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SpecialEdConnection® Case Report

109 LRP 32695 Plan and by failing to ensure that at least one staff
Kiski (PA) Area School District member designated as a Health Care Provider (HCP)
is physically present at the Student's school and
Office for Civil Rights, Eastern Division,
available at all times during the school day.
Philadelphia (Pennsylvania)
03-07-1258 OCR is responsible for enforcing Section 504 of
the Rehabilitation Act of 1973 (Section 504) and its
June 30, 2008
implementing regulation at 34 C.F.R. Part 104, which
Judge / Administrative Officer prohibit discrimination on the basis of physical or
Wendella P. Fox, Director mental disability in any program or activity receiving
Case Summary Federal financial assistance from the Department.
Because the district did not adequately address Additionally, OCR has jurisdiction as a designated
the student's needs, OCR found sufficient evidence agency under Title II of the Americans with
that the district failed to comply with Section 504. Disabilities Act of 1990 (ADA) and its implementing
Kiski (PA) Area Sch. Dist., No. 03-07-1258, 109 LRP regulation at 28 C.F.R. Part 35, over complaints
32695 (OCR 2008). "Regardless of the language in alleging discrimination on the basis of disability that
the [Plan], the District was required to have at least on are filed against public entities, which include: public
trained individual, capable of monitoring the Student's elementary and secondary education systems and
condition and administering the necessary treatment, institutions, public institutions of higher education
scheduled to be physically present in the Student's and vocational education (other than schools of
school building at all times throughout the school medicine, dentistry, nursing, and other health-related
day," OCR stated. Because there were periods when schools), and public libraries. Because the District is a
no one qualified to treat the student was present, the recipient of Federal financial assistance from the
district failed to implement his Plan and provide Department and is a public entity, it is subject to the
FAPE. provisions of Section 504 and the ADA and their
implementing regulations.
A district is required to provide each student
with a FAPE, that is, regular and/or special education In reaching a determination in this complaint,
and related aids and services that are designed to meet OCR reviewed information provided by the
his needs as adequately as it meets the needs of Complainant and the District and conducted
students without disabilities. 34 CFR 104.33. interviews with the Complainant and the District's
representative.
Full Text
- For the 2007-2008 school year, the Student was
Appearances: enrolled in sixth grade at the Washington Elementary
Dear Dr. Meighan: School (the School) in the District. The Student has
been diagnosed as having Type I diabetes and is
This is to inform you of the determination by the
insulin dependent. The Student receives health-care
U.S. Department of Education (the Department),
services under a Section 504 Service Agreement.
Office for Civil Rights (OCR), regarding the
resolution of the above-referenced complaint. The - The Service Agreement included, among other
Complainant [ ] alleged that the District discriminated things, that the District would provide at least two
against her son, [ ] (the Student), on the basis of employees who are trained as HCPs who would be
disability. Specifically, the Complainant alleged that present at the School during the school day.
the District discriminated against the Student, who is According to the April 25, 2007 Service Agreement at
a Type I diabetic, by failing to implement his 504 least two School employees would be designated as
HCPs and at least two other school employees would

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be available during school hours to oversee the disability. Under 34 C.F.R. § 104.33 (b), in order for
Student's health care. the education of a disabled student to be deemed
- According to the April 25, 2007 Service "appropriate" a recipient school district must provide
Agreement, only the building principal and school related aids and services that are designed to meet the
nurse (Nurse) at the School were designated as HCPs. individual educational needs of that disabled student.
Under the Section 504 regulation, the District is
- According to the District, the Nurse was
required to provide the Student with FAPE, that is,
regularly scheduled to be at other locations besides
regular and/or special education and related aids and
the School at various times during the course of the
services that are designed to meet his needs as
week. However, the District contended that when the
adequately as it meets the needs of students without
Nurse is not at the School, she is no more than 15
disabilities by adequately addressing his
minutes away.
diabetes-related needs and ensuring a medically safe
- OCR's investigation also revealed that there environment for him. OCR interprets ADA as
were occasions when, in addition to the Nurse's imposing similar requirements. In addition, the
absence from the School, the school principal was Section 504 regulation at 34 C.F.R. 104.4(a) provides
also not physically on the chool campus. Furthermore,
that no person, on the basis of disability, shall be
in a letter dated December 19, 2007 to the District's excluded from participation in, be denied the benefits
attorney, the Complainant's attorney noted that during of, or be otherwise subjected to discrimination under
the Fall 2007 the School principal was no longer any program or activity that received Federal
employed at the School. During the period of the financial assistance. The ADA contains a similar
vacancy in the School principal's position, the Nurse provision, and requires public school districts to make
was the only designated HCP at the School. The reasonable modifications in policies, procedures or
Nurse continued to fulfill her duties at the other practices when necessary to avoid discrimination on
school locations during the week. the basis of disability, unless the modification would
- The District asserts that an HCP need not be fundamentally alter the nature of the service, program
"physically present" but, rather, "available" to the or activity.
Student. The District notes that, according to its During the course of its investigation, OCR
documentation, at least three (3) other school found evidence that shows that, given the Student's
personnel were available throughout the entire school
Type I diabetes, if his blood sugar levels are not
day. maintained properly, he could face life#threatening
- OCR's investigation revealed that the other emergencies. According to the evidence, although
individuals identified by the District were not there were two individuals designated as HCPs, there
qualified nor authorized to administer insulin nor were occasions when both were away from campus at
trained to address any other regular health needs of the same time. Further, for approximately half the
the student. The school personnel identified by the 2007-2008 school year, the School had only one HCP
District, who are currently listed as Designated scheduled because the principal had vacated his
Diabetic Assistants (DDAs), may only administer position and another HCP was not designated.
glucagon in an emergency situation after the student Additionally, the Nurse continued to rotate among
has lapsed into diabetic shock. several schools during the school week, also resulting
Analysis in occasions when no HCP was physically present at
the school at all times during the entire school day
Under 34 C.F.R. 104.33(a), a recipient school
that the Student was in attendance. OCR also found
district must provide a Free Appropriate Public
that individuals currently defined as DDAs are not
Education (FAPE) to each student who has a qualified

