Legal Rights of Children with Epilepsy in School & Child Care

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Legal Rights of Children with Epilepsy in School and Child Care pursue mediation and to seek due process hearings and court appeals if the school district or public agency proposes or refuses to take a particular action. Parents may obtain attorney’s fees if they prevail. 20 U.S.C. 1415(d)(2)(L); 34 C.F.R.300.517. Expert fees are not available. Murphy v. Arlington Central School Dist. Bd. of Educ., 126 S.Ct. 2455 (2006). See Chapter 8 for further discussion of complaints, mediation, due process hearings, and appeals to court. Students whose parents cannot be identified or located, who are wards of the state, or who are unaccompanied homeless youth are entitled to surrogate parents to act as educational decision makers on their behalf. 20 U.S.C. 1415(b)(2); 34 C.F.R. 300.519. 2.15Q: What rights do parents and students have under the IDEA if English is not their native language? A: Parent notices must be translated into the parents’ native language unless it is not feasible to do so. 34 C.F.R. 300.503(c)(1)(ii). Notices must be translated orally if the language is not a written one. 34 C.F.R. 300.503(c)(2)(i). Generally, schools provide interpreters for parents who speak common languages such as Spanish. Students must be evaluated in the language that is likely to produce the most accurate results. 34 C.F.R. (c)(1)(iii). 2.16 Q: What is Section 504 of the Rehabilitation Act of 1973? A: Section 504 is a statute that prohibits discrimination in federally funded and federally conducted programs and activities against people with disabilities on the basis of disability. Section 504 mandates that people with disabilities cannot be excluded from participation in or be denied the benefits of any such program or activity. Additionally, Section 504 requires the provision of reasonable accommodation in order to provide a person with a disability equal opportunity to participate in federally funded and federally conducted activities and programs offered to people without disabilities. 2.17Q: Who is protected by Section 504? A: People are covered under Section 504 if they have a physical or mental impairment that substantially limits one or more major life activities, have a record of such an impairment, or are regarded as having such an impairment. 2.18 Q: What is considered a “physical or mental impairment” under Section 504? A: The Education Department’s Section 504 regulations define the term as “(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as mental 21
What Laws Apply to Children with Epilepsy? retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.” 34 C.F.R. 104.3(j)(2)(i). 2.19 Q: Are all people with epilepsy automatically covered by Section 504? A: Probably not. The United States Supreme Court held in Sutton v. United Airlines, Inc., 527 U.S. 471 (1999), a case interpreting the ADA, that, in determining if an impairment “substantially limits” a major life activity, it is necessary to look at any measures the person has taken to mitigate or minimize the impairment, such as medications or assistive devices like eyeglasses or prosthetics. Because the definition of disability under the ADA is identical to the definition contained in Section 504, the Sutton holding appears equally applicable to Section 504. Therefore, if a person with epilepsy has wellcontrolled seizures or has mild seizures that do not substantially limit a major life activity, and does not have significant side effects from antiepileptic medication, he or she will not be considered disabled unless he or she meets one of the other prongs of the definition — i.e., has a record of such an impairment or is regarded as having such an impairment. However, a student who requires school personnel to administer antiepileptic medication to him or her during the school day would be covered under Section 504 even if his or her seizures were well controlled. See Chapter 5 for further discussion of Section 504 and special education. 2.20 Q: What is a “major life activity” under Section 504? A: Major life activities include functions such as walking, seeing, hearing, caring for one’s self, speaking, breathing, learning and working. 34 C.F.R. 104.3(j)(2)(ii). 2.21Q: What are the requirements of Section 504 for public school systems? A: Public school systems must provide a free appropriate public education to each “qualified handicapped person” in the jurisdiction regardless of the nature or severity of the person’s disability. A person is qualified if he or she is of an age at which children without disabilities attend school or at which state law mandates that education services be provided to children with disabilities. An appropriate education is regular or special education with related aids and services that “are designed to meet individual educational needs of handicapped people as adequately as the needs of nonhandicapped people are met” and that meet the requirements of the regulations. 34 C.F.R. 104.33. 13 13 The Education Department’s Section 504 regulations use the terms “handicap” and “handicapped persons.” However, Section 504 itself, consistent with the language used in the ADA, instead makes reference to “disability” and “individuals with disabilities.” The regulations have not yet been revised to adopt this more current and preferable language. 22
Page 1 and 2: AN ADVOCATE’S MANUAL AN ADVOCATE
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Page 17 and 18: ABOUT THE AUTHOR Leslie Seid Margol
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CHAPTER SIX Special Education and S
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Special Education and Students with
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APPENDIX A: CHILD CARE SEIZURE DISO
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Activity Restrictions _____________
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The following form is to be complet
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8301 Professional Place, Landover,
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Myoclonic seizures: Seizures in whi
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(Student’s name) needs assistance
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7. FIELD TRIPS AND EXTRACURRICULAR
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APPENDIX C: SCHOOL SEIZURE ACTION P
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Seizure Observation Record Student
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SAMPLE COMMUNICATION FORM FOR STUDE
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SAMPLE COMMUNICATION FORM FOR STUDE
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APPENDIX E: SELECTED STATE LAWS ON
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Selected State Laws on School Medic
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