Disability Discrimination at School: Children With Health-Care Issues

Sometimes children with disabilities experience barriers to participation at school or discrimination due to their health-care-related needs. Here are some examples of discrimination against students with disabilities:

• Children who need medication, such as an asthma inhaler or insulin, during the school day may have difficulty accessing it.
• Children who are at risk of seizures or a severe allergic reaction may be prevented from participating in activities such as field trips.
• Children with severe disabilities that impact breathing, elimination, or other bodily functions may need an aide but the school neglects to provide one.
• Children with seizure disorders or autism may need to be accompanied by their service animal but the school may try to deny it.
• Children with vision or hearing difficulties may be left out of activities that the school believes they wouldn't be able to participate in.

Can Private Schools Discriminate Based on Disability?

Private schools (and all public schools) that accept federal funds must follow Section 504 of the Rehabilitation Act, which means they can't deny admission to potential students with disabilities or discriminate against current students based on a disability They must also follow the Americans with Disabilities Act (ADA). The ADA requires schools to grant reasonable accommodations in rules, policies, or practices that will allow students with disabilities to participate in school programs, including extracurricular activities.

Private schools that don't rely on federal funds only have to follow the ADA to make reasonable modifications. We'll discuss these laws below.

Laws That Protect Students With Disabilities From Discrimination

There are several federal laws that protect students with disabilities who have health-related needs, and there are steps families can take to help prevent discrimination from occurring. These laws generally require most schools to meet children's health-related needs during the school day and during school-sponsored extracurricular activities. In addition, they prevent schools from restricting the activities of students with disabilities due to speculation or to avoid having to address health-related needs.

The IDEA (IDEIA) Act

The Individuals with Disabilities in Education Improvement Act (IDEIA) ensures that public schools provide a free appropriate public education to children whose disabilities impact learning. (20 U.S.C. § 1400 et seq.) IDEIA, which was passed in 2004, is commonly referred to as IDEA, a 1997 education act that IDEIA replaced.

IDEIA requires that schools develop an Individualized Education Program (IEP) for each covered student. If a child with an IEP also has health problems, his related health needs can be addressed within the IEP. For example, the health section of a child's IEP may require additional time on tests to accommodate her learning disability or an extra snack break to help control her diabetes. For more information, see Nolo's article on IEP plans.

Section 504

Section 504 of the Rehabilitation Act (commonly called Section 504), prohibits public schools and private schools that receive federal funds from discriminating against children with physical or mental (cognitive, psychological, or behavioral) disabilities that significantly limit a major life activity. (29 U.S.C. § 701 et seq.)

If a student is covered by IDEIA, he will also be protected by Section 504. (The opposite is not true, however. A child who only has a health disability such as asthma will be covered by Section 504 but not the IDEIA. Children who only have health-related disabilities are not eligible for IEPs.)

Section 504 requires schools to develop Individual Health Plans (IHPs) to address any health-related needs students may have. So, for example, a child with a peanut allergy may need an IHP, which ensures school personnel can quickly give her an injection with an epi-pen in the event an allergen causes an anaphylactic reaction. For more information, see Nolo's article on Section 504.

ADA

The Americans with Disabilities Act (ADA) prohibits all public schools and most private schools from discriminating against children with disabilities. (42 U.S.C. 12101 et seq.) Because the IDEIA and Section 504 cover public schools, the ADA's protections are often superfluous (unnecessary) in a public school setting. In contrast, the ADA is the only protection available to children with disabilities in private schools that do not receive federal funds.

Unlike the IDEIA and Section 504, the ADA doesn't require schools to develop written plans like an IEP or IHP to address the needs of students with disabilities. At the same time, the ADA does require schools to grant reasonable modifications in rules, policies, and practices when necessary to allow students with disabilities to fully participate in school programs and services including extracurricular activities. For example, at a school that requires all student medications to be kept in the nurse's office, the ADA would generally require that a school grant an exception to students with asthma who frequently need to use their inhalers.

