Chapter 14: Information on the Rights of Students with Significant Health Conditions

(14.1) My child has a serious illness or condition, or is recovering from an accident or surgery, that will keep him from attending school for a short time. Can he receive any special services to help him stay current with his education?

Yes.  Under California law, students enrolled in public school with temporary disabilities — for whom it is impossible or unadvisable to attend regular classes or an alternative education program — may receive individual instruction, even if they are not eligible under the special education or Section 504 laws.  Under California law, “temporary disability” means a physical, mental, or emotional disability that occurs while the student is enrolled in regular day classes or an alternative education program and after which he can be reasonably expected to return to school.  “Individual instruction” means instruction provided to the student at home, in a hospital or most other residential health facilities.  A temporary disability shall not include a disability for which a pupil is identified as an individual with exceptional needs. [California Education Code Section (Cal. Ed. Code Sec.) 48206.3.]

(14.2) Do the Americans with Disabilities Act (ADA) and the Rehabilitation Act (Section 504) also protect my child if she has a condition that is temporary, episodic or in remission?

Yes. If a temporary illness or condition substantially limits a child in a major life activity for an extended period of time, she is protected under the ADA. This protection applies to both having an actual disability and having a record of a disability. [28 C.F.R. Sec. 35.108(d)(1)(ix).] Similarly, an illness that is episodic or in remission is a disability under the ADA if it substantially limits a major life activity when active. [28 C.F.R. Sec. 35.108(d)(1)(iv).]

The child is equally protected for any of these conditions under Section 504. ADA standards, including its definition of disability, are incorporated into Section 504. [29 U.S.C. Sec. 794(d).] As such, a child in any of these situations is protected against discriminatory acts based on her disability. [29 C.F.R. Sec. 104.4.] She may also be entitled to:

1. Reasonable accommodations in order to have an equal access to the school programs as children without disabilities; or
2. Special education and related services in order to receive a free and appropriate public education (FAPE). See Protecting Students with Disabilities, 67 IDELR 189, (OCR 2015).

The determination of whether a temporary illness or condition substantially limits a major life activity for an extended period of time should be made on a case-by-case basis, taking into account:

1. The duration, or expected duration of the impairment; and
2. The extent to which the condition actually limits a major life activity. See Protecting Students with Disabilities, 67 IDELR 189 (OCR 2015).

There is no established rule on what is an "extended period of time". However, OCR has stated that Districts should not interpret this provision rigidly. For instance, OCR has found that a California District should have evaluated a child for Section 504 accommodations when he had to use a wheelchair for four months as a result of a severe leg break. [Anaheim City (CA) Sch Dist., 115 LRP 19319 (OCR 12/02/14).] 

In an opinion letter, OCR has provided the following analysis on the condition of broken limbs, which can serve as guidance in other cases:

“Neither Section 504 nor the ADA contemplate that only "life-long" disabilities are covered. The answer depends, once again, on whether the broken limb constitutes an impairment that significantly limits a major life activity. The significance of the impairment relates both to its severity and to its duration. Coverage depends upon an evaluation of all the facts in each situation.

For example, a right-handed student broke his left arm and the break is expected to heal normally, without complications. This would probably not constitute a disability because the impairment will heal within a short period of time and, even during its worst phase, would not prevent the student from attending school or from doing written assignments.

On the other hand, a student broke both legs, recovery is delayed by complications and surgeries, and the entire period of disability will last for many months. In this example, the condition would likely be covered because the impairment prevents the student from walking and will not heal within a period of time that is typical for such injuries. Furthermore, the amount of time is sufficiently long to suggest that the student's educational program will be significantly disrupted.

There are no hard and fast rules as to the specific temporary impairments that may constitute disabilities under Section 504 and the ADA. Therefore, it is not possible to list conditions that will always be considered disabilities. Schools must evaluate these conditions on a case-by-case basis. If, after the evaluation, the school district concludes that the condition does constitute a disability, the school must evaluate the student's needs to determine what support services are required if any. However, the evaluation does not have to be extensive or time consuming, but simply enough to determine what services or aids the child needs in order to continue to receive an appropriate education.” [Letter to Rahall, 21 IDELR 575, (OCR 1994).]

