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Diabetes and 504 Plans

September 28th, 2017

By Erica Fitzgerald, Esq., Littman Krooks LLP

If you are the parent of a child diagnosed with diabetes, it is crucial to familiarize yourself with your child’s rights. Having a developmental disability is not a prerequisite for protection under the law. Individuals with recognized disabilities, including diabetes, have the same rights to access programs and facilities as their non-disabled counterparts. This right to equal opportunity extends to the classroom. Section 504 of the Rehabilitation Act of 1973 (“Section 504”), The Individuals with Disabilities Act (“IDEA”) and Title II of the Americans With Disabilities Act (“ADA”) all ensure that students with disabilities have an equal opportunity to participate and succeed in school. These laws also provide a legal remedy for those experiencing discrimination and who are not receiving a Free and Appropriate Public Education (“FAPE”).

Section 504 is a civil rights law that protects individuals from discrimination and entitles children diagnosed with disabilities that limit a major life activity, such as learning, to a FAPE designed to meet their individual educational needs as adequately as the needs of children without disabilities. However, “learning” is only one example of a major life activity which can be impacted by a disability. Even if your child has been diagnosed with Type 1 Diabetes but continues to excel academically, he or she may still be eligible for accommodations and qualify for protection under Section 504. School districts have responsibilities to address the needs of your child with diabetes and to make sure he or she can attend school safely.

Section 504, IDEA and the ADA all consider diabetes to be a disability; therefore, it is illegal for schools and day care centers to discriminate against children with diabetes. However, the IDEA is only applicable under certain circumstances, if there is an educational impact and the child needs special education services. First, a student may have a cognitive or emotional disability in addition to diabetes which qualifies him or her for special education services under the IDEA. Second, a student without a coLittman Krooks special needsmorbid disability may nevertheless qualify for special education services under IDEA as having an “other health impairment.” For example, a child with diabetes may experience frequent episodes of hypoglycemia and/or hyperglycemia which significantly inhibit the ability to concentrate, access instruction or attend school. Third, complications from diabetes may result in excessive loss of instruction time, rendering a child eligible for special education services under IDEA.

Failure to qualify for special education services and an Individualized Education Program (“IEP”) under the IDEA does not mean a child with diabetes is not entitled to an individualized, written diabetes management plan which establishes the student’s medical needs and how the school will meet those needs. In addition, a student with diabetes should also seek to obtain a written plan developed pursuant to Section 504 (“504 Plan”) which establishes accommodations that a student with diabetes may need, such as permission to eat anywhere and anytime or carry a cell phone and use it in class, if needed. The 504 Plan can establish procedures and protocols to ensure that a student with diabetes can attend field trips and participate in athletics and extracurricular activities safely with appropriate assistance and supervision. Having a formalized 504 Plan will also ensure access to dispute resolution procedures should any issues arise. A school district remains responsible for providing a student with diabetes with a medically safe environment that offers the same educational opportunities enjoyed by peers even if the child is making meaningful progress academically. This includes providing the student with assistance with administering insulin and glucagon, checking blood glucose levels, and allowing the student to eat snacks during the school day. But a school district’s federal obligations to provide an equal opportunity to participate extend beyond the traditional school day and include non-academic and extracurricular activities as well. Thus, it is the responsibility of the school district to ensure that a child with diabetes has access to medical supplies and any necessary assistance not only at school but also on field trips, during extracurricular activities, and at after school clubs and sports.

If your child with diabetes attends a private or parochial school, these federal laws may not apply. Only schools that receive federal funding, or facilities considered open to the public, must reasonably accommodate the needs of children with diabetes. The standard applied to private non-religious schools, nurseries, day care centers, community based organizations, summer camps after school programs and special events is not the same as the standard to which public schools must adhere. Private schools that receive federal funds are only obligated to comply with minimal obligations such as the least restrictive environment mandate, comparable facilities requirement, and the requirement to provide an equal opportunity to participate in extracurricular activities. They must provide minor adjustments to accommodate students with disabilities. Thus, it is important to understand your child’s rights and to advocate effectively for them.

 

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.


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The Differences between 504 Plans in Public Schools vs Colleges & Universities

January 31st, 2014

It is important for students with disabilities who plan to attend college, and their parents, to understand how their legal rights related to their disability will change in a post-secondary education environment.

In public elementary and secondary schools, students with disabilities may receive services under the Individuals with Disabilities Education Act (IDEA) or the Rehabilitation Act of 1973. The IDEA does not apply in the workplace or in post-secondary education, so services available under IDEA, such as an individualized education program (IEP), are not available in college. However, services under Section 504 of the Rehabilitation Act may continue at the post-secondary level.

First, it should be noted that while Section 504 only applies to schools that receive federal funding, most colleges and universities do, and private post-secondary schools that receive no federal funding are still required to provide similar accommodations to students with disabilities, under Title III of the Americans with Disabilities Act.

Section 504 prohibits discrimination based on disability, meaning that the needs of students with disabilities must be met as adequately as the needs of students without disabilities are met. Colleges and universities must provide accommodations for students with disabilities. As a practical matter, this may include accessibility of classrooms, dormitories and other buildings; additional time on tests; substitution of some course requirements; interpreters or readers; adapted computer terminals and other services. Such services must be provided unless a fundamental alteration of the program or an undue financial or administrative burden would result.

Students with disabilities going from high school to college will need to advocate for their own needs more than ever. If the university has a disability support office, the student will need to make contact with that office to explain his or her needs. If a student has a history of accommodations in high school, then documentation of this should be provided to college or university officials. Most of all, students will need to be persistent, keeping a record of who they talked to, and continuing to press the matter until the needed accommodations are received.

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