How Parents Can Protect Their Disabled Students' Rights

Other than schools that are operated by churches and receive no federal funding, almost all schools are covered by at least one of the laws discussed above. This means that children with disabilities who have health-related needs are legally protected in the vast majority of school settings. Unfortunately, the existence of potential legal protections does not mean that the protections will automatically be granted.

There are steps that parents of students with disabilities can take to help ensure their children receive the health-related protections they need in school.

Understand the Disability and Related Health Needs

Parents need to develop a thorough understanding of their child's disability and related health needs in order to explain those needs to a school. Speaking regularly with your child's doctor is generally the best way to develop a full understanding of a disability and related needs. It's important to know the diagnosis and symptoms (including frequency and duration) of your child's medical condition. You should also become very familiar with the treatment and medications recommended by your child's doctor, and whether it's likely your child will need treatment or medications during the school day and/or during school-sponsored extracurricular activities.

Help the School Understand the Disability and Related Health Needs

Parents need to let their child's school know in detail about the disability-related health needs their child may have while at school and when participating in school-sponsored extracurricular activities. As an initial step, parents can contact the special education coordinator, 504 coordinator, or other individuals designated by the school to handle disability-related health issues. (If it's not apparent who to contact, call the school's administration to ask who should be contacted.)

Parents who are requesting that a school accommodate their child's disability-related health needs should provide detailed information to the school regarding the physical or mental condition and the child's needs. You can request that the school add a health section to your child's IEP, develop an IHP (Individual Health Plan), or provide reasonable modifications. These requests can include providing an aide for your child.

It's particularly important to provide information that shows a connection between the disability and the requested accommodation. It may be apparent to a school why a child with osteogenesis imperfecta (brittle bone disease) needs to be given alternate activities to rough and tumble play during gym time. In contrast, unless the parent explains the child gets tired easily, it will likely not be apparent why he may need a rest break in the afternoon. In addition to a detailed explanation by the parent, it's often helpful for your child's doctor to write a letter to the school supporting a parent's request that the school develop a health section of an IEP, an IHP, or a reasonable modification. Keep in mind that a school may request a copy of a child's medical records.

Ensure the Child Understands Their Disability and Health Needs

A key part of ensuring a child's health-related needs are met during the school day is providing age-appropriate information to a child about their disability. This information enables children to advocate for themselves when they are at school without you. For example, if a child who has migraines can be taught to recognize triggers or symptoms early on, they can let the school know when they need to see the nurse to take their medication.

Organizations That Can Help Parents Deal With Schools

To accomplish the three steps described above, it can be helpful for parents to contact organizations focused on the disability with which their child has been diagnosed. Those organizations can often provide tips for making sure a school meets a child's health-related needs. National organizations that provide information about school-related health needs due to specific disabilities include:

• Epilepsy Foundation
• American Diabetes Association
• NAMI: National Alliance on Mental Illness
• Bazelon Center for Mental Health Law
• United Cerebral Palsy

Getting Further Help

If a school refuses to provide accommodations and/or services necessary to meet your child's disability-related health needs, or otherwise discriminates against them due to the disability, it may be necessary for a family to seek legal assistance. The organizations listed above may be able to direct families to legal assistance in their own state.

For families with children in public schools or private schools that receive federal funding, the Office of Civil Rights for the Department of Education (OCR), www.ed.gov/ocr, provides resources to ensure that schools meet the health-related needs of students and don't engage in disability discrimination. OCR provides information about filing complaints against schools that do not meet a child's disability-related needs.

In addition, each state houses a federally mandated protection and advocacy agency that addresses selected disability-related issues. The National Disability Rights Network, www.ndrn.org, can provide more information about protection and advocacy agencies in your state.

If your school isn't cooperating with you to address your child's needs, or you'd like representation at an IEP meeting, you can consult with a special education lawyer.