, provide coverage for employees of smaller employers. State law should always be consulted for additional protections.

State Laws that Impact Diabetes Care
In some states, state law restricts who can provide diabetes care in the school setting and whether a student with diabetes is permitted to self-manage his or her disease. In other states it is unclear what state law provides – resulting in inconsistent care from district to district and school to school.

While federal law still protects these students – and schools are ultimately responsible for meeting their students’ needs under federal law – the result is a number of road blocks that stand in the way of achieving diabetes management at school and school-related activities. In response, the American Diabetes Association and other diabetes advocates have worked to pass school legislation that specifically provides for the care that students with diabetes need.

Information on state laws

Always consult with state laws and regulations, including the state nurse practice act and department of education and health regulations, to determine what state laws and regulations are applicable.