52 IDELR 167

109 LRP 31672

Category

Special Education, OCR

Clovis (CA) Unified School District
Office for Civil Rights, Western Division, San Francisco (California)
09-08-1395
April 23, 2009

Related Index Numbers

325.009 Field Trips

405.030 Discrimination

Ruling

A California district discriminated against a sixth-grader with Type I diabetes, as well as

other students with disabilities, when it set special conditions for participation in
extracurricular activities.

Meaning

Students with disabilities must be afforded the same chance to participate in field trips
and other non-academic activities as their nondisabled peers. Thus, a district may not
condition a student's participation on her parents satisfying obligations that are not
imposed on all parents. Here, a district required parents of students with disabilities to
personally attend an off-campus outdoor program, pay a registration fee, or authorize
another parent to provide medical services as a condition of the student's participation.
By imposing those conditions, the district discriminated against the students, since the
parents of nondisabled children were not required to meet them.

Case Summary

A sixth-grade student with Type I diabetes wanted to attend the district's multi-day Sierra
Outdoor School program. District staff allegedly told the parents that they could provide
the student's medical services if one or both parents attended the program and paid their
own registration fee. The district subsequently had the parents sign a release form,
authorizing another parent to provide the student's medical services during the trip. Other
parents of students with disabilities reported similar treatment. A doctor complained that
school staff told him he needed to attend field trips in order for his child with diabetes to
receive medical services. The sixth-grader's parents filed an OCR complaint, alleging that
the district's actions discriminated against the student, and other similarly situated
students, in violation of Section 504. The Section 504 implementing regulation at 34 CFR
104.37 requires districts to provide non-academic and extracurricular activities in a
manner which affords students with disabilities an equal opportunity to participate. OCR
concluded that the district violated Section 504 by failing to provide a FAPE to a
significant number of students with disabilities, including the sixth-grader, who sought to
participate in extracurricular activities. OCR observed that the district made the provision
of medical services and support dependent upon whether the parents would agree to
unique conditions imposed solely on parents of students with disabilities. By conditioning
students' participation on the parents paying additional expenses, taking time to attend, or
permitting other parents to provide services, the district denied or limited the students'
equal participation in those activities. The district signed a resolution agreement to
achieve compliance, agreeing in part to reimburse parents who incurred unnecessary
expense as a condition to their children participating.

Judge / Administrative Officer

Arthur Zeidman, Regional Director

Full Text

Clovis Unified School District

I. Advisement of Rights of Disabled Students to Participate in Extracurricular Activities
II. Development and Dissemination of a Notice to Parents Who May Be Entitled to a
Refund for the Provision of Medical Support or Services to Their Children During
Extracurricular Activities and District-Sponsored Field Trips
III. Development of Section 504 Plans and Individualized Education Programs (IEP) That
Specifically Address the Needs of Students With Diabetes
IV. Training
A. Section 504 Training
B. Diabetes Management Training
V. Development of a Protocol for Ensuring Full Participation in Extracurricular Activities
by Diabetic Students
VI. Reporting Requirements

Dear Dr. Bradley:

The U.S. Department of Education (Department), Office for Civil Rights (OCR), has
completed its investigation of the above-referenced complaint filed against the Clovis
Unified School District (District). The complaint alleged that the District discriminated
against a named student (Student), and other similarly situated students, based on
disability, by failing to provide extracurricular services and activities to the Student and
other students with disabilities in such manner as is necessary to afford these students
with disabilities an equal opportunity for participation in such services and activities). 1

Specifically, the complaint alleged that the District failed to provide necessary medical
services or support for the Student at the District's Sierra Outdoor School (SOS), a multi-
day program, near Sonora, California and for other families with disabled children
attending extracurricular activities or field trips as part of their children's school
curriculum.

OCR enforces Section 504 of the Rehabilitation Act of 1973 and its implementing
regulation. Section 504 prohibits discrimination on the basis of disability in programs and
activities operated by recipients of Federal financial assistance. OCR also has jurisdiction
as a designated agency under Title II of the Americans with Disabilities Act of 1990 and
its implementing regulation over complaints alleging discrimination on the basis of
disability that are filed against certain public entities. The District receives Department
funds, is a public education system, and is, therefore, subject to the requirements of
Section 504 and Title II.

