k-12 students with pain disorders: provision of services ...€¦ · a. section 504 of the...
TRANSCRIPT
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 1
K-12 Students with Pain Disorders: Provision of Services and Accommodations under § 504 and IDEA
Prepared for Presentation at the 2019 Education Law Association Annual Conference Norfolk, Virginia
By
Kelly A. Sherrill Linkous, Esq., J.D., Ph.D. Assistant Professor and Program Co-Director, Educational Leadership and Administration,
The George Washington University
and
Kimberly S. Payne, J.D., ABD Music Educator
Fauquier County Public Schools, Virginia
and
Jennifer Rippner, Ph.D., J.D. Visiting Lecturer of Education Law
Indiana University
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 2
I. INTRODUCTION
The purpose of this paper is to provide an overview of the law impacting provision of
educational opportunities, accommodations and services to students with pain disorders. This
paper utilizes § 504 of the Rehabilitation Act of 1973 (§ 504), the Americans with Disabilities
Act (ADA), and the Individuals with Disabilities Act (IDEA) and their accompanying
regulations to identify legal issues that arise with students who suffer from primary pain
disorders such as migraine headaches, lupus, fibromyalgia, endometriosis, Crohn’s/colitis, and
other pain-inducing disorders.1 The paper will review relevant sections of the aforementioned
statutes and regulations and the case law and due process hearing decisions deciding issues
involving students with pain disorders.
Students with pain disorders experience numerous and varied symptoms and
repercussions because of their disorders. Students who experience pain due to frequent migraine
headaches, fibromyalgia, lupus, chronic fatigue syndrome, and similar disorders may miss a
substantial amount of school (absenteeism and tardiness), may not be able to complete
assignments in the time expected because of the interference of pain and lack of sleep, may have
trouble paying attention in class, and may have physical limitations impacting their ability to
engage in note taking, paper writing, reading, and group projects. Indeed, they may be unable to
attend school at all. These limitations and repercussions may affect their academic performance,
although a district may not focus exclusively on the student’s major life activity of academic
learning in determining whether she is eligible for FAPE under § 504.2
This paper will review the issues, facts and analysis from relevant case law and state due
process hearing decisions to discuss how courts or hearing officers decided issues involving
● application of § 504, ADA and/or IDEA;
1 This paper focuses on students whose primary disability is a pain disorder. It excludes cases that involve students who have other primary disabilities, such as autism, emotional disturbances, intellectual disabilities, or specific learning disabilities, and who also have concurrent pain disorders. Importantly, however, school districts must accommodate and provide FAPE for any concurrent disabilities experienced by students who otherwise receive services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. (2004), or under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 705, 794 et seq. (1973), as amended by the Americans with Disabilities Act Amendments of 2008, 42 U.S.C. § 12102 et seq. (2008). 2 See, e.g., Letter to McKethan, 23 IDELR 504 (OCR 1995).
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 3
● eligibility determinations and provision of FAPE under any of these statutes;
● legal issues that presented for students with pain disorders;
● what services and accommodations were appropriate for students with a variety of
pain disorders; and
● other issues that arose in these decisions.
II. STATUTORY OVERVIEW
A. SECTION 504 OF THE REHABILITATION ACT OF 1973 AND THE 2008 AMERICANS WITH DISABILITIES ACT AMENDMENTS
The majority of cases and due process hearing decisions apply § 504 to issues involving
the education and treatment of students with pain disorders. Eligibility for services and
protection under § 504 require a school division to determine that a student, as a result of an
evaluation, has a “physical or mental impairment” that “substantially limits one or more major
life activities.”3 Major life activities include, but are not limited to caring for one’s self; eating;
performing manual tasks; sleeping; walking; bending; seeing; standing; hearing; lifting;
speaking; reading; breathing; concentrating; learning; thinking; working; and communicating.4
Congress also provided that “a major life activity also includes the operation of a major bodily
function, including but not limited to, functions of the immune system, normal cell growth,
digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions.”5 Importantly, the United States Office for Civil Rights (OCR), the
agency with enforcement power over ADA and § 504, has warned schools not to limit their
evaluation inquiry to the major life activity of “learning.”6
The 2008 Amendments to the ADA – which apply to construction of § 504 – state that
the “definition of disability . . . shall be construed in favor of broad coverage of individuals . . . to
3 29 U.S.C. §705(20)(B); 42 U.S.C. §12102(1). 4 34 C.F.R. §104.3(j)(2)(ii); 42 U.S.C. §12102(2)(A). 5 42 U.S.C. §12102(2)(B). 6 See, supra, note 2.
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 4
the maximum extent permitted by the terms of this Act.”7 Further, determination of “whether an
individual’s impairment is a disability . . . should not demand extensive analysis.”8 And it
prohibited school districts from considering the ameliorative effects of most mitigating measures,
such as medications or devices, in determining whether a person’s impairment is substantially
limiting.9 Finally, an episodic impairment, such as migraine headaches or pain related to
illnesses such as Crohn’s disease and fibromyalgia, may still qualify a person under § 504/ADA
as long as it is substantially limiting when active.10 An impairment need not prevent or severely
or significantly restrict a major life activity in order to be substantially limiting.11 OCR has stated
that “in virtually every case, a determination in favor of disability will be made.”12
Once a school division determines that a student has a physical or mental impairment that
substantially limits at least one major life activity, it must determine what – if any – services the
student must receive in order to receive a free, appropriate public education (FAPE). The § 504
regulations provide that a “recipient that operates a public elementary or secondary education
program shall provide a free appropriate public education to each qualified [person with a
disability] who is in the recipient’s jurisdiction, regardless of the nature or severity of the
person’s [disability].”13 The § 504 regulations further state that provision of general or special
education and related aids and services should be “designed to meet individual educational needs
7 42 U.S.C. §12102(4)(A). 8 42 U.S.C. §12101(b)(5). 9 42 U.S.C. §12102(4)(E). 10 42 U.S.C. §12102(4)(D). 11 42 U.S.C. §12101(a)(8). 12 Dear Colleague Letter, 58 IDELR 79 (OCR 2012). 13 34 C.F.R. § 104.33(a). ADA also contains substantive requirements akin to FAPE: “no qualified individual with a disability shall, by reasons of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132. OCR has stated that school districts must provide FAPE to comply with the ADA. Letter to Rahall, 21 IDELR 575 (OCR 1994).