(14.3) Who is responsible for providing individual instruction to my child while he is at home or is temporarily hospitalized?

While your child is at home, the school district in which you reside is responsible for providing individual instruction.  If your child is hospitalized in a hospital within your district of residence, that same district will be responsible for individual instruction.  If your child is hospitalized in a hospital outside your district of residence, the district in which the hospital is located is responsible for instruction.  [Cal. Ed. Code Secs. 48206.3(a) & 48207.] 

(14.4) How can I ensure that my child, who is hospitalized in another school district, receives his needed educational services during his hospitalization?

You must notify the district where the hospital is located of your child’s presence in that hospital and of his need for educational services.  Once the district receives that notification, it must, within five working days, determine if your child is able to receive individual instruction.  If he can receive individual instruction in the hospital, instruction must begin within five working days from when that decision is reached.  The district where the hospital is located has the option of providing instruction or contracting with your child’s prior school district.  [Cal. Ed. Code Sec. 48208(b).]  If your child has short hospital stays and is going back-and-forth between your home and a hospital located in another district, you should contact the responsible district(s) to clarify the process for arranging instruction.

(14.5) If my child is not eligible for special education or Section 504, how much individual instruction will he receive?

For purposes of computing average daily attendance for students with temporary disabilities, California law requires that each “clock hour” of teaching time devoted to individual instruction count as one day of attendance.  In other words, in order to receive full state funding for a day of attendance, a district need only provide one hour of instruction to that student. The law also says that no student can be credited with more than five days of attendance per week.  [Cal. Ed. Code Sec. 48206.3(c).]  So, school districts provide a student with a temporary disabilities one hour per day of instruction while they are home recuperating or until they can return to school. There is no law requiring districts to provide enough individual instruction to each student with a temporary disability to enable him to stay current with all his courses and maintain his grades.

(14.6) If my child is eligible for Section 504 or special education, who determines how much instruction and services are provided at home or in the hospital?

The IEP or 504 team has the authority to recommend services beyond the five hours per week restriction for regular education students.  If your child qualifies for special education or Section 504, the IEP or 504 team, which include parents, will decide the number of hours of instruction and other educational services necessary to meet your child’s individual needs. It cannot be automatically assumed that five hours of instruction will meet his unique needs or be sufficient to include all the instructional and related services necessary for an appropriate education. Service recommendations for special education or 504-eligible students must be based on their unique educational needs.

If your child qualifies for either special education or Section 504, your district must provide educational services based on these student and parent rights: 

1. A student’s right to a free, appropriate public education (FAPE);
2. A student’s right to an appropriate assessment before determining services;
3. A student’s right to an education provided in the least restrictive environment (LRE);
4. A parent’s right to participate in the development of your child’s individual education program (IEP);
5. A student and parent’s right to due process and/or compliance complaint procedures to resolve disagreements about educational placement, services or accommodations or allegation of noncompliance with special education laws; and
6. A parent’s right to help determine and document your child’s educational goals, placement, services and accommodations based on your child’s individual needs. 

See Chapter 1, Information on Basic Rights and Responsibilities.

(14.7) Who qualifies for special education under the “other health impairment (OHI)” category?

Under federal and state law, students are eligible for special education under OHI if they have limited strength, vitality, or alertness (including a heightened alertness to environmental stimuli that results in limited alertness in the educational environment), that is due to chronic or acute health problems, including, but not limited to, a heart condition, cancer, leukemia, rheumatic fever, chronic kidney disease, cystic fibrosis, asthma, epilepsy, lead poisoning, diabetes, tuberculosis, Tourette syndrome and other communicable infectious diseases, hematological disorders, such as sickle cell anemia and hemophilia, nephritis, attention deficit disorder, or attention deficit hyperactivity disorder, and which adversely affects a student’s educational performance.  [34 C.F.R. Sec. 300.8(c)(9); 5 California Code of Regulations (C.C.R.) Sec. 3030(b)(9).] 

An “adverse effect” on educational performance may be measured by a student’s grades, but may also include consideration of other ways in which a student’s condition affects his school activities. School districts tend to read “adversely affect” narrowly and focus solely on academic performance.  The courts take a broader view of educational performance and include consideration of a student's academic, social, health, emotional, communicative, physical and vocational needs.  [Seattle School Dist. No. 1 v. B.S., 82 F.3d 1493, 1500 (9th Cir. 1996).] 