OCR investigated this complaint by reviewing documentation submitted by the

Complainant, by the District, and by other parents who have disabled children attending
school in the District. Additionally, OCR spoke with counsel representing the District and
some of the parents who submitted documentation.

Based upon the evidence, OCR concluded that the District was not in compliance with
Section 504, Title II, and their implementing regulations. However, on April 9, 2009, the
District, without admitting to any violation of law, agreed to adopt and implement a set of
actions which will remedy OCR's compliance determinations.

The facts gathered during the investigation, the applicable legal standards, and the
reasons for OCR is determination are summarized below.

The regulations implementing Section 504, at 34 C.F.R. 104.33, require public school
districts to provide a free appropriate public education (FAPE) to all students with
disabilities in their jurisdictions. A FAPE is defined as regular or special education and
related aids and services that are designed to meet the individual needs of students with
disabilities as adequately as the needs of non-disabled students are met, and that are
developed in accordance with the procedural requirements of 104.34-104.36 pertaining to
educational setting, evaluation and placement, and due process protections.
Implementation of an individualized education program (IEP) developed in accordance
with the Individuals with Disabilities Education Act (IDEA) is one means of meeting
these requirements. OCR interprets the Title II regulations, at 28 C.F.R. 35.103(a) and
35.130(b)(1)(ii) and (iii), to require school districts to provide a FAPE at least to the same
extent required under the Section 504 regulations.

The Section 504 regulations require a school district to provide non-academic and
extracurricular services and activities, including field trips and non-classroom activities,
in such a manner as is necessary to afford disabled students an equal opportunity for
participation in such services and activities. See 34 C.F.R. 104.37.

In the context of providing a FAPE under Section 504, the regulations, at 34 C.F.R.
104.3(j), define an individual with a disability as any person who has a physical or mental
impairment which substantially limits a major life activity. Under 34 C.F.R. 104.3(j)(2)
(ii), major life activities include learning. The definition of disability under the Title II
regulation, at 28 C.F.R. 35.104, is substantially the same. It is important to note that a
student may have a physical or mental disorder that qualifies the student as a disabled
individual requiring services under Section 504 and Title II even though the disorder does
not meet the eligibility criteria for services under the IDEA. The IDEA applies only to
students who have specifically identified conditions. Section 504 and Title II apply to any
student who has a physical or mental impairment that substantially limits a major life
activity.

OCR's investigation showed the following:

- The District has adopted policies and internal regulations designed to address the
identification of students with disabilities, the provision of a FAPE to such students, and
the ability of such students to participate in extracurricular and offÂcampus curriculum-
related activities. 2

- Individual Health and Support Plans ("IHSP") are created by the District for students
who have a chronic medical or health condition that necessitates unique school health
care and support (related aids and services) that must be provided during the school day
in order to ensure the student's physical well-being and safety. A student who receives
special education and/or related services pursuant to a Section 504 Plan or IEP may also
have an IHSP, which is kept in the student's confidential file at the student's school site.
However, pursuant to District policy, unless a student is a "qualified disabled person"
within the meaning of Section 504, or is otherwise eligible for special education or
related services pursuant to the IDEA or state special education law, a student with IHSP
is not required to have a Section 504 plan or an IEP.

- The Student was enrolled in the sixth grade during the 2007-2008 school year and has
been diagnosed with type I diabetes. At all pertinent times, the District was aware of the
Student's disability.

- At the end of March 2008, the Student was scheduled to attend the SOS program. Prior
to the Student's attendance, the Student's parents, through both written and verbal
communications, repeatedly expressed concern to District staff that the Student's medical
needs would not adequately be met while she attended the SOS program.

