UPDATE Please help with 504, the school bus and a very stubborn district

[Macabre]

http://www.katiekellylaw.com/apps/documents/categories/show/106111

This is the website of a special ed attorney in Florida, Katie Kelly.  Something in her 504 Fact Sheet intrigued me. (emphasis mine)

Section 504 also applies to a public online high school operated statewide by a public school district via contract with a private entity.   The online school was owned and operated by a private entity under a "management services agreement" with the school district.  Even though the agreement said the private company was responsible for complying with all applicable laws, the school district violated Section 504 by not ensuring that the online school operated in compliance with Section 504.

[Macabre]

It is helpful to actually read Section 504.  Go to page 45 of this for a readable version:  http://doe.sd.gov/oess/documents/sped_section504_Guidelines.pdf

Here are parts (emphasis mine):

Appendix A
Section 504 of the Rehabilitation Act of 1973—
Regulations
34 CFR Chapter 1, Section 104.31
Subpart D—Preschool, Elementary, and Secondary Education
(December 13, 2000)

§ 104.31 Application of this subpart.
Subpart D applies to preschool, elementary, secondary, and adult education programs or
activities that receive Federal financial assistance and to recipients that operate, or that
receive Federal financial assistance for the operation of, such programs or activities.

§ 104.32 Location and notification.
A recipient that operates a public elementary or secondary education program or activity
shall annually:
(a) Undertake to identify and locate every qualified handicapped person residing in the
recipient's jurisdiction who is not receiving a public education; and
(b) Take appropriate steps to notify handicapped persons and their parents or guardians
of the recipient's duty under this subpart.

§ 104.33 Free appropriate public education.
(a) General. A recipient that operates a public elementary or secondary education
program or activity shall provide a free appropriate public education to each qualified
handicapped person who is in the recipient's jurisdiction, regardless of the nature or
severity of the person's handicap.

(b) Appropriate education. (1) For the purpose of this subpart, the provision of an
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 nonhandicapped persons are met and (ii) are
based upon adherence to procedures that satisfy the requirements of §§ 104.34, 104.35,
and 104.36.




(2) Transportation. If a recipient places a handicapped person or refers such person for
aid, benefits, or services not operated or provided by the recipient as its means of
carrying out the requirements of this subpart, the recipient shall ensure that adequate
transportation to and from the aid, benefits, or services is provided at no greater cost than
would be incurred by the person or his or her parents or guardian if the person were
placed in the aid, benefits, or services operated by the recipient.


§ 104.37 Nonacademic services.
(a) General. (1) A recipient to which this subpart applies shall provide non-academic and
extracurricular services and activities in such manner as is necessary to afford
handicapped students an equal opportunity for participation in such services and
activities.
(2) Nonacademic and extracurricular services and activities may include counseling
services, physical recreational athletics, transportation, health services, recreational
activities, special interest groups or clubs sponsored by the recipients, referrals to
agencies which provide assistance to handicapped persons, and employment of
students, including both employment by the recipient and assistance in making available
outside employment.
(b) Counseling services. A recipient to which this subpart applies that provides personal,
academic, or vocational counseling, guidance, or placement services to its students shall
provide these services without discrimination on the basis of handicap. The recipient shall
ensure that qualified handicapped students are not counseled toward more restrictive
career objectives than are nonhandicapped students with similar interests and abilities.
(c) Physical education and athletics. (1) In providing physical education courses and
athletics and similar aid, benefits, or services to any of its students, a recipient to which
this subpart applies may not discriminate on the basis of handicap. A recipient that offers
physical education courses or that operates or sponsors interscholastic, club, or
intramural athletics shall provide to qualified handicapped students an equal opportunity
for participation.
(2) A recipient may offer to handicapped students physical education and athletic
activities that are separate or different from those offered to nonhandicapped students
only if separation or differentiation is consistent with the requirements of §104.34 and
only if no qualified handicapped student is denied the opportunity to compete for teams or
to participate in courses that are not separate or different.

[twinturbo]

The allergist is correct, we don't want him to get involved with the schools. Which is what you can point out writing a letter that names you as the expert will do.

This is how I would approach it. Call to schedule a consult appointment on the emergency action plan and review records, HIPAA paperwork. You have some very specific questions that need some face time beyond a simple question over the phone. The nurse is stuck in reject mode. I'm going to hold off judging the allergist because maybe he's been burned in the past, and in a sense I agree with him. He's a doctor, not a lawyer. He can only provide medical services to his patient.

Bring your drafted letters both in hard copy and some electronic form. It could be a thumb drive but I prefer to save as PDF mailed to myself that I can forward to the allergist. Present the first letter as the required way to ensure that the school district does not try to involve him, and that you have already taken the necessary steps in the front office (HIPAA) to make sure the school can't access the patient's medical information on their own. Reassure him that you fully agree he should not be negotiating with the school and that this letter will formalize that. Also point out that while you and allergist know he should not be called by the school during an instance of anaphylaxis, so the letters will shore up the patient's prescribed emergency action plan as well.

