Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
One of the students in my school has an IEP for educational services. She also has a medical plan filed with our health office regarding a seizure disorder. The school nurse has reached out to the family on multiple occasions to obtain updated seizure medication (used in the event of a seizure). The parent told the nurse that the child has not had a seizure in about a year and one-half. Other than that, however, the parents have not been cooperative. Despite numerous requests from the school nurse, the family has not provided an updated doctor’s note or medication that has not expired. Moreover, the seizure plan provided by the doctor expires in two months.
Last week, the class went on a field trip off campus without a nurse. The parents were invited either to take the child themselves, or to have the child remain in school where there was at least a nurse.
Were we within our right to keep her in school until the medical issue is updated?
What Do You Want Us To Do Anyway?
In a word, no – your district was not within its right to take the approach you describe. Legal Mailbag does not wish to be overly critical here, but the practice you describe (encouraging the parents of a child with a seizure disorder to transport their child or leaving the child behind) violates Section 504 of the Rehabilitation Act as well as the Americans with Disabilities Act. Moreover, by focusing concern on the field trip situation, your school district may be overlooking a more general problem – the presence of a student in school without a current physician’s order or up-to-date medication.
Field trip or no field trip, documenting that the district intends to call 911 in the event of an emergency is appropriate. In addition, Legal Mailbag suggests that you reach out to the district’s medical advisor for medical advice on what the district should do in light of the parents’ lack of response to the multiple inquiries, and that you document and follow the advice of the district’s medical advisor. If cooperation of the parents in getting a current order and new medication is necessary for the student’s safety, the parents’ failure to cooperate could be neglect, triggering an obligation to file a report with the Department of Children and Families.
The district’s actions regarding the field trip are particularly concerning. Under Section 504, the district has an obligation to provide accommodations to enable the child to access the field trip, which may include the provision of a nurse for the field trip if a nurse is required in order to ensure the child’s participation. It is not appropriate either to require parents to participate with their disabled children (unless all parents are required to attend) or to exclude the child if a determination has been made that the child requires nursing care in order to participate in the field trip.
A recent case out of New York illustrates these principles. In M.F. by and through Ferrer v. New York City Department of Education, 582 F.Supp.3d 49 (E.D. N.Y. 2022), the issue was whether the New York City Department of Education had met its duty under Section 504 to accommodate students with diabetes on field trips. Just last year, the court ruled that it did not:
The court declares that defendants have discriminated against students with diabetes under Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act of 1990, and the New York City Human Rights Law, and failed to provide a free, appropriate public education because they have not provided students with diabetes the services determined to be necessary to meet their needs. Specifically, defendants have denied students with diabetes equal access to the educational opportunities afforded by field trips by failing to provide trip nurses to accompany Nurse-Dependent students with diabetes, and have denied appropriate transportation services to students with diabetes by failing to ensure the presence of adults on school buses with training to administer glucagon in the event of severe hypoglycemia.
Each case, of course, will be decided on its own facts, but Legal Mailbag cites this case as a cautionary tale.
One bright spot here is that a nurse may not be required to accompany the student on field trips. Assuming the student has been diagnosed with an epileptic condition, if the seizure medication had been made available by the parent in a timely way, Connecticut law does not require that such medication be administered by a school nurse. Rather, Connecticut law permits an appropriately trained principal, teacher, licensed athletic trainer, licensed physical or occupational therapist employed by the Board, coach or school paraprofessional, to provide antiepileptic medication to a specific student with a medically diagnosed epileptic condition that requires prompt treatment in accordance with the student’s individual seizure action plan, provided the following additional conditions are met:
(i) there is written authorization from the student’s parents/guardians to administer the medication;
(ii) a written order for such administration has been received from the student’s physician licensed under Chapter 370 of the Connecticut General Statutes;
(iii) the principal, teacher, licensed athletic trainer, licensed physical or occupational therapist employed by the Board, coach or school paraprofessional is selected by the school nurse and school medical advisor, if any, and voluntarily agrees to administer the medication;
(iv) the principal, teacher, licensed athletic trainer, licensed physical or occupational therapist employed by the Board, coach or school paraprofessional annually completes the training program established by the Connecticut State Department of Education and the Association of School Nurses of Connecticut, and the school nurse and medical advisor, if any, have attested, in writing, that such training has been completed; and
(v) the principal, teacher, licensed athletic trainer, licensed physical or occupational therapist employed by the Board, coach or school paraprofessional receives monthly reviews by the school nurse to confirm competency to administer antiepileptic medication.
Conn. Gen. Stat. § 10-212a(f).
In sum, Legal Mailbag hopes that this information is helpful to your district in rethinking its approach and adopting practices that comply with the district’s obligations under Section 504 and the Americans with Disabilities Act.