-The Student's parents stated to OCR that they were told by District staff that they could
provide the necessary medical support to the Student if one or both of them attended the
SOS program with the Student. Additionally, the parents' cost of attending the program,
along with its registration fee, would be borne by the parents. As detailed below, OCR
received consistent descriptions of events from similarlyÂsituated parents.

- On March 14, 2008, the parents signed a release form provided to them by the District.
The release permitted the parent of another student attending the SOS program at the
same time as the Student (a parent chaperone) to act as the District's medical personnel
for the Student at the SOS program. 3 The parent chaperone was also a registered nurse.
- At the time of her attendance at the SOS program, the Student did not have a Section
504 Plan; however, like all diabetic students in the District, she had in place an Individual
Health Support Plan ("IHSP").

- In a March 19, 2008 e-mail message, the parent chaperone stated to District personnel
her discomfort with acting as both a parent chaperone and a nurse at the March 2008 SOS
program. Specifically, she stated:

I have merely volunteered to attend the event as a parent chaperone. I also happen to be a
Registered Nurse. When I signed up to be a chaperone, I was not planning to be there in a
nurse capacity as I am not an employee of [the District].

- The parent chaperone additionally expressed her concern with the following: she was
not aware of school nursing policies and protocols; she was an adult care nurse
specializing in infusion nursing and had no specific training in diabetic care, especially in
children; no provisions had been made to address any liability issues that may arise; and,
she was concerned about placing her nursing license in jeopardy.

- The District's only response to the parent chaperone's concerns was to send her a copy
of a board resolution formally extending liability coverage to those who volunteer for the
District and informing her that it only expected her to be available to the Student in the
case of an emergency since there would be "other CPR and first aide trained staff who are
available as well." Some of the SOS program staff was so trained.

- Subsequent to the completion of the March 2008 SOS program, the parent chaperone
stated to the Student's parents that she was tense and nervous the entire week that she was
asked to look after the Student at the SOS program, that she felt ill-prepared when a
determination had to be made whether to provide the Student with additional insulin on a
hiking trip, that she felt put on the spot, and that she felt "very inadequate regarding [the
Student's] needs."

- In addition to the issues surrounding the Student's participation in the March 2008 SOS
program, OCR identified the following parental complaints regarding the provision of
necessary medical support or services to disabled students attending District
extracurricular activities or field trips:

- In March 2008, a parent of a student with moderate to severe asthma desired to attend
the SOS program with the student because she was told that there would not be any nurse
or nurse's assistant present at the program in the event that the student needed nursing or
medical care. The parent expressed her concern with the lack of any nursing care at the
program and informed a member of the student's school staff that she intended to attend
the program in order to provide any potential necessary medical care to the student. The
parent was informed by the staff member that she could attend the SOS program if she
paid the full registration fee that the student participants paid. Reluctantly, she paid.
- In January 2008, a parent with a medical degree attended the SOS program in order to
provide potential medical services to one of her asthmatic children. While at the program,
the parent noted that no medical personnel were present.

- In 2007, a parent of a student with type I diabetes paid the full registration fee of the
student's science camp in order to attend the camp and provide any necessary medical
services since no medically trained personnel from the District would be present at the
camp.

- In 2006 and 2007, a parent of a student with diabetes, who is also a licensed physician,
was told by the school nurse of the student's school that he needed to attend field trips
with the student so that there would be medical services available to the student. The
parent was required to pay a fee each year that he attended the student's camp.

- In 2005, a parent, who is a pediatric nurse, attended the SOS program as a parent
chaperone. During the time she was at the program, a female student had a severe
asthmatic attack during the night. Although she did not attend the program in order to
provide medical services to students at the program on behalf of the District, because no
medically trained personnel were present to address the student's medical condition, she
was required to stay with the student for the night until the student was sent home the
following morning.

- The District's IHSPs for students with diabetes, who are receiving services or
accommodations pursuant to a Section 504 plan or an IEP, currently do not include
information advising that those services or accommodations will be provided to the
students during field trips or other activities related to the program of instruction (i.e., the
SOS program).