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 5
of [disabled] persons as adequately as the needs of [nondisabled] persons are met.”14 While not
required, school districts may ensure that they meet FAPE through an Individual Education
Program (IEP) as it would if the student were eligible under IDEA.15
Courts and OCR are divided on the standard required for providing a FAPE under § 504.
The federal courts have required that schools provide reasonable accommodations to § 504-
eligible students.16 Federal courts will find that a school district has met its FAPE obligations
under § 504 if the education programs for students with disabilities are designed to meet their
individual needs to the same extent that the needs of nondisabled students are met. OCR,
however, has stated that this standard is too low: “The ‘reasonable accommodations’ legal
standard is not applicable to FAPE under § 504.”17 If a school district provides special education
and related services that are appropriate under IDEA, then it has met the obligations of § 504
(although courts and OCR debate whether meeting the IDEA standard for FAPE is required for
students served only under § 504). The United States Department of Education’s Office of
Special Education Programs (OSEP) has distinguished the obligation to provide FAPE under §
504 as consisting of either regular or special education, and related aids and services, as
implemented by any appropriate means.18 Importantly, a school district has an obligation to fund
whatever services are needed to deliver FAPE under § 504, without regard to the costs of such
services.19
14 34 C.F.R. § 104.33(b)(1)(i). 15 34 C.F.R. § 104.33(b)(2). 16 See, e.g., J.D. v. Pawlet Sch. Dist., 224 F.3d. 60, 71 (2d Cir. 2000); Brado v. Weast, 2010 U.S. Dist. LEXIS 5932, at *11 (D. Md. Jan. 26, 2010) (“to comply with [§ 504], MCPS must provide reasonable accommodations for handicapped students,” citing 29 U.S.C. § 794). 17 Letter to Zirkel, 20 IDELR 134 (OCR 1993). 18 Letter to Williams, 21 IDELR 73 (OSEP 1994). 19 Letter to Zirkel, 16 IDELR 1177 (OCR 1990); Letter to Zirkel, 20 IDELR 134 (OCR 1993).
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 6
B. INDIVIDUALS WITH DISABILITIES EDUCATION ACT (“IDEA”)
If a student’s pain disorder meets the eligibility criteria of “Other Health Impairment”
under IDEA, and the child, “by reason thereof, needs special education and related services,”20
then the child would qualify for eligibility and receive services under IDEA. Importantly,
IDEA’s accompanying regulations require that, to need special educational and related services
under IDEA, the child’s condition must adversely affect her educational performance.21
Congress left the states to define the terms “adversely affects a child’s educational performance”
and “needs special education and related services.”22
A child with an Other Health Impairment has –
limited strength, vitality, or alertness, including a heightened alertness to environmental
stimuli, that results in limited alertness with respect to the educational environment, that
(i) is due to chronic or acute health problems such as asthma, attention deficit disorder or
attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia,
lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette
syndrome; and
(ii) adversely affects a child’s educational performance.23
Students with pain disorders easily meet prong (i) of the regulatory definition for Other Health
Impairment. The IDEA eligibility issue involves prong (ii), whether the pain disorder also
adversely affects that child’s educational performance. Several decisions have turned on
whether a student’s pain disorder adversely affected her education,24 while several more cases
20 20 U.S.C. § 1401(3); see also 34 C.F.R. § 300.8(a)(1). 21 34 C.F.R. § 300.8(c)(1)-(c)(13). 22 J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 66 (2d Cir. 2000). For instance, Massachusetts finds that a disability “adversely affects a child’s educational performance” when “the student is unable to progress effectively in the general education program without the provision of specially designed instruction, or is unable to access the general curriculum without the provision of one or more related services . . . .” 603 C.M.R. §28.05. 23 34 C.F.R. § 300.8(c)(9). 24 See S.P. v. Fairview Sch. Dist., 2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30, 2014) (parents contended that student with severe refractory migraine headaches should have been found eligible under IDEA as a student with an OHI because the migraines caused his failure to
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 7
and selected due process hearing decisions merely reference students with pain disorders who
qualified for special education and related services as OHI under IDEA.25
attend school; the court declined to rule on the merits of this claim due to insufficient pleading); Brado v. Weast, 2010 U.S. Dist. LEXIS 5932 (D. Md. Jan. 26, 2010) (holding that a student with Postural Orthostatic Tachycardia Syndrome, or POTS, that caused her to experience severe pain throughout her entire body was not eligible under IDEA as a student with OHI because no medical or educational experts testified that she required altered instruction, such as hospital/homebound instruction, to make progress in the regular curriculum); Boston v. Bureau of Special Educ. Appeals, 2008 U.S. Dist. LEXIS 39992, at *18 (D. Mass. Apr. 30, 2008) (finding that a student with Crohn’s disease which limited his ability to attend school, thereby limiting his ability to progress from grade to grade, “comes within the definition of a child with a disability under IDEA”); Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 150 (2d Cir. 2002) (finding that a student with chronic fatigue syndrome and fibromyalgia could have been found eligible under IDEA due to “disabling physical ailments that limited her strength, vitality and alertness and made it impossible for her to attend school”); J.C. v. Cumberland Valley Sch. Dist., ODR No. 14638-1314KE (SEA Pa. Feb. 3, 2015) (agreeing with school district’s determination that student with Crohn’s disease was not eligible under IDEA as a student with an OHI because his inability to attend school was not adequately proven to be related to his disability; student was eligible for services under § 504 only); Forest Hills Pub. Schs., 2011-782 (SEA Mich. Jan. 27, 2012) (finding that a school district should have found a student with chronic fatigue immune deficiency syndrome and fibromyalgia eligible as a student with OHI under IDEA because her disorders led to truancy, “limit[ing] the amount of time she [was] able to spend on her education and, in turn, [affected] her educational performance,” at *23). 