Your Child's Asthma and Your School (page 2)
Under the Individuals with Disabilities Education Act (IDEA) of 1997, schools are required to promote the health, development, and achievement of students with asthma. Asthma is classed as a disability under the “Health Impaired” category of IDEA, if it adversely affects a child’s educational performance or interferes with learning.
Schools are also required to remove “disability barriers” under Section 504 of the Rehabilitation Act (“504”). This law prohibits discrimination against those with disabilities in education or employment. While having asthma is not considered a disability in itself, school conditions (such as poor IAQ) may be considered “disability barriers” which bar equal access for those with asthma. Schools are obliged to inform parents and students whom to contact if they perceive discriminatory situations, conditions, practices or policies within the school. Further, “504” requires schools to follow certain procedures to protect the rights of parents, students, and school staff, and to ensure that decisions made regarding a child’s needs, and their implementation, are fair and appropriate. It stipulates that schools and parents should act as partners in the planning and decision making involved in the child’s welfare.
Both IDEA and “504” outline student evaluation procedures and stipulate the creation of individual health plans—an Individualized Education Plan (IEP) and a “504” accommodation plan, respectively. In addition to a student’s asthma-related information, these plans include environmental modifications, physical education planning, and provision for studies during asthma-related absences from school. “504” ensures access to federally funded services for any handicapped person; IDEA provides funds to help schools serve these students when specific requirements are followed (IDEA grants.)
Maurice Watson, an attorney with Blackwell Sanders Peper Martin of Kansas City, MO, and a specialist in education law, notes that in disability cases the courts increasingly look at the severity of the impairment. Thus, if the asthma can be reasonably managed by medication, he continues, that individual might no longer have protection under IDEA and other federal statutes. “The court might say there is no “need” for further accommodation. On the other hand, parents might respond that if there was higher compliance with IAQ, the child could use less medication.”
A school’s best protection against liability is having policies and procedures in place and being proactive. In the event of a lawsuit against the school district, it is important to be able to demonstrate that a school maintained its duty of care to students and staff by responding to complaints, dealing with problems (establishing or disproving causation between, for example, poor IAQ and health complaints), and foreseeing potential problems.
Know the Law
In 1996, a court found the school's principal, guidance counselor, and the Orleans Parish school board negligent in the death of an 18-year old New Orleans schoolgirl, according to a report in the May 29, 1996, issue of Education Week. Catrina Lewis died when a call to 911 was delayed because of efforts by the school counselor to contact her mother, as directed by the principal. Lewis alerted a school security guard when her inhaler was ineffectual in controlling her asthma attack. The guard immediately contacted the school principal who said that the girl’s mother had to be called (in his testimony he said he did not mean for her to be called first, but to be contacted about the situation.) The school counselor tried unsuccessfully to reach Lewis’ mother, and after 34 minutes it was the girl’s younger sister who eventually called 911.
The judge found that the principal and counselor violated a state law stating that school officials have a duty to provide emergency medical care when a student requests it, and found the school board negligent in both failing to provide adequate training for its employees, and in failing to have a clear policy on medical emergencies. The judge ordered the insurance companies for the two school officials to pay $1.4 million in damages to Ms. Lewis' mother and two sisters, and the school board to pay $200,000.
In 2002, a California jury unanimously awarded $9 million in damages (later reduced to $2.225 million on appeal) to a mother after the death of her 11-year old son from an asthma attack at school. The school district was found guilty of negligence for failing to warn parents of an unwritten school policy that would have allowed the boy to carry an inhaler with him. Due to a written school policy stating that all medications must be stored in a specific place at the school, Phillip Gonzalez and his mother understood that he was not permitted to carry his inhaler. The school district contended that the regulation did not preclude a student from carrying necessary medication if certified necessary by a physician. However, in her testimony, Phillip’s mother pointed out that the physician’s authorization form supplied by the school does not have a space for a doctor to indicate that the student should carry and/or administer his or her own medication. The court ruled that the district was liable for negligence due to the fact that the policy requiring medications to be stored at school was written but the exception was not (Health and Health Care, 2002.) Twenty-one states currently have statewide policies or laws giving students the right to carry and use asthma inhalers at school.
Attorney Maurice Watson points out that in terms of air quality issues, schools are not covered by Occupational Safety Health Administration (OSHA) standards, and it is uncertain what the legal obligations might be in the future.
Mold in schools is emerging as a big problem for school districts. Many schools across the country have been closed for days, weeks and in some cases permanently, due to mold. And dozens of lawsuits have been filed already by teachers. The whole school district pays in such cases: students often have to be accommodated on other campuses, repairs are expensive and public (especially if the school is closed down), and someone may have to foot the illness compensation bill.
Reprinted with the permission of the American Association of School Administrators. © AASA
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