Based on the above-stated information, OCR concluded that the District failed to provide
a FAPE to some of its disabled students when the students attended non-classroom
activities related to the regular program of instruction (e.g., field trips such as the SOS
program). The evidence established that in a significant number of cases, a student's
participation in such activities was conditioned upon whether his or her medical services
or support would be provided while attending the activity. Whether the medical services
or support would be provided was dependent upon whether the student's parent was
willing to undertake certain obligations that were additional to those of parents of non-
disabled students (e.g., payment of a registration or other fee to attend the activity,
required personal attendance at the activity, a willingness to permit another parent,
notwithstanding any reluctance or adequate training, to provide necessary support or
services; etc.).

The imposition of additional expenses, time commitments, and health risks as a condition
to District students with disabilities participating in the District's curriculum based field
trips and non-classroom activities, such as the SOS program, serves to unnecessarily
burden, deny, or limit the equal education and participation opportunities of students with
disabilities. The District cannot condition a disabled student's participation in such
activities upon the student's parents' willingness to accept an additional obligation or
burden that is not likewise imposed on the parent of a non-disabled student.

In order to address the noncompliance issue identified by OCR in this investigation, the
District has voluntarily agreed to the terms of the enclosed Resolution Agreement.
Pursuant to the agreement, the District has committed to developing a notice to send to all
parents and staff informing them of the District's obligations and the students' rights to
provision of a FAPE while participating in curriculum based extracurricular activities,
agreed to refine its protocols for ensuring that students with disabilities are afforded an
equal opportunity to participate in such activities, committed to appropriate training of its
staff, and agreed to reimburse those parents who have unnecessarily incurred expense in
the past as a condition to one or more of their disabled children participating in such
activities. OCR is satisfied that the District's full implementation of the Resolution
Agreement will bring the District into compliance with Section 504 and Title II with
respect to the issue identified in this matter.

Under the Freedom of Information Act, it may be necessary to release this document and
related records upon request. In the event that OCR receives such a request, it will seek to
protect, to the extent provided by law, personal information that if released, could
reasonably be expected to constitute an unwarranted invasion of privacy.

Thank you and counsel for the District for your cooperation and assistance in resolving
this matter. If you have any questions, please contact Alan Konig, Civil Rights Attorney,
at (415) 486-5527.
1
OCR earlier notified the District of the identities of the Student and the Complainant.
Their names are being withheld from this letter to protect their privacy.
2
These include: Board Policy & Administrative Regulation No. 2109 (Identification
Evaluation & Education of Students who Are Qualified Disabled Persons Within the
Meaning of Section 504 of the Rehabilitation Act of 1973); Board Policy No. 2401 (Use
of Medication); and, Board Policy & Administrative Regulation No. 3508 (Disabled
Children).
3
The District also provided a "care plan" for the Student while she was at the SOS
program. The first provision of the care plan required the Student's parents to train the
"parent volunteer" to "observe/assist [the Student] in self-care of her Diabetes Type I."

Clovis Unified School District

The Clovis Unified School District (District) agrees, without admitting to any violation of
law, to implement the following Resolution Agreement (Agreement) to resolve the issues
investigated by the U.S. Department of Education, Office for Civil Rights (OCR), under
Section 504 of the Rehabilitation Act of 1973 (Section 504) and Title II of the Americans
with Disabilities Act of 1990 (ADA) in the above-referenced OCR case number.
 I. Advisement of Rights of Disabled Students to Participate in Extracurricular
Activities

A. Within sixty (60) days of the District signing this Agreement, it will disseminate to
parents 1 and staff a statement of recommitment to providing a free appropriate public
education (FAPE), as well as practicing nondiscrimination in all of its programs and
activities, pursuant to Section 504 of the Rehabilitation Act (Section 504), to each
qualified disabled person within its jurisdiction, regardless of the nature or severity of the
individual's disability. The statement will advise that practicing nondiscrimination on the
basis of disability means that the District will provide accommodations and educational
and related services without cost to the disabled individual or to his or her parent(s),
except for those fees that are imposed on non-disabled individuals or their parent(s). The
statement will also advise that the District's responsibility to provide a FAPE and other
forms of nondiscrimination includes providing non-academic and extracurricular services
and activities in such manner as is necessary to afford disabled students an equal
opportunity for participation in such services and activities as non-disabled students.