25 While not at issue in the case, the court in D.G. v. Flour Bluff Indep. Sch. Dist., 481 Fed. Appx. 887, 893, 2012 U.S. App. LEXIS 11100, at **17 (5th Cir. June 1, 2012) referenced a school district’s provision of services under IDEA for a student whose sole disability at the time was rheumatoid arthritis (“D.G. eventually was determined eligible under IDEA for special education . . . on a different basis – his recently diagnosed and worsening rheumatoid arthritis.”). In William W. v. Board of Educ. of Moline Sch. Dist. No. 40, 2007 U.S. Dist. LEXIS 3959 (C.D. Ill. Jan. 18, 2007), a student who had asthma, GERDS, migraines, rhinitis and lactose intolerance. was eligible for special education services under IDEA. The student in the William W. case, however, had extensive medical problems beyond the pain disorder of migraines that impacted her learning. The issue in this case involved eligibility as a student with speech and language disabilities. Accommodations related to the student’s migraine headaches was not at issue.
See, also, E.E. v. Mifflinburg Area Sch. Dist., 14254/13-14KE (SEA Pa. Mar. 18, 2014) (a student with chronic fatigue syndrome and migraine headaches found eligible for special education and related services under IDEA as a student with an OHI failed to receive FAPE); Parents v. San Jose Unified Sch. Dist., OAH Case No. 2010050065 (SEA Cal. Sept. 29, 2010) (student with Systemic Juvenile Idiopathic Arthritis was eligible under IDEA as a student with an OHI); Irvine Unified Sch. Dist. v. Student, OAH Case No. 2005090857 (SEA Cal. Mar. 13, 2006) (student with Juvenile Dermatomyositis, an autoimmune inflammatory disorder, and rheumatoid arthritis, was eligible as a student with OHI under IDEA); Chippewa Valley Sch. Dist., SEH 1997-107a (SEA Mich. Oct. 28, 1997) (referencing the IDEA eligibility of a student
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 8
III. LEGAL ISSUES
A. ELIGIBILITY
All cases reviewed by the presenters involved students with primary pain disorders who
were eligible for services either under § 504 or under IDEA. As discussed above, students with
pain disorders almost unequivocally have a major life activity affected by such disorder,
qualifying them for services under § 504.
The presenters found only one case involving a school district’s failure to find a student
with a pain disorder eligible under either § 504 or IDEA.26 The presenters found multiple cases
and due process hearing decisions where students were already eligible for special education and
related services under IDEA prior to the proceedings,27 and three cases where the student’s
eligibility for special education and related services under IDEA was at issue.28
In Weixel v. Bd. of Educ. of N.Y.,29 the Second Circuit considered whether a student with
chronic fatigue syndrome and fibromyalgia was eligible under IDEA due to “disabling physical
ailments that limited her strength, vitality and alertness and made it impossible for her to attend
school.”30 Ms. Weixel, proceeding pro se, alleged that her daughter Rose became “chronically
sick with infected tonsils, swollen glands, muscle and joint pains, headaches, nausea, abdominal
pains, exhaustion, and intermittent fever” during her seventh grade year.31 Rose was unable to
attend school, and the principal and guidance counselor subsequently filed both negligence
with a severe form of migraine, variant headaches due to her inability to attend school and necessity of home-based instruction); but, see, N.H. v. Mathematics, Civics and Sciences Charter Sch., ODR No. 00252/09-10LS (SEA Pa. Dec. 2, 2009) (student with migraine headaches eligible for services under Section 504 only). 26 Weixel, 287 F.3d 138, 147 (2d Cir. 2002). 27 See, supra, note 25. 28 See, supra, note 26. 29 287 F.3d 138, 150 (2d Cir. 2002). 30 Id. at 150. 31 Id. at 142.
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 9
charges and began truancy proceedings against Ms. Weixel.32 Even after Rose’s pediatrician and
immunologist diagnosed her with chronic fatigue syndrome and fibromyalgia and documented
her inability to attend school, the principal and guidance counselor proceeded with complaints
against Ms. Weixel for child neglect.33 Ms. Weixel repeatedly requested disability
accommodations and home instruction for Rose, with no cooperation from the school.34 When
Rose was well enough to attend school, the guidance counselor refused to recognize her
completion of seventh grade through home schooling and refused to promote her to the eighth
grade.35 Ms. Weixel had to appeal several levels up to the central office administrators for Rose
to begin the eighth grade, which they approved; however, because Rose’s illness required her
absence on test day, the school refused to allow Rose to enroll in the Regents-level curriculum,
instead placing her in a lower-level curriculum.36 The guidance counselor instructed Rose that
she could only return to her school if she forfeited enrollment in the Regents-level coursework.37
Thereafter, Ms. Weixel filed formal complaints at the state level and in federal court, pro se,
seeking relief for the alleged discrimination against her daughter.38
The district court held in favor of the school district regarding Rose’s eligibility for
services under both § 504 and IDEA, but the Second Circuit reversed.39 The district court erred
in finding that, because Rose did well academically in homeschooling, she was not eligible for
services under either § 504 or IDEA.40 The Second Circuit held that it was “sufficient for Ms.