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qualified nor authorized to administer insulin or receives such a request, we will seek to protect, to the
address the Student's other regular health needs. extent provided by law, personal information that, if
Pursuant to the Section 504 regulation, and released, could constitute an unwarranted invasion of
regardless of the language in the Student's 504 plan, privacy.
the District was required to have at least one trained Thank you for your cooperation in this matter. If
individual, capable of monitoring the Student's you have any questions, please do not hesitate to
condition and administering the necessary treatment, contact Equal Opportunity Specialist Elvin Webber at
scheduled to be physically present in the Student's (215) 656-6907 or Team Leader Thomas Moshang,
school budding at all times throughout the school day. III (215) 656-8556.
Since the District scheduled the Nurse in a way that
Commitments To Resolve
there were periods during school days where there
was no qualified person physically present at the Kiski Area School District
School who was trained to effectively treat the In order to resolve complaint number 03071258,
Student's diabetes, the District failed to implement the Kiski Area School District (the District) submits the
Student's 504 plan to ensure that he was provided a following assurances to the Office for Civil Rights
FAPE pursuant to the applicable Section 504 (OCR), U.S. Department of Education (the
regulations. OCR concludes that there is sufficient Department). The District is not admitting to a
evidence to support a finding of noncompliance with violation of Section 504, the ADA or their
Section 504. The District has submitted commitments implementing regulations. Hereinafter, [ ] will be
to OCR (copy enclosed) to resolve the compliance referred to as the Student.
concern appropriately. OCR considers this issue to be
General
fully resolved, and the District is in compliance with
1. It is the understanding of the parties that the
Section 504, the ADA, and their implementing
Student has voluntarily withdrawn from the Kiski
regulations based upon the commitments that, when
Area School District and is attending a charter school.
fully performed, remedy the identified compliance
concerns. As is our standard practice, OCR will 2. Should the Student re-enroll in the Kiski Area
monitor the implementation of the commitments. School District, the District will propose and fully
implement the Student's 504 Service Agreement or
This concludes OCR's investigation of this
other such program(s) developed to assure that he
complaint. This letter is riot intended, nor should it be
receives a free and appropriate public education.
construed, to cover any other issues regarding the
Implementation of the Service Agreement will
District's compliance with Section 504 and the ADA
include having a trained individual, capable of
that may exist and are not discussed herein. Please be
monitoring the Student's condition and administering
advised that the Complainant may file a private suit
the necessary treatment in the event the Student lapses
pursuant to Section 203 of the ADA, whether or not
into diabetic shock, scheduled to be physically present
OCR finds a violation of Title II.
in the Student's school building at all times
Please be aware that Federal regulations prohibit
throughout the school day.
the harassment or intimidation of individuals who file
complaints with OCR and those who cooperate with Reporting Requirements
our investigations. If any such actions occur, such 3. Should the Student re-enroll in the Kiski Area
individuals can file a complaint with OCR. School District, the District will provide
Under the Freedom of information Act, it may be documentation to OCR within 45 days of the
necessary to release this document and related Student's re-enrollment the following: that it has
correspondence and records upon request. If OCR identified and trained all health care individuals

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referred to in item #2 above. This documentation also


will include the training received and the schedule of
each health care individual on duty at the Student's
school.
4. Should the Student re-enroll in the Kiski Area
School District, the District will provide
documentation to OCR within 45 days of the
Student's re-enrollment a copy of the Student's current
504 Service Agreement as well as documentation
substantiating that a team of individuals, designated to
be the health care individuals referred to in item #2
above, have been identified and trained. The District
will also submit the schedule of each health care
individual on duty during regular school day in the
school building where the Student is enrolled.

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