Remind allergist that if it is accurate and provides patient support for an already prescribed emergency action plan (inject as stated, no waiting), then properly framed it is not about you or him, it is about the patient.

Regarding HIPAA, I'm not super sure on how to form that. A letter stating that the school may not call or in any communication interact with the allergist directly or access patient information.

[ajasfolks2]

You know, if the school district ends up having to pay for aides for EVERY child with LTFA (life-threatening food allergy) who rides a bus, I'm thinking the district will be shopping for new company that provides bus drivers . . . or will mandate that the company train all drivers in epi admin in order to get the next contract.  . . .

There was case in Michigan in past 2 - 3 years where something similar was going on as to bus driver refusing to administer epi . . . and child not being able to ride . . . I'll see if I can find some of the news stories and the outcome (positive for the child & family, I believe) . . .

[rebekahc]

I found this - it's part of IDEA, but should be applicable here also:

The "Non-Academic Services" section, under the Free Appropriate Public Education component of IDEA requires the public agency to "provide non-academic and extracurricular services and activities in such manner necessary to afford children with disabilities an equal opportunity for participation in those services." One of those non-academic services is transportation. This continues the emphasis to integrate children with disabilities as much as possible with children without disabilities.

Here's a link to an OCR investigation re: transportation http://www2.ed.gov/about/offices/list/ocr/docs/investigations/05105001.html

Also, if you go to ED.gov and search 504 transportation, you'll find several other things to look at.

[daisy madness]

I faxed the allergist a letter this morning.  That was before I read the suggestion to schedule an appointment.  I mentioned that I am aware of his policy and I am not asking him to get directly involved.  However, his qualified medical opinion is the one that holds weight.  I am asking him to write a letter to the school outlining DS's diagnosis, history of reactions and emergency treatment plan tweaked to make it applicable to school.  I stated that I am not asking him to recommend any specific accommodations.  I asked that he also state in the letter that he considers us, as DS's parents to be knowledgeable as to the management of DS's medical condition.  I mentioned our concerns with transportation.  I mentioned his history of delayed reactions after ingestion and of skin contact reactions.  I thanked him for the level of care and concern he has always shown for DS and asked him to please contact me with a response.  I attached a sample letter he could use (basically the one that was posted but tweaked to make it fit DS's situation) for him to use if he found it helpful.  I made sure the letter specifically mentioned transportation.  I did not ask for two separate letters.  Maybe that's a mistake but I'm thinking I'll be lucky to get one letter, never mind two.

Thank you all for the various cases to look over.  Here's what stumps me.  Our state has a guide for schools for management of food allergies.  It's very specific until it gets to the part about transportation, and then it all falls apart.

The district or nonpublic school should consider the needs of students with life-threatening allergies while being transported to and from school and to school-sponsored activities.
a)
Advise bus drivers of the students that have food allergies, symptoms associated with food-allergic reactions, and how to respond appropriately.
b)
Assess the emergency communications systems on buses.
c)
Consider assigned bus seating i.e., students with food allergies can sit at the front of the bus or can be paired with a "bus buddy."
d)
Assess existing policies regarding food on buses.

It doesn't specifically address Epi-pen administration.  Here's where I think the district has found it's loophole. 

Furthermore, since the district isn't refusing to transport him (other than that one crazy conversation) how do the transportation rules for FAPE apply?  They're willing to transport him, they're not willing to administer Epi on the bus.  Where transportation and FAPE are mentioned, does this specifically mean that he must be transported in accordance with his allergy action plan as written by his doctor (Epi, 911, ER)?   

And yes, I do think if the district looks to hire a new bus company at contract renewal time, the bus company will change it's tune.  I have asked in several other local districts and their bus companies allow the drivers to administer.  And if the driver refuses, the school provides and aide. 

[twinturbo]

What you did is great. You already have the emergency plan so the essential is there.

I don't know if others would agree but I'm not sure you have to contest district policy so much as maintain that the EAP (plan) must be implemented across any school activity, FAPE covers anything on the receiving end of federal financial assistance. Unless the SD is going on record to defy the EAP's clear directives, suggesting it is picking and choosing when to provide an accommodation that affects a major life activity.

[daisy madness]

One more thing.  Do you think there's a way to successfully argue that the bus ride is too long based on his medical needs, even with a trained aide?  I'm trying to think of an angle.....

On another note, I'm getting really proficient at spelling "allergy" backwards!

[Macabre]

My DS' ride was that long or longer.

Btw he had an bus aide for several years. 

[ajasfolks2]

They may offer to set up a "special needs" bus for your child . . . be prepared for some possible offers/negotiations . . . take notes.

I'll be back later to elaborate.

[Stinky10]

I have much the same issue and have never pursued it.  We just drive him.  We were thinking about letting him ride bus this year....

drivers from what I understand - would pull over and radio into a dispatcher - they don't have cell phones

I've been gearing up for this fight and/or gathering calmness to let him ride now that he's in 5th grade and could handle himself and tell us if there was food on the bus...etc  - and then I would fight or revert to driving - but then he choose the Cello and you have to sign something that says that you will provide xport on those days due to the size of the cello....