Weixel to demonstrate that Rose was substantially limited in a major life activity of central 32 Id. at 142-43. 33 Id. at 143. 34 Id. 35 Id. 36 Id. at 143-44. 37 Id. at 144. 38 Id. at 145. 39 Id. at 147, 149-50. 40 Id.
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 10
importance to her daily life because of her CFS,” and that she sufficiently alleged that CFS
limited her ability to walk, exert herself, and attend class at school.41
The Second Circuit further stated that the school district denied Rose the benefit of
making reasonable accommodations for Rose’s disability by failing to provide her any
meaningful public education for much of the seventh grade, and refusing to provide her with
home instruction necessitated by her disability.42 The circuit court additionally held that Ms.
Weixel submitted a legally adequate retaliation complaint under § 504 because the school district
knew Rose was disabled, knew she was seeking reasonable accommodations under § 504 (a
protected activity), and engaged in a host of retaliatory conduct against Ms. Weixel.43
Finally, the Second Circuit held that Ms. Weixel stated a claim for failure to identify
Rose as a student with an Other Health Impairment (OHI) under IDEA.44 Clearly Rose’s chronic
fatigue syndrome and fibromyalgia were disabling physical ailments that “limited her strength,
vitality and alertness.”45 The condition also made it impossible for Rose to attend school, which
was evidence that the health impairment adversely affected her educational performance.46 As
such, the circuit court treated the inability to attend school because of a disability as affecting
adverse educational performance. For these reasons, the circuit court remanded to the district
court to rule on the merits of the case.47
41 Id. at 147. 42 Id. at 148. 43 Id. at 148-49. 44 Id. at 149-50. 45 Id. at 150. 46 Id. 47 Id. at 151-52. See, also, Forest Hills Pub. Schs., 2011-782 at *23 (SEA Mich. Jan. 27, 2012) (finding that a school district should have found a student with chronic fatigue immune deficiency syndrome and fibromyalgia eligible under IDEA as a student with OHI because her “medical conditions and resulting restrictions are affecting her educational performance,” as “they limit the amount of time she is able to spend on her education”).
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 11
In S.P. v. Fairview Sch. Dist.,48 parents contended that a student with severe refractory
migraine headaches should have been found eligible under either § 504 or under IDEA as a
student with an OHI. Student began experiencing severe migraines at age four, and was 19 years
old at the time of the case.49 Student had 40 absences in Kindergarten, and progressed to 101
absences by the sixth grade.50 The parents often failed to provide written excuses for the
student,51 and by sixth grade requested that the student enroll in cyber education. Still, S.P.
continued to miss school and failed to complete the cyber education requirements.52 At this time,
the parents requested an IDEA evaluation.53 The school district found S.P. ineligible for special
education and related services under IDEA, but offered accommodations under § 504.54 S.P.
remained in cyber school, where he performed better and suffered fewer migraines.55
S.P. eventually returned to the public high school, where the parents refused a § 504
Plan.56 Still, the high school “had prepared and implemented a number of accommodations for
him,” including development of a schedule that enabled him to transition more slowly into
school and extended time to complete his work.57 Further, if he missed school due to a migraine,
a teacher sent work for his father to retrieve.58 He was allowed to use the resource room to lie
down or find a quieter environment, and the school offered individual mental health sessions
48 2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30, 2014). 49 Id. at *2, *4. 50 Id. at *4-5. 51 Id. at *5. 52 Id. at *6-8. 53 Id. at *8-15. 54 Id. at *14-15. 55 Id. at *15. 56 Id. at *16. 57 Id. at *17. 58 Id.
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 12
with a counselor from the mental health facility.59 Even with these permitted accommodations,
S.P. had excessive absences.60 He did not provide doctors’ notes, so the school notified him that
they would have to pursue truancy proceedings.61 The parents did not provide medical
documentation to support any medical reasons for S.P.’s absences.62 Even without medical
information, the school supported the student by providing him with missed assignments and
reassigning him to a resource room two days a week to make up work.63 It also permitted him to
take some courses through cyber school.64 Still, truancy persisted without medical explanation,
so the school instituted truancy proceedings.65
S.P. eventually moved back to taking courses exclusively through cyber schooling, but
even then he was not completing his coursework.66 The parents entered into a § 504 service
agreement with the school district, where S.P. would take cyber classes with flexibility for
completion without time restraints, and allowing waiver of mandated attendance with medical
documentation.67 S.P.’s treating physicians provided written excuses for attendance to the cyber
program, indicating that he continued to suffer from refractory migraine headaches but stating
“that the cyber school program ‘is tailored to him very well. He can take breaks when he has
extreme migraines which are frequent in his case,” and advocating for his continued enrollment
in the cyber program.68
59 Id. 60 Id. at *18. 61 Id. 62 Id. 63 Id. at *19. 64 Id. at *24. 65 Id. at *24-26. 66 Id. at *27-28. 67 Id. at *28. 68 Id. at *28-29.
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 13
The parents filed for a due process hearing, where they presented a special education
consultant who testified that “the school district erred in failing to identify S.P. as disabled under
the ‘Other Health Impaired’ category, because the migraines caused poor school attendance.”69
The hearing officer found in favor of the school district on all counts, holding that the school did
not err by finding S.P. ineligible for services under IDEA, and holding that the school provided
FAPE under § 504.70 The parents appealed to the district court.
