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 comorbid 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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Posted in New York Special Needs, Special Education Advocacy | Comments Off on Diabetes and 504 Plans
Tags: 504 plans, ADA, diabetes, FAPE, Individuals with Disabilities Education Improvement Act (“IDEA”)

The Americans with Disabilities Act (ADA), enacted in 1990, has been used to open countless public accommodations to people with disabilities. Now it is being used to make websites accessible as well, and this legal frontier is likely to expand in the future.

A number of cases in the past several years illustrate online accessibility issues.

In 2008, the National Federation for the Blind settled a class action lawsuit against Target Corporation that was brought under the ADA and California law. The lawsuit alleged that Target’s online store was a “public accommodation” under the meaning of the law, and it was not accessible to the blind. One of the problems allegedly stemmed from misuse of the alternative text for clickable images. Rather than a description of the image, blind users selecting an image would hear a non-descriptive filename. Target filed a motion to dismiss, claiming that its brick-and-mortar stores were accessible to the blind and that the law was only intended to apply to physical accommodations. However, a judge ruled that the lawsuit could proceed, allowing the interpretation that websites are public accommodations under the law. In the settlement, Target agreed to make changes to its website.

In 2009, Disability Rights Advocates, a non-profit public-interest law firm, settled a lawsuit against two hotel reservation websites: Hotels.com and Expedia.com. The lawsuit hinged on the inability of disabled users to search for the hotel accommodations they need, such as Braille signage, wheelchair-accessible showers and telecommunications equipment for individuals with hearing loss. Plaintiffs claimed that they were unable to take advantage of the convenience and discounts of online hotel reservations. Under the settlement agreement, the websites made changes allowing users with disabilities to search for the hotel accommodations they need and make special requests for those rooms online. Each special request will be handled individually to accommodate the customer’s needs.

Last year, the National Association of the Deaf settled a federal lawsuit against Netflix, alleging that the company violated the ADA by not providing closed-captioning for its streaming video. The plaintiffs claimed that 48 million deaf and hard-of-hearing people were prevented from using the service. In the settlement agreement, Netflix agreed to add closed-captioning to all its content by 2014. The text can be displayed on most devices on which Netflix is available. In the meantime, Netflix agreed to improve its interface to help users identify which content has closed-captioning available. The company said that is was already a leader in making content available to people who are deaf and hard-of-hearing, and that it hoped its commitment to 100 percent captioning would serve as an example for other streaming video providers.

These lawsuits successfully argued that people with disabilities should have access to accommodations in the online world just as in physical locations. These successes are already spurring other businesses to make their websites more accessible, a move that benefits people with disabilities and the businesses themselves. After all, making it easier for people to access services should improve any company’s bottom line.

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Posted in Autism, New York Special Needs | Comments Off on Website Accessibility is the Next Legal Frontier for Americans with Disabilities
Tags: ADA, the Americans with Disabilities Act (“ADA”)

A Long Island married couple who are both developmentally disabled has found a group home where they can cohabit, but a lawsuit for their right to live together continues. The case may be the first to raise the question of whether denying mentally disabled people the right to cohabitation in a marriage violates the Americans with Disabilities Act (ADA).

Paul Forziano, 30, and Hava Samuels, 36, married in April of last year. The couple met seven years ago at a day program operated by the Maryhaven Center of Hope on Long Island. Forziano and Samuels both have mild to moderate mental disabilities.

The couple’s wedding had been delayed because they wanted to ensure that they could live together after they were married. Samuels lived at Maryhaven Center of Hope and Forziano lived at Independent Group Home Living, both on Long Island. Both group homes refused to allow the couple to live together. The couple’s parents, who supported the marriage, filed a federal lawsuit as the couple’s guardians against the group homes and the state of New York. The state was named as a defendant because it oversees the licensing of the nonprofit group homes and receives the Medicaid funding that pays for their services. The state Office of Persons with Developmental Disabilities, also named in the suit, is responsible for the program that provides Medicaid waiver services.

Since the lawsuit was filed, another group home, East End Disabilities Associates, has offered to provide the couple with a one-bedroom apartment inside the home, where they can live together. Forziano and Samuels are planning to move into their new home sometime in July. The lawsuit, however, will continue. The two wish to establish their right to live together and obtain compensation for that right having been denied. When the couple expressed to their parents that they wished to be married, their parents found no legal barriers to people with intellectual disabilities marrying, but they found that the group homes where the two resided were not supportive of their desire to marry and would not provide housing where they could live together.

The lawsuit hinges on the ADA’s provision requiring public entities to make reasonable accommodations to avoid discrimination on the basis of disability. The state of New York licensed the couple to marry, and the right to live together as a couple is among the most basic rights associated with marriage. The plaintiffs argue that because they are a married couple and their intellectual disabilities require that they reside in a supervised housing situation, the nonprofit group homes, by virtue of accepting Medicaid funding, should be required to accommodate their wish to live together. The lawsuit also cites the Fair Housing Act and New York State’s Human Rights Law.

It is difficult to know how many people with mental disabilities are married, because such information is not collected in marriage license applications. However, it is known that other married couples with mental disabilities live together in New York State, including in group homes. If Samuels and Forziano’s lawsuit is successful, it may establish their right to do so.

For more information about disability planning, visit www.specialneedsnewyork.com.

Posted in New York Special Needs, Special Education Advocacy | Comments Off on Married Couple with Mental Disabilities Sue for Right to Live Together
Tags: ADA, Americans with Disabilities Act