Federal law also distinguishes between educational and academic performance and establishes that educational performance is a broad concept.  For example, students must be assessed by schools in all areas of suspected disability.  [20 U.S.C. Sec. 1414(b)(3)(B).]  Those areas are defined by federal regulations to include: health, vision, hearing, social and emotional status, general intelligence, academic performance, communicative status, and motor abilities.  [34 C.F.R. Sec. 300.304(c)(4).]  Academic performance is only one of the areas in which students must be assessed.  In addition to grades and standardized tests scores, schools must consider how the student’s emotional health or other conditions adversely affect his non-academic performance in social, behavioral and other domains as well.

(14.8) What if the district acknowledges my child’s health condition, but says that he does not really need specialized instruction or that he has above-average academic abilities and, therefore, is not eligible for special education?

In addition to having a qualifying disability under federal law, your child must also “need special education and related services.”  [34 C.F.R. Sec. 300.8(a).]  For example, if your child may regress educationally — and perhaps even fail —because he needs extended and/or intermittent home or hospital-based instructional services, then he likely “needs” special education for eligibility purposes. In addition to academics and health conditions, schools must consider how your child’s emotional health or other conditions adversely affect his non-academic performance.

Under state law, your child qualifies if he has an impairment which “requires [specialized] instruction and services which cannot be provided with modification of the regular school program” in order to ensure FAPE is provided to the student.  [Cal. Ed. Code Sec. 56026(b).]

Above-average intelligence or academic ability by itself does not disqualify a student for special education.  [Corchado v. Board of Education 86 F. Supp. 2d 168 (W.D.N.Y. 2000); Letter to Ulissi 18 Individuals with Disabilities Education Law Reporter (IDELR) 683 (U.S. Department of Education, Office of Special Education Programs (OSEP) 1992).]  So, even though a student may have above-average intelligence or academic ability, you could still show that the student’s condition has an “adverse effect on educational performance” as required by the OHI category.  Regardless of intelligence or ability, a student’s condition must have an adverse impact on a student’s educational functioning in order for him to qualify for special education services. See Chapter 3, Information on Eligibility Criteria and Q. 14.7 above for more information about OHI and “adverse affect”.

(14.9) What is a “home instruction” placement for a student who qualifies for special education?

Home instruction (sometimes called “home/hospital”) is an educational program option available to students with disabilities who cannot be educated in a public school setting.  Typically, students in this placement have significant health needs or significant behavioral challenges and have struggled to attend school in a public school behavioral class, non-public school or mental health setting.

Any home instruction program must be individually designed to assure that progress toward goals and objectives continues, even if the program is being provided at the student’s home.  The law also requires that students have access to — and make progress in — the general education curriculum.  [20 U.S.C. Sec. 1414(d)(1)(A)(i).]  All the same procedures must be followed by the IEP team in developing an IEP for a student to be instructed at home as are followed for any other special education student.  [Letter to Boney 18 IDELR 537(OSEP 1991).]

For a student with an IEP, services are determined by the IEP team including the type, length and amount of instructional services. This is different from the home- or hospital-based instruction that a student with a temporary disability, (who is not a Section 504 or special education student) may receive, where one hour per day is permissible. See Q. 1 above.   

For the special education student, an arbitrary limit of one hour per day of home instruction, without individualized assessment and a determination that such a limit will result in educational benefit, is not designed to meet that student’s unique needs.  Educational benefit means progress toward the central IEP goals and objectives.  [County of San Diego v. Special Education Hearing Office, 93 F.3d 1458, 1467 (9th Cir. 1996).]  If the district insists on a limit of one hour per day and you disagree, a parent may file a compliance complaint or file for due process.  See Chapter 6, Information on Due Process/Compliance Procedures.

(14.10) If my child will require accommodations or other support services once he returns to school after a long absence, must the district develop a plan in advance to provide support, services or accommodations?