On the IDEA eligibility contention, the parents alleged that, because the migraines caused
his failure to attend school, the disability was adversely affecting his educational performance. In
this case, however, the court declined to find that S.P. was eligible under IDEA because the
parents did not provide persuasive evidence on the issue upon request by the court.71
In Brado v. Weast, a Maryland district court similarly held that a student with Postural
Orthostatic Tachycardia Syndrome, or POTS, which caused her to experience severe pain
throughout her entire body from a toddler to an adult, and who was otherwise served under §
504, was not eligible for services under IDEA as a student with an OHI.72 The District of
Maryland district court upheld the hearing officer’s determination of ineligibility because no
medical or educational experts had testified that she required altered instruction, such as
hospital/homebound instruction, to make progress in the regular curriculum.73 In other words,
had her pain disorder affected her ability to attend school and required her to receive her
education through homebound instruction (or virtual instruction), she would have been eligible 69 Id. at *30. 70 Id. at *34. 71 Id. at *49. 72 2010 U.S. Dist. LEXIS 5932 (D. Md. Jan. 26, 2010). 73 Id. at *12-13. Interestingly, the same school district had previously found the student eligible under IDEA, but reversed its decision when it conducted a full and complete evaluation, which included discussions with the student’s treating physicians. The court held that the “record is clear as to her need for frequent breaks, adjusted workloads, alternative test scheduling, and personalized instruction," which was accomplished under her § 504 plan. Id. at *12. The court found that “[b]oth the medical expert testimony as well as the educator testimony . . . indicate that [the student] Molly requires only accommodations . . . [not] special education.” Id. Further, “no medical expert [other than her primary care physician] suggests that Molly required [hospital homebound teaching HHT].” Id. at 13.
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 14
to receive special education and related services under the OHI category in IDEA. And while
the court acknowledged the severity of her disorder, it deferred to the medical professionals on
her ability to attend school, and it referenced her successful academic performance as the reason
she was ineligible under IDEA.
In Boston v. Bureau of Special Educ. Appeals,74 a Massachusetts district court considered
the question of whether a student with Crohn’s disease that limited his ability to attend school,
thereby limiting his ability to progress from grade to grade, “comes within the definition of a
child with a disability under IDEA.” Citing Weixel, the court held that a student whose severe
Crohn’s disease prevented him from attending school, which affected his ability to progress from
grade to grade, “comes within the definition of a child with a disability under IDEA.”75 The case
turned on whether the parents failed to exhaust their administrative remedies by not filing for a
due process hearing, so the court did not decide the issue of IDEA eligibility. Instead, it
instructed the parents that they must exhaust the remedies required under IDEA.76
B. TRUANCY
The reviewed cases and due process hearing decisions overwhelmingly involved some
form of truancy or excessive absences by students with pain disorders.77 When these absences
were causally linked to the student’s pain disorder, as documented by a practitioner, then courts
74 2008 U.S. Dist. LEXIS 39992, at *18 (D. Mass. Apr. 30, 2008). 75 Id. at *18. But, see, J.C. v. Cumberland Valley Sch. Dist., ODR No. 14638-1314KE (SEA Pa. Feb. 3, 2015) (agreeing with school district’s determination that student with Crohn’s disease was not eligible under IDEA as a student with an OHI because his inability to attend school was not adequately proven to be related to his disability; student was eligible for services under § 504 only). 76 Id. at *20-22. 77 See S.P. v. Fairview Sch. Dist., 2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30, 2014); Brado v. Weast, 2010 U.S. Dist. LEXIS 5932 (D. Md. Jan. 26, 2010); Boston v. Bureau of Special Educ. Appeals, 2008 U.S. Dist. LEXIS 39992, at *18 (D. Mass. Apr. 30, 2008); Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 150 (2d Cir. 2002); see, also, J.C. v. Cumberland Valley Sch. Dist., ODR No. 14638-1314KE (SEA Pa. Feb. 3, 2015); E.E. v. Mifflinburg Area Sch. Dist., No. 14254/13-14KE (SEA Pa. Mar. 18, 2014); Forest Hills Pub. Schs., 2011-782 at *23 (SEA Mich. Jan. 27, 2012); N.H. v. Mathematics, Civics and Sciences Charter Sch., ODR No. 00252/09-10LS (SEA Pa. Dec. 2, 2009); Irvine Unified Sch. Dist. v. Student, OAH No. N 2005090857 (SEA Cal. Mar. 13, 2006).
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 15
were more likely to find, as discussed above, that students were eligible under IDEA as a student
with an OHI. A court also was more likely to find retaliation under § 504 when school districts
instituted truancy proceedings in lieu of working to accommodate and educate a student whose
pain disorder caused the absences.78 When, however, a court or hearing officer did not have
evidence that a student’s absences were caused by his or her pain disorder, then the court would
find in favor of a school district on any § 504 retaliation claims.79
C. HOMEBOUND SERVICES OR CYBER INSTRUCTION
Another recurring fact in the cases and surveyed due process hearing decisions involving
students with pain disorders involved provision of Homebound instruction80 or provision of
education through cyber education.81 When a student is too sick to attend school on a day-to-day
basis, and no supplemental aids or services could make attendance at school a possibility, the
homebound instruction82 or instruction through virtual schooling may be appropriate. Indeed, in
78 See, e.g., Weixel, 287 F.3d 138, 150 (2d Cir. 2002). 79 See, e.g., S.P., 2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30, 2014), discussed supra; see, also, N.H. v. Mathematics, Civics and Sciences Charter Sch., ODR No. 00252/09-10LS (SEA Pa. Dec. 2, 2009) (finding that a student’s excessive absences were not due to her migraine headaches; the student rarely saw a doctor for her migraine headaches, and all evaluators stated that she could attend school even when she had a migraine; when at school, she never sought a school nurse to obtain medication or medical help for a migraine). 80 See, e.g., Brado v. Weast, 2010 U.S. Dist. LEXIS 5932 (D. Md. Jan. 26, 2010); Weixel, 287 F.3d 138, 150 (2d Cir. 2002); E.E. v. Mifflinburg Area Sch. Dist., No. 14254/13-14KE (SEA Pa. Mar. 18, 2014); Forest Hills Pub. Schs., 2011-782 at *23 (SEA Mich. Jan. 27, 2012). 81 See S.P. v. Fairview Sch. Dist., 2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30, 2014). 82 State law often governs the requirements for provision of homebound instruction or services. For instance, Ohio law, O.R.C. § 3323.12, provides
The board of education of a school district shall provide home instruction for children with disabilities who are at least three years of age and less than twenty-two years of age and who are unable to attend school, even with the help of special transportation. The board may arrange for the provision of home instruction for a child by a cooperative agreement or contract with a county DD board or other educational agency. For the purposes of determining formula ADM under section 3317.03 of the Revised Code, five hours of home instruction shall be equivalent to attendance for five school days.
