Pondering, mulling, reading and re-reading.
Need to put it all together somehow and thought this thread starter might be helpful.
Jumping off point:
I'm intending this thread to be FACT BASED. I'd really rather have a separate discussion as to personal opinion (not a published, attributable legal opinion via law or court case or DOE/OCR official statement) as to these defintions IN ANOTHER THREAD. (Happy to start one and will link it into here if need be.)
Does OCR and/or DOE define "necessary" for the purposes of 504 in educational institution setting?
Does OCR and/or DOE define "appropriate" for the purposes of 504 in edcuational institution setting?
If yes, let's get that in here verbatim and cite source.
Also, if there are court cases as precedence on these 2 words WRT 504 . . .
I'll try to be in here to likely edit-in some related OCR verbiage and terminology (with the links) into this opening post.
Let's FIRST get into this thread any/all definition and refinement of THOSE words so far as the LEGAL ESTABLISHMENT and federal governing authorities of our nation.
Now, have something you might add to contribute in this thread?
Please understand, I'm not trying to limit discussion -- simply to split it up into 2 threads and designate it -- FACT vs OPINION/discussion. Hopefully that explains where I'd like to see us go on this topic.
PLEASE HELP.
Also -- official directives from FEDERAL entities as to these words and official policies and procedures, if any, as published.
DOE
OCR
USDA
Federal courts
Supreme Court
PLEASE cite sources as completely as possible AND a link if you have one.
From what I read, they don't define "necessary". However, they do state that for a disabled student to receive FAPE, they "must be educated along with nondisabled students to the maximum extent appropriate to the child's disability. This means that students with disabilities must be assigned to regular courses or classes if the students' needs can be met there. Also, decisions on academic placement must be based on an individual student's needs."
I guess the burden of proof falls on any one of us. I don't like how it's so vague and can be interpreted in any way.
http://www2.ed.gov/about/offices/list/ocr/docs/placpub.html (http://www2.ed.gov/about/offices/list/ocr/docs/placpub.html) (see "Education Setting")
DOE defines "appropriate" in "FAPE" http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html (http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html)
"How Is an Appropriate Education Defined?
An appropriate education may comprise education in regular classes, education in regular classes with the use of related aids and services, or special education and related services in separate classrooms for all or portions of the school day. Special education may include specially designed instruction in classrooms, at home, or in private or public institutions, and may be accompanied by related services such as speech therapy, occupational and physical therapy, psychological counseling, and medical diagnostic services necessary to the child's education.
An appropriate education will include:
education services designed to meet the individual education needs of students with disabilities as adequately as the needs of nondisabled students are met;
the education of each student with a disability with nondisabled students, to the maximum extent appropriate to the needs of the student with a disability;
evaluation and placement procedures established to guard against misclassification or inappropriate placement of students, and a periodic reevaluation of students who have been provided special education or related services; and
establishment of due process procedures that enable parents and guardians to:
receive required notices;
review their child's records; and
challenge identification, evaluation and placement decisions.
Due process procedures must also provide for an impartial hearing with the opportunity for participation by parents and representation by counsel, and a review procedure."
In same link, loving this line (see bold and underline):
"Students With Disabilities Must Be Educated With Nondisabled Students
Students with disabilities and students without disabilities must be placed in the same setting, to the maximum extent appropriate to the education needs of the students with disabilities. A recipient of ED funds must place a person with a disability in the regular education environment, unless it is demonstrated by the recipient that the student's needs cannot be met satisfactorily with the use of supplementary aids and services. Students with disabilities must participate with nondisabled students in both academic and nonacademic services, including meals, recess, and physical education, to the maximum extent appropriate to their individual needs.
As necessary, specific related aids and services must be provided for students with disabilities to ensure an appropriate education setting. Supplementary aids may include interpreters for students who are deaf, readers for students who are blind, and door-to-door transportation for students with mobility impairments.
A recipient of ED funds that places an individual with disabilities in another school is responsible for taking into account the proximity of the other school to the student's home. If a recipient operates a facility for persons with disabilities, the facility and associated activities must be comparable to other facilities, services, and activities of the recipient."
Just adding in here:
"Medical necessity" may be defined as follows:
treatment, test, or procedure required for health or to treat a diagnosed medical problem.
(This is often seen as an insurance defintion, but may cross boundaries.)
Physicians and insurance can and do have divergent opinions as to "medical necessity".
Possibly important to consider: "Services or supplies that are needed for the diagnosis or treatment of your medical condition and meet accepted standards of medical practice."