If your child is eligible for special education, any services or accommodations needed to help with his transition back to school should be discussed at an IEP team meeting and written into an IEP prior to his return to school. [5 C.C.R. Sec. 3051.4 (d).] You can request the IEP meeting as soon as you know when your child will return to school in order to allow enough time for the special education process to be completed prior to your child re-entering public school. Once the district has received your written request for an IEP meeting, the meeting must be held within 30 days from the date your school district receives your written request. [Cal. Ed. Code Sec. 56343.5.]

Section 504 does not specifically address this issue. However, you may request a 504 plan meeting at any time to discuss services needed once a student has returned to school. There is no timeline for holding a 504 plan meeting.

If your child is a general education student, the district does not have to provide support, services or accommodations.  However, you should contact the district to discuss your child’s needs and develop an informal, non-binding agreement to support him once he returns to school.  In light of the illness or serious health condition, you should consider making a referral for Section 504 and special education eligibility. 

(14.11) If my child becomes eligible for special education because of his health condition, will this affect his ability to go to college?

No. Under Section 504 and the Americans with Disabilities Act (ADA) colleges and universities cannot discriminate on the basis of disability by denying admission to a qualified individual.  [42 U.S.C. Sec. 12182(b)(1)(A)(i); 34 C.F.R. Sec. 104.42(a).]  

It is helpful to have an IEP or 504 plan to demonstrate your child's eligibility under Section 504 at the post-secondary level and to identify services and accommodations he may need.  Make sure your child takes the necessary units in the required subject areas and college preparatory courses, as appropriate, in order to earn a high school diploma.  Your child must also pass any required proficiency test or exit exam.  See Chapter 11, Information on District-Wide Assessments/ Graduation Requirements.  Be sure that your child’s special education identification, program and services do not result in his being placed on a “track” leading to a certificate of completion rather than a diploma.

Beginning at age 16, or earlier, your child’s IEP must include appropriate, measurable post-secondary goals based on age-appropriate transition assessments related to training, education, employment, and independent living skills, where appropriate.  The IEP must also contain a statement of needed transition services that focus on your child’s courses of study (such as participation in advanced-placement courses or a vocational education program).  [Cal. Ed. Code Sec. 56345(a)(8).]  If your child’s post-secondary educational goal is admission to a college or university, the IEP should specify the requirements necessary to earn a diploma and the transition services needed to assist him in reaching that goal.  See Chapter 10, Information on Transition and Vocational Education.

(14.12) Because of absences or learning problems associated with his condition or treatment, the district says my child should be enrolled in basic general education courses and that it has no duty to provide accommodations in his honors or advanced placement (AP) classes. Is this true?

No.  The school district must provide special education or Section 504 services based on your child’s unique needs including health and academic needs.  If your child is attending honors or AP classes, the school district must provide appropriate educational supports and accommodation for your child to be educated in the least restrictive environment.  See Chapter 7, Information on Least Restrictive Environment.  If there is a disagreement over appropriate accommodations, supports or placement in honors or AP classes, you can file for due process.  See Chapter 6, Information on Due Process/Compliance Procedures. 

In addition, Section 504 protects both special education students and those on 504 plans from discrimination in programs that receive federal financial assistance.  These include honors and AP classes.  Discrimination is prohibited in any aid, benefit, or service provided by the public school.  [34 C.F.R. Sec. 104.4(b)(1).]  For a given activity, the district must provide related aids and services to meet the needs of the student with a disability as adequately as the needs of students without disabilities.  [34 C.F.R. Sec. 104.33(b)(1).] 

While a district cannot refuse services or accommodations to students in honors or AP classes under Section 504, taking an AP or honors classes may mean that the student is ineligible for special education.

(14.13) If my child receives instruction at home, can the district require that a parent be present during periods of instruction?

Although there is no California law or case requiring a parent to be at home during periods of instruction, such a policy would probably be upheld for a child under 18.  The one federal court of appeals that addressed this question found that such a policy does not violate the Individuals with Disabilities Education Act (IDEA) or Section 504.  [Daniel O. v. Missouri State Board of Ed., 210 F.3d 378 (8th Cir. 2000).]  

(14.14) Will I have to purchase any necessary equipment, like a computer or other technology, if my child receives home instruction?