For in depth review of the law of homebound services, see Hans P. Graff, Homebound Services under the IDEA and § 504: An Overview of Legal Issues (LRP 2d ed 2013).
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 16
almost every case and due process hearing decision surveyed, presenters found that students with
pain disorders received homebound or virtual schooling for at least part of their educational
program. Importantly, however, provision of homebound or virtual education invokes both §
504’s and the IDEA’s “least restrictive environment” (LRE) mandate. IDEA provides that
to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.83
Section 504’s “least restrictive environment,” or LRE, obligations mirror the IDEA.84 The S.P.
court held that, when a student “cannot physically be educated with his peers in a regular
classroom or participate in a school program [because he] cannot attend school,” then
homebound or virtual/cyber instruction is the least restrictive environment for that student.85
When, however, a student is able to attend school with appropriate accommodations, such as
allowing frequent breaks, adjusting workloads, giving alternative test scheduling, and
personalizing instruction, then homebound instruction is not the least restrictive environment
and is not appropriate.86 School districts may also accommodate students with pain disorders by
shortening their school days,87 enabling students to use assistive technology to complete
assignments and receive instruction,88 chunking assignments and extending deadlines,89 and
providing tutors for additional instruction.90
83 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2). 84 S.P., 2014 U.S. Dist. LEXIS 137567 at *41. 85 Id. at *42-43. 86 Brado v. Weast, 2010 U.S. Dist. LEXIS 5932 at *12-13 (D. Md. Jan. 26, 2010). 87 See, e.g., Hudson Sch. Dist., 58 IDELR 22 (OCR Sept. 30, 2011) (an appropriate accommodation made for a student who experienced chronic migraines was a shortened school day). 88 See, e.g., E.E. v. Mifflinburg Area Sch. Dist., No. 14254/13-14KE (SEA Pa. Mar. 18, 2014); Parents v. San Jose Unified Sch. Dist., OAH Case No. 2010050065 (SEA Cal. Sept. 29, 2010).
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 17
IV. CONCLUSIONS AND RECOMMENDATIONS FOR PRACTICE
Considering both the statutory and case law as applied to students with chronic pain
disorders, there are few substantive legal conclusions that can be made at this time: However,
those that are clear enough to advance are stated below. This section discusses concerns that
accompany these conclusions, along with recommendations that may be useful in assisting
students with pain disorders, their families, and their schools. These areas fall generally under §
504 eligibility and IDEA eligibility.
Aside from the legal considerations, the literature concerning pediatric chronic pain
indicates that there are strong associations between chronic pain and mental health, mood issues,
quality of life concerns, and coping behaviors. All of these domains are potential threats to the
well-being of a student with chronic pain, and may rise to a level of legal significance within the
school setting.91
A. SECTION 504 ELIGIBILITY CONCLUSIONS
Section 504 eligibility is likely to be established and satisfied when a student suffers from
a pain disorder. This is clear both in the language of the act, as well as in the refinements issued
in subsequent court opinions. If the LEA denies eligibility, however, then it is probable that the
symptoms of the pain disorder do not rise to the level at which accommodations are required for
the student to function in school. Those who work in the school setting should observe caution
when considering students with these diagnoses because there exist concerns that relate
specifically to the diagnosis of chronic pain (and related disorders) that clearly place these
disorders in a category requiring special attention.
Concerns regarding § 504 eligibility.
Most importantly, chronic pain disorders are often difficult to observe and detect from a
symptomatic perspective. In other words, they may be easy to miss, or to dismiss depending on
the level of urgency perceived by the observer. The reasons for this are both simple and complex.
89 See, e.g., E.E. v. Mifflinburg Area Sch. Dist., supra n. 87. 90 See, e.g., Hudson Sch. Dist., 58 IDELR 22 (OCR Sept. 30, 2011). 91 See, e.g., Melanie Noel et al., Chronic Pain in Adolescence and Internalizing Mental Health Disorders: A Nationally Representative Study, 157 J. PAIN, 1333 (2016).
