OCR Columbia #93 School District

[daisy madness]

Resolution Agreement


http://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/07141091-b.pdf

And yikes, this contains an email from the mother which makes her look very, very bad.  I've just glanced over the entire PDF, but it doesn't seem like the quoted email is even relevant to the complaint.  Why did OCR include it?  Pg 6. 

http://www2.ed.gov/about/offices/list/ocr/docs/investigations/more/07141091-a.pdf

[MomTo3]

Wow!  So from what it seems this looks to be more retaliation to the school under the "food allergy" issue when it really had nothing to do with it. And her letter?  Wow!

[guess]

By far the mention of considering an IHP as a mitigating measure to determine if 504 designation is necessary by OCR is the alarming issue.

By January 15, 2015, the District will develop and submit to OCR for its review and approval a referral protocol for procedure (referral procedure) to determine whether the District has reason to suspect a student with a condition mitigated by an individual health plan or other measures should be evaluated to determine eligibility for special education or related services pursuant to 34 C.F.R. 104.35.

[guess]

Because someone representing OCR needs a refresher here's ed.gov's 504 FAQ on the district's ability to consider mitigating measures.

21. May school districts consider "mitigating measures" used by a student in determining whether the student has a disability under Section 504?

No.  As of January 1, 2009, school districts, in determining whether a student has a physical or mental impairment that substantially limits that student in a major life activity, must not consider the ameliorating effects of any mitigating measures that student is using.  This is a change from prior law.  Before January 1, 2009, school districts had to consider a student's use of mitigating measures in determining whether that student had a physical or mental impairment that substantially limited that student in a major life activity.  In the Amendments Act (see FAQ 1), however, Congress specified that the ameliorative effects of mitigating measures must not be considered in determining if a person is an individual with a disability.

Congress did not define the term "mitigating measures" but rather provided a non-exhaustive list of "mitigating measures."  The mitigating measures are as follows: medication; medical supplies, equipment or appliances; low-vision devices (which do not include ordinary eyeglasses or contact lenses); prosthetics (including limbs and devices); hearing aids and cochlear implants or other implantable hearing devices; mobility devices; oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; and learned behavioral or adaptive neurological modifications.

Congress created one exception to the mitigating measures analysis.  The ameliorative effects of the mitigating measures of ordinary eyeglasses or contact lenses shall be considered in determining if an impairment substantially limits a major life activity.  "Ordinary eyeglasses or contact lenses" are lenses that are intended to fully correct visual acuity or eliminate refractive error, whereas "low-vision devices" (listed above) are devices that magnify, enhance, or otherwise augment a visual image.

http://www2.ed.gov/about/offices/list/ocr/504faq.html

[guess]

It could be a badly wriTten paragraph but to me mitigating and IHP shouldn't be in there.  Eligibility determination is based on substantial limitation of a major life activity regardless of IHP or mitigating measures.

[Macabre]

Exactly.  That was the first thing that grabbed me. 

The second was that it was a good decision to not consider job offers from Missouri. Out of several members from that state, only one has had a decent experience with school and FAs. I can think of three others who didn't and who couldn't get any help from OCR (they got the opposite from OCR in MO). 

The third was that email was just too dam hard to read.  I couldn't finish it.  Ouch.  Ouch. 

[Macabre]

I'll say this:  many of us have seen school districts (or at least one) that were not truthful with OCR.  They twisted facts and even created them in order to prevail.  That's certainly possible. 

I have also personally experienced my child singled out for misbehavior because of his 504. During hte first year of our 504 and DS' last year in elem, I came to expect/dread calls from the principal about things that DS did that were wrong--that I'm pretty sure other children were not getting in trouble for.  When he first started riding the bus, he was made to sit in the front with the aide who wiped down his seat.  The other children sat in the back.  If talked to them (even without fully turning around), he got into trouble, but they were all allowed to talk with each other. 

DS stopped getting into trouble for that in particular when I pointed out to the principal that he was being denied the same opportunities for socialization that his nondisabled peers had.

But it took addressing stuff like that repeatedly to get through to them that they were singling out DS. 

So I can see that it can happen. 

[Macabre]

I will add that my child is no angel, but frankly he's never been a child who had discipline problems.  He is so rules-oriented, so very first/only child that way--and even the principal experienced this when DS did something that was clearly wrong*.  It was very clear to me that they were treating him  unequally. 


*He brought a laser pointer to school that he had purchased with his own money from the Spy Museum in DC (I was in a conference--DH allowed this, but I would not have).  WE had told him never to point it at a person's face.  He did.  The school defined it as a weapon.   DS was sent to the principal's office, and when the principal called me and asked me what to do with the pointer, I told him to throw it in his trash can while DS watched.    He then called me back later asking me to come get DS. He said he'd never seen a child this upset at getting in trouble--he wouldn't stop crying (he was crying because he was in trouble--not over the pointer--I never heard DS mention it again).  But wow--this kid didn't do stuff like this and when he did, wowza, he was upset. 

All of that is to say that yes, the principal did call him on something legitimate, but there were many things that were not and that it seemed to me the school was singling him out because of his 504. 


I could see how this Missouri family could have experienced that--but not the way this OCR letter recounts things.  The descriptions here point to a child who very often acts out and is the instigator rather than the victim of bullies. 

Of course, I don't think especially much of that OCR and haven't for years. 

[ajasfolks2]

Putting aside the mother's email and all the bullying/behavior stuff . . .

wanting to just focus on the "mitigating" circumstance of IHCP / health care plan statement from OCR.

By far the mention of considering an IHP as a mitigating measure to determine if 504 designation is necessary by OCR is the alarming issue.

By January 15, 2015, the District will develop and submit to OCR for its review and approval a referral protocol for procedure (referral procedure) to determine whether the District has reason to suspect a student with a condition mitigated by an individual health plan or other measures should be evaluated to determine eligibility for special education or related services pursuant to 34 C.F.R. 104.35.

What recourse does a person have when the regional OCR gets it so wrong as they did in this one part of the resolution?  Make formal complaint to the Nat'l OCR office? 


Or does this need request for clarification to the reg OCR? Maybe this is just poorly worded as was mentioned earlier.

[ajasfolks2]

I *think* that OCR is trying to say that there MUST be a procedure (written) that should be followed such that a referral for eligibility determination for 504 or IEP is REQUIRED if there is a condition that exists where an IHP was needed?

But it sure is confusing due to their wording.

[ajasfolks2]

Kind of ala Virginia Beach??