No.  Any equipment or technology necessary to enable your child to benefit from home instruction, to access and make progress in the general curriculum, or to ensure progress on his IEP or 504 goals must be provided as part of his FAPE.  [20 U.S.C. Sec. 1401(9); 34 C.F.R. Secs.  104.33(c)(1) and 300.105.]  If a student with a temporary disability (who is not a 504 or special education student) needs the use of a device, you should argue that the device must be provided by the district in order to facilitate the required home instruction.  [Cal. Ed. Code Sec. 48206.3.]

(14.15) If my child has a communicable disease, can the district refuse to provide a home instructor or prohibit him from attending school on the basis of a risk to staff or other children?

Under state regulations, a student “while infected with any contagious or infectious disease may not remain in any public school.”  [5 C.C.R. Sec. 202.]  However, a district policy that denies home instruction or school attendance to a student with a communicable disease on the ground of risk to others will be closely examined by the courts.  At least one court has held that these factors shall be considered: 

1. How great the risk really is in terms of how the disease is transmitted;
2. The duration of the risk;
3. How great the risk is in terms of the consequences of infection;
4. The likelihood of transmission of the disease; and
5. The reasonable steps that could be taken to reduce any risks.  [Martinez v. School Board of Hillsboro County, 861 F.2d 1502, 1505 (11th Cir. 1988).] 

(14.16) My child needs to take his medication while at school. What assistance must the school provide to make sure this happens?

Medications must be administered to students in special education or with Section 504 plans by school personnel if their individualized plans require it.  [5 C.C.R. Sec. 610(d).]  The Office for Civil Rights (OCR) has found that a district’s refusal to administer a student's medication as part of a 504 plan is discriminatory under Section 504.  [San Juan Unified School District, 20 IDELR 549 (W.D. Cal. 1993).]  The same reasoning should apply to a student with an IEP.

However, these services are not only available to students with disabilities, but also to students in regular education.  State law provides that school districts may use school nurses or others to assist students in taking their medications (1) if the student's authorized health care provider specifies the method, amount and time of medication administration (and any other relevant information required by the school); and, (2) if the parent provides a written request for this assistance.  An authorized health care provider is someone licensed in California to prescribe medication.  [5 C.C.R. Secs. 600 & 601(a); Cal. Ed. Code Sec. 49423.] 

Medications may include prescription or over-the-counter medications, supplements, and herbs.  [5 C.C.R. Sec. 601(b).]  The regulations do not prohibit any particular medication from being administered at school, such as Diastat for seizure control.  If a student seeks staff assistance with taking a non-prescription medication, it is likely that a physician's authorization will be required.

 As part of your written request for staff assistance in the administration of medication, the district may require that you give permission for the district to communicate directly with your child's health care provider regarding the provider's written authorization.  [5 C.C.R. Sec. 603(a)(2).]  If you are concerned that school staff may attempt to discuss things other than details of your child’s medication administration with the doctor, make sure that any authorization is specifically limited to matters related to medication administration.  If the district provides a broad consent form, you should add a sentence or two above your signature, limiting the district’s authorization to matters related to medication administration.  You should also give a copy of the authorization to the doctor and clarify that it is limited to the details of medication administration.

(14.17) Can my child administer medications to himself without the involvement of district staff?

Yes.  Students in special education or with Section 504 plans have the right to self-administer medication if their individualized plans require it.  [5 C.C.R. Sec. 610(d).] 

But, students in regular education may also self-administer medication. As long as the district receives certain written statements from your child's health provider and you, he can carry and self-administer prescription auto-injectable epinephrine or inhaled asthma medication for asthma.  The student's physician or surgeon’s statement shall include the medication’s name, method, amount and administration time schedules.  You will be required to give your written consent that your child may self-administer and that school staff may communicate directly with your child’s health care providers.  In addition, districts may provide epinephrine auto-injectors to trained personnel to provide emergency medical aid to persons experiencing an anaphylactic reaction.  [Cal. Ed. Code Sec. 49414(a).] 

In addition, if your child has diabetes and is able to self-test and monitor his blood glucose level, he will be allowed to test his level and provide diabetes self-care at school, upon your written request.  This can occur in the classroom or any other area of the school, during any school-related activity and (upon your specific request) in a private location.  You will also need to provide authorization from his health care provider. [Cal. Ed. Code Sec. 49414.5(c).]