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 18
The most common symptoms displayed by pain disorders are “non-specific” in that they could
appear with a variety of physical problems.92 For example, abdominal pain or headache—both
very common symptoms in many chronic pain disorders—may lead an observer to believe that
the individual may be experiencing the onset of a common cold or virus, or is perhaps reacting to
some other kind of normal stress associated with school demands, such as test anxiety. To the
student with chronic pain, however, the effect is one that could be debilitating because of its
continual presence and changing intensity. The natural outcome in the school setting, therefore,
might lead an administrator, teacher, or even the school nurse, to assume that the symptom does
not rise to the “level of concern” to which any action would need to be taken, when in fact, the
student is in real physical distress. Understandably, the highly subjective nature of this type of
visual or outward assessment is often uncomfortable for those who work in the school setting,
the resulting effect often reflecting a decision to maintain the status quo until more definitive
signs of distress appear. One study that looked at pediatric pain and considered the attitudes of
teachers toward these students indicates that there are significant limitations in teachers’ abilities
to recognize and simultaneously address chronic pain in the classroom.93
Complexity enters into the equation when considering the child’s age, maturity level, and
ability to self-advocate. The literature shows that while younger children may have difficulty
verbalizing their pain, older children will often try to hide their pain in order to appear normal.
This phenomenon demonstrated by older children is often closely associated with anxiety, a very
common comorbid diagnosis that can accompany chronic pain, and—it is hypothesized—caused
by chronic pain.94 Further complicating the issue is that anxiety is displayed in a myriad of
different responses between individuals, some physical and some behavioral, and all intertwined
with the pain issues. The problem of the observer clearly discerning the pain situation of another
92 See, e.g., Nicola L. Dennis, et al, A Giant Mess: Making Sense of Complexity in the Accounts of People with Fibromyalgia, 18 BRITISH J. OF HEALTH PSYCH. 763 (2013). 93 Deirdre E. Logan, Robyn Lewis Claar, & Lisa Scharff, Social Desirability Response Bias and Self-report of Psychological Distress in Pediatric Chronic Pain Patients, 136 J. PAIN 366 (2007) (study suggested that many school personnel, due to lack of training and education about the nature of chronic pain, hold a dualistic view of pain dictating that pain must be either physically or psychologically rooted in the individual, but that it cannot be both). 94 Id.
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 19
can become clouded and even more difficult to navigate as a result of frequent accompanying
anxiety.95
With the difficulties stated above, the possibility of adults in schools overlooking or
under-reacting to chronic pain when it is experienced by students in the K-12 setting is increased
and possibly commonplace. Simply put, how does one measure the “level” at which a § 504 is
required by law when the indicators are not clear by virtue of the difficulty of detecting
symptoms experienced versus those that are overtly demonstrated? Aside from compelling
academic and moral interests, schools must assess the legal implications of not acting (in the
form of identifying, recognizing and accommodating) when a student has a “physical or mental
impairment” that “substantially limits one or more major life activities.”96
B. IDEA ELIGIBILITY
IDEA eligibility—specifically under the OHI category—is more likely to be satisfied in
the case of a chronic pain disorder when: (a) The student has a medical professional providing
documentation as to the patient’s condition and related absences; and, (b) it has been established
that the LRE is not the school setting, but that of cyber-school or home-school.
Concerns regarding IDEA eligibility.
While understandable that professional medical documentation is considered important as
evidence of a student’s problem with chronic pain, there is another practical factor to consider:
Chronic pain is typically cyclical in nature. This means that for the student to visit the doctor for
every flare-up of symptoms may not be medically necessary—nor logical—especially when
symptoms can be treated successfully at home through rest or medication. Though the medical
professionals may be well aware of the chronic pain problem, they may decline to issue a note or
an excuse unless they have actually seen the patient within a short time span. The requirement
that each and every absence must be accounted for by a doctor’s note can place a significant
burden on the family in terms of finances, energy, and time.
Additionally, some chronic pain conditions take years to diagnose. Indeed, some
perplexing cases will never truly be diagnosed, but will fall into the “medically unexplained”
95 See e.g., Tim Vevoort, et al., Severity of Pediatric Pain in Relation to School-Related Functioning and Teacher Support: An Epidemiological Study Among School-aged Children and Adolescents, 155 J. PAIN 1118 (2014). 96 29 U.S.C. §705(20)(B); 42 U.S.C. §12102(1).
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 20
category.97 In theory, students without a diagnosis but who experience symptoms of chronic
pain would still be legally supported through both § 504 and the IDEA; however, it is unknown
whether the schools or the courts would respond the same way without a firm, or even tentative,
diagnosis. The fact that a diagnosis is not legally required in either § 504 or the IDEA is well
established; however, that factor does not appear to have been significantly tested at the court
level. Under the IDEA, the category of OHI states that the child suffers from “limited strength,
vitality, or alertness, including a heightened alertness to environmental stimuli, that results in
limited alertness with respect to the educational environment, that
(i) is due to chronic or acute health problems such as asthma, attention deficit disorder or
attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia,
lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette
syndrome; and
(ii) adversely affects a child’s educational performance.” 98
The second prong seems to be the area over which school administrators, and subsequently court
officials, disagree. In the pediatric pain literature, however, a plethora of illustrations are
documented as to how a child’s educational performance can be adversely affected by chronic
pain. Memory, for instance, is vulnerable to pain, and yet it is essential to learning and for
providing assessments of learning.99 Concentration and ability to focus are compromised due to
the effect of limited cognitive functioning, or “mental fog”.100 The ramifications of pain on
cognitive tasks—the work of a student that requires attention, memory, reasoning, and decision
making—could therefore be devastating if the pain were to prohibit the student from attending to
lectures, presentations, or work and activities related to particular content and related
97 See Bryan D Carter & Brooke M Threlkeld, Psychosocial Perspectives in the Treatment of Pediatric Chronic Pain, 10 J. Pediatric Rheumatology, 1 (2012). 98 34 C.F.R. § 300.8(c)(9). 99 See Bruce D Dick & Rebecca Pillai Riddell, Cognitive and School Functioning in Children and Adolescents in Chronic Pain: A Critical Review, 15 J. Pain Res. Mngt. 238 (2010). 100 Id.
