Education Law Insights

NSBA to OCR: Standard for Addressing Requests for Technology by Students With a Communication Impairment is Off Key

Posted by Jackie Wernz on April 10, 2015

Readers of our FR Alerts may remember my colleague Kendra B. Yoch authored an Alert in 2013 about a set of outlier cases in the Ninth Circuit Court of Appeals, K.M. v. Tustin Unified School District and D.H. v. Poway Unified School District. The cases dealt with a request by a student with a hearing impairment for a certain technology service as an accommodation. A three-judge panel of the Court of Appeals held that a school district violated disabilities laws even though it had complied with the Individuals with Disabilities Education Act (IDEA), because compliance with the IDEA does not satisfy all claims under Section 504 of the Rehabilitation Act (Section 504) or under the Americans with Disabilities Act (ADA).

If you are outside the jurisdiction of the Ninth Circuit (Arizona, Washington, Oregon, California, Montana, Idaho, Nevada, Alaska, and Hawaii), you may rightly think “Well that’s interesting, but luckily it doesn’t apply to me.” Although normally that response is correct, the U.S. Department of Education’s Office for Civil Rights (OCR) last fall adopted the Tustin standard in a “Dear Colleague Letter” (DCL), thus applying the standard to school districts across the country. Last month, the National School Boards Association called OCR out in a letter. As NSBA reported, it argued in its letter that OCR was off base in so widely applying an inappropriate standard and one that has only been adopted by one court in one jurisdiction.

The Tustin Decision 

In the Tustin case, two hearing impaired students had individualized education programs (IEPs) providing services and accommodations to address their communications. There was no question that the students were receiving a free and appropriate public education (FAPE) under the IDEA, because they were making progress and receiving meaningful educational benefits. The students’ parents wanted the schools to provide the students Communication Access Realtime Translation (CART), which is a service where a stenographer transcribes communications in real time, which are then streamed to the student’s computer in closed captioning. The Ninth Circuit held that the mere fact that the students were being properly served under the IDEA did not preclude liability under Section 504 and the ADA.

We typically follow the Section 504 regulations that say that if a school district complies with the IDEA it has also complied with Section 504 and the ADA. But the Ninth Circuit disagreed, finding that the IDEA sets only a floor of access to education for children with communications disabilities. Section 504 and the ADA, however, require public entities to take steps towards making existing services not just accessible, but equally accessible to people with communication disabilities, insofar as doing so does not pose an undue burden or require a fundamental alteration of their programs.

Notably, the IDEA requires that an IEP team as a whole decide whether a certain assistive technology is needed, considering any specific preference of the student or the parent. But the Ninth Circuit pointed out that the ADA requires a public entity to not only consider the student’s and parents’ preference but to give primary consideration to the requests of the individual when determining what type of auxiliary aide or service is necessary. 


The DCL issued by OCR was issued jointly with the U.S. Department of Justice (DOJ) and the U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS). The DCL adopts the Tustin standard that auxiliary aids or services must be provided to a student if necessary to provide equal access to the student despite his communication disability. The only exception is if the school district can prove that the auxiliary aid or service would result in a fundamental alteration in the nature of its program or cause an undue burden. The DCL does not provide any criteria for what circumstances would constitute such a fundamental alteration or undue burden, but suggests that in most cases such a burden or hardship will not exist. Like the Tustin case, the DCL also states that under Section 504 and the ADA school districts must give “primary consideration” to the preferences of the student with a speech, hearing, or vision disability or her parent in determining what auxiliary aids and services to provide. The guidance also says that if a parent or student requests a specific aid or service, it must be provided by the school district in a “timely” manner, which apparently means “immediately.” Under the DCL, it does not matter if the student’s IEP team has considered or agrees that the aids or services are required under the IDEA.

The NSBA Letter 

It’s not news that the NSBA has a problem with the Tustin decision. Last year, the NSBA teamed up with two state school boards associations to ask the Supreme Court to take up and reverse the case. But in its letter, NSBA argues that OCR has made the situation significantly worse by improperly applying the standard adopted by the case to school districts across the country, even though courts outside of the Ninth Circuit have not agreed with the decision. NSBA also argues that the IEP process is essentially being replaced with parental preference, that the decision will lead to ineffective and potentially disruptive aids and services being required for students, and that schools will be administratively and financially burdened because there aren’t clear standards as to what is required. 

Takeaways for School Leaders 

Until OCR changes its stance, its DCL guidance will still govern its investigations of alleged Section 504 violations in school districts, so it’s important for school leaders to take note. In some cases, the services and aides a district provides a student with a communication impairment through an IEP will also satisfy the ADA. But districts should carefully consider their obligations under both Section 504 and the ADA because in some cases the statutes may require different actions.