You will also need to provide a liability release (waiver) in the event your child suffers an adverse reaction from self-administration.  [Cal. Ed. Code Secs. 49423(b)(2) & 49423.1(b)(2).]  A general release from civil liability would not protect a school district from liability for injuries resulting from a staff person’s negligence.  Any document describing a particular health care service involving school staff must be very clear as to how the service is to be performed.  Districts may provide volunteer school personnel with training on emergency medical assistance for students with diabetes who experience severe hypoglycemia.  [Cal. Ed. Code Sec. 49414.5(a).]  There is no requirement that anyone volunteer for this training.  A copy of the California Department of Education (CDE) Legal Advisory, Sample 504 Plan and Sample Diabetes Medical Management Plan are available at www.dredf.org/.  

(14.18) In addition to medication administration, is a special education student entitled to complex nursing or other health care services while at school at district expense?

Yes.  The Supreme Court has found, under special education law, that continuous, complex nursing care services are considered "related services" — not "medical services" — if necessary to ensure that students with significant health care needs have access to the public schools and are integrated with nondisabled  students. School districts are responsible for health care services that can be provided by a nurse rather than medical services that are provided by a physician.  [Cedar Rapids Community School District v. Garret F., 526 U.S. 66, 71 (1999).] State law also affirms the right to attend school with health care services at district expense.  [Cal. Ed. Code Sec. 49423.5(f).]  The school district cannot refuse to provide nursing services or to deny attendance based on cost.  

Federal special education regulations clarify that the only medical services a district must provide are for diagnostic and evaluation purposes.  [34 C.F.R. Sec. 300.34(a).]   “Medical services” means “services provided by a licensed physician to determine a child’s medically related disability that results in the child’s need for special education and related services.”  [34 C.F.R. Sec. 300.34(c)(5).]

(14.19) In addition to medication administration, what other health care services must be provided to a student who has a Section 504 plan?

A student with a 504 plan can receive health care services such as suctioning and catheterization.  A district may argue that the provision of these health care services goes beyond "reasonable" in terms of its duty to provide "reasonable accommodations."  OCR has rejected the "reasonable accommodation" standard when analyzing whether a district has provided FAPE under Section 504.  [Letter to Zirkel, 20 IDELR 134 (1993); Madera (CA) Unified School District, 22 IDELR 510 (E.D. Penn. 1995); Bonita (CA) Unified School District, 39 IDELR 8 (W.D. Cal. 2003).]  The same analysis should apply to a student needing health care services in order to attend school — and attend in the least restrictive environment — under Section 504.

(14.20) If my child is a special education student, when can “specialized physical health care services” be provided by someone other than a nurse?

Under state law, “specialized physical health care services” include catheterization, gastric tube feeding, suctioning, or other services that require medically related training.  [Cal. Ed. Code Sec. 49423.5(d).]  These services are typically provided by a school nurse, but also may be provided by other school staff if all of the following conditions are met:

1. The staff are trained in administering the service;
2. The staff must be competent in basic cardiopulmonary resuscitation and knowledgeable about the emergency medical resources available in the community;
3. The staff are supervised by a school nurse or doctor;
4. The service is determined by the school nurse or doctor, in consultation with the student's doctor, to be all of the following:
   1. Routine for the student,
   2. Pose little potential harm for the student,
   3. Performed with predictable outcomes, as defined by the student's IEP, and
   4. Does not require a nursing assessment, interpretation, or decision-making by the school staff.  [Cal. Ed. Code Secs. 49423.5(a)(2)(A)-(D).]

The staff supervision can be “immediate” (physically present), "direct" (school nurse or doctor is in the same building and available for consultation or assistance) or "indirect" (nurse or doctor is available by electronic means to provide any necessary instruction, consultation, or referral).  [5 C.C.R. Sec. 3051.12(b)(1)(D).]  If appropriate supervision is critical to the service, be sure to discuss this with the student’s doctor and provide documentation to the IEP team if necessary. 

The District may insist that a service requires some degree of “nursing assessment, interpretation, or decision making” that cannot be provided by anyone other than a nurse.  If you are concerned whether a nurse or other school staff is necessary to provide this service — or that your child may need to attend a different school with a nurse on site — these are issues to be discussed with your doctor and the IEP team.  The determination about whether a service requires nursing assessment, interpretation, or decision-making must be made in consultation with your child’s doctor.  [Cal. Ed. Code Sec. 49423.5(a)(2).]  If there is a disagreement, you can file for due process.  See Chapter 6, Information on Due Process/Compliance Procedures. 