I wish I could help.

[twinturbo]

One important logistical point to insert here based on the bus company's policy to dial 911 and await EMS.

Pediatric epinephrine administration is not regulated federally. This will be greatly affected by your state laws, county and city EMS regulation, and what routes your child would travel. I'll elaborate using my change of state residence as an example.

The state I reside in now allows all EMS personnel to administer pediatric epinephrine from paramedic down to EMT basic.

The state I moved from only allowed full paramedics to administer pediatric epinephrine. Some of the cities mandated that all EMS trucks in their limits to have one paramedic per responding ambulance. The county did not. I'm not sure what happened in other cities or in unincorporated areas or privately run ambulances.

Check your state laws (don't write your state here). If all EMTs may administer pediatric epinephrine that's good in general terms. If it is unevenly distributed amongst EMS personnel dependent on grade (basic, intermediate, advanced, paramedic) then go to your local FD and politely inquire how it works if an ambulance is called to administer pediatric epinephrine.

It *may* be flawed assumption from the very start that if the bus calls for an ambulance that any responding personnel are even allowed to administer epinephrine. Our school at the time gasped a collective oh crap when they were informed. They erroneously (and dangerously) assumed an EpiPen delivery was just a phone call away.

Keep us updated.

[daisy madness]

Update

I got the letter from the allergist!!!  Yay!!!!!  I was seriously jumping around the room!  The only loophole which the school district may try to wiggle through is that it says "Epipen must be administered immediately followed by Benadryl.  DS needs to be taken to the nearest Emergency Room.  Additional administration of the Epipen every 10-15 minutes may be required if symptoms recur or progress.  DS's Epipen and Benadryl must be present with DS at all times (school activities, field trips, transportation to and from school)."

It doesn't specifically say that an adult must be present on the bus to administer it, although it's obviously inferred.  Do you think that's enough?  It does say previously in the letter that in the case of an allergic reaction, an adult must be available to administer his Epipen.

I'll be sending this certified to the school district. 

Also, I called our state's disability rights group again last week.  I had initially called them in August and they put me in touch with a non-profit attorney who told me that I am correct, but she wasn't available to take our case.  So I called the disability rights group back and a supervisor will be getting back to me to tell me if there's anything they can do.  Initially when I called them (before they referred us to the attorney) they said they would write a letter to the school asking them to put an aide on the bus.

Also, I had called the superintendent prior to posting here (and getting such awesome advice) and asked him if they're not willing to put the aide on the bus, would they be willing to adjust the bus route so DS would be on the bus for less than 15 minutes.  He called me back last week and said they couldn't change the bus route, but they've looked into it and decided that I could drive my kids to the other end of the road (1.5 miles) and get them on the bus there and the bus ride would be 5 minutes.  I drove down and the road is so narrow down there.  There's no shoulder or spot to park my car.  I'd have to park smack in the middle of the lane, or in someone's driveway.  Not a safe option at all.  And he said on the way home, my kids are the second stop so the ride is short.  I said "no, we're the second to last stop."  He said "I have the route right in front of me.  You're the second stop.  And I said "Well, maybe they're driving it wrong because we're the second stop in the morning and the second to last stop in the afternoon.  My daughter is on the bus for an hour each direction."  He said he would call me back this week.  I handed them a huge win with that compromise and they still wouldn't take it. 

The school board meeting is next week.  I'm supposed to be on the agenda to discuss this in executive session.  I just don't see that that's appropriate but I'm doing it anyway because I would like to get them on the official record as refusing.  When I disagreed with the 504, the school district should have informed us of our rights to due process, correct?  The school board has no part in that as the school board dictates policy, not 504 accommodations.  However, I do think it makes for a stronger OCR complaint if the school board says no and the district has also not informed me of due process.  Nor did they inform me in writing that they were evaluating DS for a 504 (they did so verbally) and they also did not give me opportunity to review records.  It's a tiny district in a rural area and I think it's just not something that they deal with all that often so they're rusty on the procedural safeguards.   

[daisy madness]

Oh, and thank you for mentioning the basic vs advanced EMT thing.  Turns out that's true for our state.  I have an email into the local rescue squad asking about response times for EMS vs advance life support EMS.  I tried to call their non-emergency line but no one answered.  Umm, ok??  Hopefully the emergency calls are being answered!

[twinturbo]

Don't call dispatch even the non-emergency. Not that calling non-emergency is a bad thing in itself it's just not the FD. I'd talk to some EMTs directly. They have that field experience of knowing what actually happens and who is manning the trucks. One thought is look at your community college course descriptions. There's almost always an EMT basic course taught. Most likely there is an instructor listed for that class by email and name. It's probably paramedic or EMT advanced but one open to inquiries as an instructor. That might be a good shortcut to save you some time driving and talking to guys and gals on duty.  Personalities vary.