Special Education: Which School Is Responsible for Evaluating a Private School Student?

Posted by Jackie Wernz on September 21, 2012

In a recent ISBE Superintendent’s Message, school districts were reminded that it’s the time of year when districts should be planning to complete annual, timely and meaningful consultation (TMC) with private schools and families of home-schooled students with disabilities. ISBE encouraged school districts to complete the TMC by no later than October 15, 2012, and to submit documentation of the TMC by November 1, 2012. ISBE also reminded school districts that the specific steps for conducting TMC can be found in ISBE’s guidance memos—Supplemental Guidance Information To Memorandum #05-7 (August 11, 2005) Regarding The Non-Public Proportionate Share (April 21, 2006) and Special Education Services For Parentally Placed Private School Children With Disabilities (June 25, 2006), and that ISBE has an affirmation form available for school district use.

A review of the ISBE guidance materials raises a related and interesting issue relating to special education evaluations for private school students. When a student resides in school district A, but attends a private (non special-education) school located in school district B, which school district has the responsibility to evaluate the student? (more…)

Are Illinois Schools Required to Stock EpiPens?

Posted by Jackie Wernz on September 10, 2012

With guest blogger Darcy Kriha

We have received an unusually large number of calls from school districts over the past few weeks concerning the administration of EpiPens® in schools. The relevant Illinois statute was amended over one year ago, on August 15, 2011. So why the sudden uptick in calls? It turns out that the local media extensively covered a press conference held on August 13 by Illinois Attorney General Lisa Madigan at Chicago’s Lurie Children’s Hospital, urging Illinois school districts to acquire Epinephrine Auto-Injectors (EpiPens®) to administer to students who experience anaphylactic shock at school.

The big question: are schools required to stock EpiPens®? The answer is no – the statute is permissive, not mandatory. We are aware that a handful of school districts decided to obtain extra EpiPens® to administer to students in case of an emergency, even in situations where the student does not have a known allergy. Policy revisions, notice to parents, staff certifications, filling of prescriptions, etc., are all issues that need to be addressed and discussed with counsel if a district chooses to stock EpiPens®.

If you are looking for more information, the Attorney General’s Office website contains a comprehensive and well written summary of the Emergency Epinephrine Act (P.A. 97-0361; 105 ILCS 5/22-30) along with three ‘fact sheets’ directed to parents, physicians, and schools.

Don’t Miss Section 504 Warning Signs at Registration

Posted by Jackie Wernz on August 23, 2012

Back to school is a busy time for school administrators, but don’t forget your Section 504 obligations. The following are tips to remember during student registration and the first weeks of school regarding Section 504 identification and eligibility:

  • Provide information about Section 504 to parents during the registration process and through the school district website, in addition to other systematic efforts to communicate the school district’s Section 504 policies and procedures to stakeholders. Include a summary of Section 504, the processes used to determine eligibility, and contact information for relevant school administrators.
  • Train administrators and staff about current standards for 504 eligibility so that warning signs are not missed. Importantly, under the definition of disability from the 2009 ADA Amendments Act, a student can be eligible under Section 504 even if the student’s disability does not impair learning. Simply because a student has good grades does not mean she is ineligible for Section 504. Look for other impacts of a disability, such as problems with behavior. Our firm issued a summary of the 2009 amendments and their impact on Section 504 that is a good starting point for a review.
  • Ask for documentation supporting the student’s claim that he or she has a covered impairment, but don’t demand a medical diagnosis. For those with Special Ed Connection access, the Houston Independent School District special education updates blog has a link (subscription required) to an article warning against requiring a medical diagnosis as a condition for assessing student 504 eligibility.
  • Watch for signs that a student is not responding to general education interventions and move toward Section 504 evaluation if necessary. Although it is appropriate to respond to student concerns with such interventions, persisting with them once they prove to be inadequate can spell trouble for the school district (subscription required).

Most if not all districts already have standard Section 504 forms which accurately comply with the 2009 changes to the ADA, the most recent legal update needed.  If your district has had usability issues with its forms, Franczek Radelet recently updated the standard forms to make them more user-friendly.  If you are interested in these newly formatted forms, e-mail me at

What About Private Schools?

As Nirvi Shah explained at On Special Education, the Department of Education takes the position that unless a private school receives federal financial assistance it is not subject to Section 504. Public schools should seek the advice of legal counsel if evaluation and/or services are sought by a student attending a private school, however, because the issue of whether such a student should receive services under Section 504 is still unsettled.