Enforcing Section 504 and the Americans with Disabilities Act for Children with Diabetes - PowerPoint Presentation

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Enforcing Section 504 and the Americans with Disabilities Act for Children with Diabetes in Schools and Other Settings

Sarah

Fech

-Baughman, American Diabetes Association

Seth

Packrone

, Disability Rights Advocates

2019 Jacobus tenBroek Law Symposium

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I. Overview of Section 504 and the ADA

II. Hurdles to Enforcing Section 504 and the ADA

III. Strategies for Individual and Systemic ReformIV. Relevant Litigation by the ADA and DRA IV. Discussion: Challenges to Enforcing Section 504 and the ADA

Slide 2: Presentation Outline

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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 schools Some services that students need cannot be provided through an Individualized Education Program

Slide 3: Overview of Section 504 and the ADA

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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 Animals 28 C.F.R. § 35.136Cullman County (AL) Schools, 118 LRP 4838 (Sept. 2017)

Slide 4: Overview of Section 504 and the ADA

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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

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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 mobility

Disabilities 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

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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 process

Procedural protections not as specific under 504

34 C.F.R. § 104.36 (Section 504) v. 34 C.F.R. § 300.121 (IDEA)

Definition of FAPE roughly the same

34 C.F.R. § 104.33 v. 34 C.F.R. § 300.17

Slide 7: Overview of Section 504 and the ADA

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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 laws In 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

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State law considerations:Nurse Practice Act:

Ambiguous: (CA) Cal. Bus. & Prof. Code § 2700 et seq

Clear 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

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The effects can be devastating for families of children with diabetes:

Exclusion of children with diabetes from childcare, summer camps, and school-related activities

The burden shifts to parents to provide care, with dire employment and financial consequences Children’s health is at risk without services

Slide 10: Hurdles to Enforcing Section 504 and the ADA

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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 cases

Systemic 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

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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 witnesses

Highlights 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 unavailable

The 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

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The ADA can assist you with individual advocacy: Staff attorneys available to provide information and referrals to individuals facing discrimination

Dir. of Litigation

Consult with attorneys litigating on behalf of individualsConnect practitioners with expert witnessesSubmit amicus briefs

Slide 13: Strategies for Individual and Systemic Reform

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ADA and DRA have partnered together on systemic reform efforts: Know-your-rights presentations to parents/other stakeholders

Law reform efforts at the state level

Targeted negotiation efforts with entities with illegal policies Litigation against national and citywide entities on behalf of children with diabetes Slide 14: Strategies for Individual and Systemic Reform

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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 consequences If negotiation fails, arguable need to exhaust under Fry

Slide 15: Strategies for Individual and Systemic Reform

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There are pros and cons to systemic reform efforts:

Seek policy change rather than accommodations to obviate the need for further actions by other students

Strong arguments for excusing exhaustion Mootness

Slide 16: Strategies for Individual and Systemic Reform

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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 insulin

Settled 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

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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 the K.C. directive violated state lawCA Supreme Court ultimately determined state law permitted lay administration of insulin

Lessons learned:

CA nurse shortage contributed to this victory

Nurse shortages exist across the country

Slide 18: Relevant Litigation by the ADA and DRA

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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) (9

th Circuit, 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 504 Given 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

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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) (9

th

Circuit, pending) (cont.)In December of 2017, the case was dismissed on standing/mootness grounds An appeal is pending in the 9th Circuit Lessons learned

Slide 20: Relevant Litigation by the ADA and DRA

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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 activities

The 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; and

Failure to train staff to administer diabetes care

Slide 21: Relevant Litigation by the ADA and DRA

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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 attendance Challenges to reform

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Relevant Litigation by the ADA and DRA

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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

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There are legal challenges to individual and systemic advocacy: Widespread ignorance of the law

Conflicting state laws and dearth of case law

Exhaustion Class certificationSlide 24:

Discussion: Challenges to Enforcing Section 504 and the ADA

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There are practical challenges to individual and systemic advocacy: Underdeveloped Section 504 and ADA processes

Identifying impacted students and families

Stereotypes about diabetes The urgent need for individualized remedies

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Discussion: Challenges to Enforcing Section 504 and the ADA

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Please contact Sarah at sfech@diabetes.org or Seth at

spackrone@dralegal.org

to discuss these issues in your state or to share strategies and results. Thank you! Thank you!