The statement will provide examples of how the District ensures provision of a FAPE and
practices nondiscrimination for non-academic and extracurricular activities, such as: (i)
unless the same requirement is imposed on a parent of non-disabled students, the District
does not require the parent of a disabled student to attend such activities with his or her
disabled child or require the parent's attendance at such activities as a condition of the
child's attendance or participation; (ii) the parent of a disabled child may choose to attend
a non-academic or extracurricular activity with their child, at no cost to the parent, in
order to provide the child's medical support or services; while attending such activity, the
parent will not be required to incur any expense for the child's medical support or
services that he or she would not incur during the times that the child is attending class at
the child's school and the parent will not be required to act as a chaperone or provide
medical support or services to any other student; if the parent is not qualified to provide
all medical support or services to his or her child that are required by the child's Section
504 plan or individualized education program (IEP), then the District remains responsible
for providing the support and services for which the parent is unqualified; (iii) the District
does not condition a disabled child's parent's attendance at or participation in such
activities upon the payment of any fee or other expense by the parent that is not also
imposed on a parent of nondisabled student; and, (iv) the District will provide
appropriately trained school or District personnel or contractors, who are sufficiently
familiar with the student's medical condition and its treatment and care, to provide any
medical support or services that are necessary pursuant to Section 504 or Title II to a
disabled student while attending or participating in such activities and will not require
such of a parent, and in that event, any parent choosing to chaperone or attend a nonÂ-
academic or extracurricular activity shall be required to pay any fees that are imposed on
non-disabled in or their parent(s); however, the parent will not be required to provide
medical support or services to any student or individual attending the activity.

B. The District will attach to the statement a copy of its board policies and administrative
regulations that address the right of disabled students to participate in extracurricular
activities to the same extent as non-disabled students pursuant to Section 504 of the
Rehabilitation Act.

C. The statement will also inform parents and staff how to file a complaint if they believe
a violation of federal law or of the District's regulations and policies has occurred. A
sample complaint form will be included with the advisement.

In addition to disseminating the statement to parents and staff, the District will post the
statement at all District and school locations at which other District or school policies are
posted in order to inform faculty, staff, students, parents, or the general public of such
policies. The statement will remain posted at these locations for at least two years
following the signing of this Agreement.

II. Development and Dissemination of a Notice to Parents Who May Be Entitled to a

Refund for the Provision of Medical Support or Services to Their Children During
Extracurricular Activities and District-Sponsored Field Trips

Within sixty (60) days of the District signing this Agreement, the District, in consultation
and cooperation with OCR, will draft a notice to parents of disabled children, including
children with diabetes, that advises them that: (i) if, in the past two years, they have paid
any money to the District or one of its schools (or any member of its staff) that was
associated with the provision of medical support or services to their children during their
children's participation in or attendance at an extracurricular activity or District-
sponsored field trip; 2 (ii) they may be entitled to a refund of such money; and, (iii) the
District has established a process by which they may request and obtain a refund when
warranted.

The District will thereafter disseminate the notice to the parents and may do so either
with the statement required by Section I of this Agreement or by separate notice within
thirty (30) days of the date the notice is completed.

III. Development of Section 504 Plans and Individualized Education Programs

(IEP) That Specifically Address the Needs of Students With Diabetes

By June 30, 2009, the District will establish a protocol, or revise its existing protocols,
policies, or guidelines for the development of Section 504 Plans and individualized
education programs (IEPs) to ensure that school accommodations, diabetes care, and
other services set out in its Section 504 plans and IEPs for students with diabetes are
consistent with the requirements of federal law. The new or revised protocols, policies, or
guidelines, also will include a requirement that Individual Health Services Plans for
students with diabetes, who are receiving services or accommodations pursuant to a
Section 504 Plan or an IEP, will include information that those services or
accommodations will be provided to the student during field trips or extraÂcurricular
activities.