(14.21) Can the school district require that I pay for my child’s nursing services or use Medi-Cal in order for him to attend school?

No. Services that children need to attend school, and benefit from their education, must be at no cost to the parents.  [20 U.S.C. Sec. 1401(29); 34 C.F.R. Sec. 104.33(c)(1).]

The district must look to other non-educational public agencies, like the Medi-Cal program, to pay for services before using its own funds.  However, you must give your consent for the district to access public benefits or insurance including Medi-Cal.  You do not need to give your consent.  Your refusal to give consent does not relieve the district of its responsibility to insure that all required services are provided at no cost.  [34 C.F.R. Secs. 300.154(a)(1) & (d)(2)(iv).]  The district may not require you to pay out-of-pocket expenses, such as deductibles or co-payments (but the district may pay these costs).  In addition, the district cannot require you to sign up for Medi-Cal or to use your child's Medi-Cal if that use would:

1. Decrease your available lifetime coverage or any other insured benefit;
2. Result in the family paying for services that would otherwise be covered by Medi-Cal and that are required for your child outside of the time he is in school;
3. Increase premiums or lead to discontinuation of benefits; or
4. Risk loss of his eligibility for “home and community-based waivers” based on “aggregate health-related expenditures.”
   [34 C.F.R. Sec. 300.154(d)(2).]

Even if the district requests your consent to use public benefits, and meets the requirements listed above, you may still refuse to give your consent.

(14.22) Can the district insist that I use our family's private insurance to pay for health care services that my child needs during the school day?

A school district may use private health insurance benefits for this purpose only if a parent consents and only if the district informs you that your refusal to consent does not mean the district is relieved of its responsibility to provide all the services your child needs and at no cost to the family.  [34 C.F.R. Sec. 300.154(e).]

(14.23) What must a school district tell you when it asks for consent to use your child's Medi-Cal benefits or private health insurance to pay for a special education related service?

Parental consent is only valid if you have been fully informed of all information relevant to the activity for which consent is being requested and is in your native language or other mode of communication.  You must “understand and agree” in writing.  You should understand that the granting of consent is voluntary and can be revoked at any time.  [34 C.F.R. Secs. 300.154(d)(2)(iv)(A), (e), & 300.9.]

For children with both Medi-Cal and private insurance coverage, parents must be told that use of a child's Medi-Cal can result in the Medi-Cal program initiating third-party recovery against the child's private insurance. This may deplete the private insurance lifetime cap or the lifetime cap on coverage for a particular service or treatment.

(14.24) If I consent to the district using my child's Medi-Cal or private insurance to pay for a special education related service, can I revoke consent?

For services not yet provided, you may revoke consent at any time.  In addition, the law provides that each time a school district seeks to access your child's Medi-Cal or private insurance for this purpose, it must obtain your consent.  For services already provided, you cannot revoke your consent.  [34 C.F.R. Secs. 300.154(d)(2)(iv)(A) & (e)(2).] 

(14.25) If the district's only nurse is stationed at a certain school site, must my child be bused to that school?

The district might attempt to reduce its cost of providing specialized physical health care services to students by concentrating the students on certain school sites where nursing services are already available.  Therefore, state law provides that: "It is the intent of the Legislature that nothing in this section shall cause the placement of [special education students] at school sites other than those they would attend but for their needs for specialized physical health care services."  [Cal. Ed. Code Sec. 49423.5(h).]

(14.26) Can the school district agree to provide my child with a person to perform needed health care services only during school hours, but not for after-school activities or while being transported?

No.  For students with IEPs and those with 504 plans, Section 504 prohibits discrimination against students with disabilities.  Preventing students with disabilities from participating in extra-curricular and non-academic activities (such as counseling services, physical and recreational activities, transportation, special interest groups or school-sponsored clubs, during or after school) is a form of discrimination.  [34 C.F.R. Sec. 104.37.]  In addition, if a student’s IEP specifies any of these types of activities, the related services necessary to enable that student to participate, such as nursing services, must be provided in order to comply with the IEP.  [34 C.F.R. Sec. 300.107.]  