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 21
assignments in school.101In addition to the factors already mentioned, other significant effects of
chronic pain seen in pediatric populations include the following:
• Sleep disturbances resulting in fatigue and poor overall functioning102
• Pain coping behaviors, including catastrophizing and self-isolation.103
• Anxiety104
• Depression105
• Reduced school functioning (problems in academics, attendance, self-confidence)106
Finally, a combination of these issues can result in something identified in the literature as the
“downward spiral” in which students with chronic pain fall into a repeating pattern that involves
three steps: (1) Missed school due to pain; (2) Returning to school and facing difficulties
catching up on missed assignments and understanding; (3) Leading to school avoidance resulting
from anxiety and feelings of helplessness.107
101 See Chris Eccleston & Geert Crombez, Pain Demands Attention: A Cognitive-Affective Model of the Interruptive Function of Pain, 125 PSYCH. BULLETIN 355 (1999). 102 See, e.g., Kristina Puzino & Jodi A. Mindell, Sleep Disturbances in Pediatric Chronic Pain Patients: The Role of Cognitions, 1 TRANSLATIONAL ISSUES IN PSYCH. SCIENCE 6 (2015). 103 See, e.g., Lynn S. Walker, et al., A Typology of Pain Coping Strategies in Pediatric Patients with Chronic Abdominal Pain, 137 J. PAIN 266 (2008). 104 See, e.g., Sushmita Kashikar-Zuck, et al., Anxiety, Mood, and Behavioral Disorders among Pediatric Patients with Juvenile Fibromyalgia Syndrome, 24 J. CLINICAL J. OF PAIN 620 (2008). 105 See, e.g. Sara King, et al., The Epidemiology of Chronic Pain in Children and Adolescents Revisited: A Systematic Review, J. PAIN 2729 (2011). 106 See Ayala Y. Gorodzinsky, et al., School Functioning and Chronic Pain: A Review of Methods and Measures, 36 J. OF PEDIATRIC PSYCH., 991 (2011) (“In short, school functioning includes any social, cognitive, or emotional aspect of behavior that occurs directly within the school setting or indirectly impacts behavior and mental processing in the school setting. Without thoroughly understanding all the ways in which pain impacts this critical domain of daily life, it is as though a large piece of the puzzle is missing, making it impossible to completely comprehend what it means for a child or teen to live with chronic pain,” id. at 992). 107 “The developmental and financial costs of school impairment are extensive; youth disabled in school by physical and emotional symptoms suffer immediate educational and social difficulties, use more healthcare, require costly special education services, and assume a higher
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 22
C. RECOMMENDATIONS FOR PRACTICE
Specifically to the legal requirements of § 504 and the IDEA, the most important issue
appears to be the ability for those in the school who work with the student to have the awareness
and resources to detect, identify and respond appropriately to students with chronic pain. School
administrators need to be aware of the signs of chronic pain, especially when one or more non-
specific symptoms are reported on a regular basis over a period of time, and particularly if
accompanied by high absenteeism. If a diagnosis has been made, then there is presumably a
known disorder and an effort should be made within the school to educate those who are
responsible to the student about the condition, including whether the symptoms present typically
in a cyclical nature. A meeting with the family should occur as early as possible to avoid the
“downward spiral” pattern. Issues that should be deliberately addressed include how absences
will be documented (e.g., must a note from the doctor be submitted for every absence?); whether
and how the school may reasonably accommodate the students when symptoms arise; what
might be expected in terms of future flare-ups or periods of remission of symptoms; and how to
best communicate between home and school. All teachers working with the student should be
made aware of the student’s needs or potential needs, such as, for example—a place made
available to the student to lie down, an elevator pass to avoid having to climb stairs, or an
anytime pass to use the restroom.
The degree to which the student’s educational performance is adversely affected can be
monitored while keeping the list of consequences of chronic pain in mind. One idea would be to
keep a checklist for the student that could help to red flag certain issues before they lead to a
downward spiral. For instance, if a student is diagnosed with a chronic pain disorder such as
juvenile fibromyalgia, juvenile rheumatoid arthritis, or Lyme disease, then a list of symptoms
may be created that are currently present along with those that may yet manifest so that those
persons who work with the student could recognize and help respond to them should they appear.
As already indicated, most symptoms for chronic pain are non-specific, so the lists will be
risk of long term maladjustment. Left unaddressed, school impairment can worsen, with extreme cases resulting in full time homebound instruction or school failure. Caught in this downward spiral adolescents may miss out on developmentally normative academic and social experiences central to healthy adjustment,” 136 J. PAIN 366, 407.
©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 23
similar from one to another, varying between items such as abdominal pain, lethargy and
headaches. On the other hand, allowing for specificity is also important. For example, if there are
headaches, what kind of headaches is the student reporting? Where is the pain centered?
Descriptors are helpful, especially for helping to confirm diagnoses and establishing patterns and
possible triggers. Eventually, this documentation may prove helpful in establishing the correct
LRE should there be an IEP involved.
Regarding the LRE, the spectrum of school venues should be considered. The traditional
school attendance platform functions well for those students who are high school-functioning.
The next possibility, allowing for more flexibility, would be a combination of tutoring and
abbreviated school attendance, with the possibly additional option of online or cyber-school
opportunities. Home-bound schooling or home-schooling, along with cyber-school, represent a
step further along the spectrum for those students who perform lower at school-functioning.
Finally, in some cases, there are those schooling arrangements for individuals who must be
hospitalized on a frequent basis.
The need for consistent and meaningful communication between the school and the
family is always primary, regardless of the venue or combination of venues. School
administrators must understand that following through with regard to students with chronic pain
is key to the student’s success and to the school’s record of diligence in complying with the legal
requirements of both § 504 and the IDEA.