IV. Training
 A. Section 504 Training

By September 1, 2009, the District will provide training to its staff regarding Section 504
and the District's policies and regulations that address the right of disabled students to
participate in extracurricular activities and attend District-sponsored field trips and on the
permissible and impermissible actions that they may take when a disabled student
participates in an extracurricular activity or attends a District-sponsored field trip. The
training will be provided by staff most knowledgeable about the Section 504 rights of
disabled students and, in particular diabetic students, who participate in extracurricular
activities or by an outside third party with such expertise.

B. Diabetes Management Training

The District recognizes and acknowledges that effective diabetes management while in
school is important to its diabetic students and that effective diabetes management
requires that individuals who provide support to, or are involved with the evaluation and
placement of, students with diabetes receive training that provides a basic understanding
of the current standards of care for children and youth with diabetes (e.g., the disease, the
students' needs, how to identify medical emergencies, and whom to contact in case of an
emergency).

The District agrees that by September 1, 2009, it will provide training to its staff
members who have the responsibilities stated in the previous paragraph. At a minimum,
the training will be consistent with the standards and information stated in NDEP's
Helping the Student with Diabetes Succeed, A Guide for School Personnel.

V. Development of a Protocol for Ensuring Full Participation in Extracurricular

Activities by Diabetic Students

Within 120 days of signing this Agreement, the District will develop a protocol that will
be used by it to ensure that its schools are adhering to the requirements of Section 504
and this Agreement when a diabetic student desires to participate in an extracurricular
activity or attend a District-sponsored field trip.

VI. Reporting Requirements

A. Within thirty (30) days of it disseminating and posting the statement required by
Section of this Agreement, the District will provide to OCR a copy of the statement, an
affirmation that it has been disseminated to the required individuals, and a list of the
places at which it has been posted.

B. Within thirty (30) days of it disseminating the notice required by Section II of this
Agreement, the District will provide a statement to OCR that states the date the notice
was sent and the number of parents to whom it sent the notice. The District will maintain
the list of parents to whom it sent the notice for a period of two years but is not required
to provide the list to OCR unless specifically requested by OCR.
C. Within thirty (30) days of developing the protocol required by Section III of this
Agreement, the District will provide a copy of the protocol to OCR. If the protocol is not
stated in writing, the District will submit a written narrative statement to OCR that
describes the protocol that it developed.

D. Within thirty (30) days of completion of the training required by Section IV of this
Agreement, the District will inform OCR that the training has been completed.

E. The District will provide to OCR, within thirty (30) days of developing it, a copy of
the protocol required by section V of this Agreement.

F. Within thirty (30) days after the District has concluded its reimbursement of parents as
provided for in Section II of this Agreement, it will provide to OCR a complete list of
parents or guardians who requested a refund, the amount of the refund requested, the
District's ultimate disposition of the requested refund, and, in those cases in which the
full amount of refund was not provided, the District's reasoning and justification for not
providing the full amount of the requested refund.
1
Unless otherwise indicated, use of the term "parent" throughout this Agreement also
includes a guardian of a student.
2
The two-year limitation shall not apply to those parents with whom OCR communicated
during its investigation and resolution of case no. 09-08-1395 and those parents may
submit a request for a refund for money paid more than two years after the date of the
notice.

Regulations Cited

28 CFR 35.103(a) [Find other cases with 28 CFR 35.103(a)]

34 CFR 104.37 [Find other cases with 34 CFR 104.37]
34 CFR 104.3(j) [Find other cases with 34 CFR 104.3(j)]
34 CFR 104.3(j)(2)(ii) [Find other cases with 34 CFR 104.3(j)(2)(ii)]
28 CFR 35.104 [Find other cases with 28 CFR 35.104]
28 CFR 35.130(b)(1)(ii) [Find other cases with 28 CFR 35.130(b)(1)(ii)]
28 CFR 35.130(b)(1)(iii) [Find other cases with 28 CFR 35.130(b)(1)(iii)]