(14.27) If the person who provides my child’s health care services is absent, does my child have to miss a day of school?

No.  However, your child’s IEP team must address this need and service.  The person who provides your child’s health care services is so important to your child’s ability to attend school and benefit from the rest of his educational program. When that person is absent, your child’s program may not be able to be implemented.  Therefore, you should insist that some kind of back-up system be developed and included in your child’s IEP or Section 504 plan for those times when the provider is absent.  At a minimum, the back-up plan should specify the provider’s obligation to timely notify the district of an absence, so that the district can arrange for a qualified substitute provider who has received previous training. 

(14.28) My child needs access to a marijuana-based product for medical reasons. Can she have it at school?

According to a decision by the Office of Administrative Hearings, (OAH), if a child’s need for medical marijuana or a derivative meets the requirements of California’s Compassionate Use Act, she should be permitted to access it on the school campus and on the school bus. [Rincon Valley Union Elementary School District, 73 IDELR 25, (SEA CA 2018).] The case involved a five year-old child with Dravet syndrome who needed tetrahydrocannabinol (THC )oil as an emergency seizure medication. District offered her an IEP for home instruction claiming that she could not attend school because federal and state law prohibited possession and use of the substance at a school site or on a school bus. The ALJ rejected District’s argument stating the LRE mandate entitled the child to attend school alongside her peers. The ALJ also found that District was mistaken in its reading of the applicable laws.

The decision explained that California’s Compassionate Use Act expressly provided an exemption under specific conditions. A child is eligible for the exemption if she:

1. Has a serious illness;
2. A physician has determined that the use of marijuana would benefit the child’s health in the treatment of her illness; and
3. The physician has recommended the use for this purpose. [Cal. Health & Saf. Code Sec. 11362.5(b)(1).]

The scope of illnesses covered under the Compassionate Use Act is described broadly as “cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.” [Cal. Health & Saf. Code Sec. 11362.5(b)(1)(A).] The statute then specifically exempts the patient’s use of medical marijuana and the possession of marijuana by her and her primary caregiver from any criminal prosecution where it is prescribed for medical purposes of the patient on a written or oral recommendation or approval of a physician. [Cal. Health & Saf. Code Secs. 11362.5(b)(1)(B) and 11362.5j(d).] A primary caregiver is defined as “the individual designated by the person who has consistently assumed responsibility for the housing, health, or safety of that person.” [Cal. Health & Saf. Code Sec. 11362.5(e).]

The ALJ concluded that the child’s need for THC oil met all legal conditions and she and her mother, who was her primary caregiver, were protected under the Compassionate Use Act. Moreover, a nurse who would administer the oil under prescribed conditions, was equally covered as she would be acting as the agent of the child’s mother.

The ALJ acknowledged that use and possession of marijuana under federal law was still classified as a schedule I item under the US Controlled Substance Act (CSA). However, he laid out a series of statements and actions by the Department of Justice (DOJ), the President and Congress all showing a clear intent not to initiate a legal action or prosecution where the use is for medical purposes.

(14.29) In addition to instruction and related services, are there other specialized services available for a child who has an IEP due to a chronic illness or an acute health problems?

If your child is eligible for special education under other health impairment (OHI), her IEP team may provide specialized services including, but not limited to:

1. Individual consultation;
2. Home or hospital instruction; and
3. Other instructional methods using advanced communication technology.
   [5 C.C.R. Sec. 3051.17(a).]

Moreover, for a student whose medical condition is in remission or in a passive state, the IEP team shall specify the frequency for monitoring the pupil's educational progress to assure that the illness does not interfere with her educational progress. [5 C.C.R. Sec. 3051.17(b).]

When the student experiences an acute health problem which results in her non-attendance at school for more than five consecutive days, upon notification of the classroom teacher or the parent, the school principal or designee shall assure that an IEP team is convened to determine appropriate educational services. [5 C.C.R. Sec. 3051.17(c).] If there is a pattern of sporadic illness, the IEP team shall convene to consider alternative means for the student to demonstrate competencies in the required course of study so that the cumulative number of absences do not prevent educational progress. [5 C.C.R. Sec. 3051.17(d).]