When looking at "appropriate" possibly consider
"Medically appropriate" as might be the case as follows:
http://www.bcbst.com/mpmanual/Medically_Appropriate.htm (http://www.bcbst.com/mpmanual/Medically_Appropriate.htm)
Quote
Medically Appropriate
Services which have been determined by BlueCross BlueShield of Tennessee to be of value in the care of a specific Member. To be Medically Appropriate a service must:
Be Medically Necessary.
Be used to diagnose or treat a member's condition caused by disease, injury or congenital malformation.
Be consistent with current standards of good medical practice for the Member's medical condition.
Be provided in the most appropriate site and at the most appropriate level of service of the member's medical condition.
On an ongoing basis have a reasonable probability of:
Correcting a significant congenital malformation or disfigurement caused by disease or injury.
Preventing significant malformation or disease.
Substantially improving a life sustaining bodily function impaired by disease or injury.
Not be provided solely to improve a Member's condition beyond normal variation in individual development and aging including:
Comfort measures in the absence of disease or injury.
Improving physical appearance that is with in normal individual variation.
Not be for the sole convenience of the Provider Member or Member's family.
This document has been classified as public information.
Now, "medically appropriate" for the purposes of LTFA would include all the components that apply to one or ALL of PHYSICAL and EMOTIONAL safety and inclusion.
Physical safety
Physical inclusion
Emotional safety
Emotional inclusion
Make sense?
Just sticking this related link here -- haven't had time to read all the way through -- wanted to pull a quote:
http://www.osd.ucla.edu/docs/Guidelines/uc1460.htm (http://www.osd.ucla.edu/docs/Guidelines/uc1460.htm)
ETA:
Using some verbiage from that link & tying together with antithesis of "appropriate" = inappropriate:
Provide benefits or services that limit or have the effect of limiting participation of qualified individuals with disabilities;
Provide a qualified individual with a disability with benefits or services that are not as effective as those provided to others
(my underline added for emphasis)
"that are not as effective" then leads to "disparate impact"
Terminology (from a USDA slide show for an Oregon foodbank link =
http://www.slideserve.com/presentation/71112/USDA-Civil-Rights-Training (http://www.slideserve.com/presentation/71112/USDA-Civil-Rights-Training) )
Differential treatment
Disparate treatment
Disparate impact or discriminatory impact = discrimination that is not intentional but has that effect; rule, policy, or practice that may be neutral on its surfacebut impacts a protected class disproportionately
Reprisal/Retaliation = negative treatment of someone because he/she filed a complaint or complained about discrimination; retaliation could involve denial of service, harassment, intimidation, etc.; retaliatory behavior can result in finding of discriminatory retaliation even if the original complaint filed by the individual is baseless.
Important issues to work through:
The school wants to equate necessary and appropriate with stuff that is *only* convenient for them.
The school expects that they -- and ONLY they -- can possibly "know" what is "necessary and appropriate".
. . .
More to come . . . only the beginning of thoughts tonight.
Elie Goldberg:
Quote
"In order to receive federal funding, the school assures the federal government that it does not operate in a way that privileges some groups and disenfranchises or discriminates against individuals or other groups," Goldberg said. "Section 504 gives parents the right to notify the school when it is doing something that is creating a barrier to a child's access to education. You can ask the school to do something it isn't doing, or to stop something that it is doing. Section 504 gives you the right to go up the chain of command if the school resists or refuses to cooperate. The U.S. Department of Education Office for Civil Rights is the agency with responsibility for Section 504 complaints."
Quote from: ajasfolks2 on November 09, 2011, 05:29:19 PM
Important issues to work through:
The school wants to equate necessary and appropriate with stuff that is *only* convenient for them.
The school expects that they -- and ONLY they -- can possibly "know" what is "necessary and appropriate".
. . .
More to come . . . only the beginning of thoughts tonight.
The school may believe that they *only* have to apply what's necessary & appropriate according to their standards BUT the language of the law states it has to be to the "
maximum extent appropriate and necessary to the student's disability". That means they not only have to do what's necessary at the very least but to the maximum extent as well.
They conveniently leave this out (or to their defense, really don't know about it). This is why it's up to us parents to really educate ourselves so that we may educate the schools. :yes:
I just needed to see this in larger-than-life headline format today.
I've really had all I'm going to stomach, TYVM!
"maximum extent appropriate and necessary to the student's disability".
http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html (http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html)
Quote
How Is an Appropriate Education Defined?
An appropriate education will include:
<2nd bullet>
•the education of each student with a disability with nondisabled students, to the maximum extent appropriate to the needs of the student with a disability;
The problem is that the school wants to be the sole source of definition for the word "appropriate" -- and it always is predetermined by all of the school-side members at the meeting . . . so there is a no-win situation unless the parents bring massive numbers of people to the meeting so to OUTNUMBER the school staff.
There is a word for this, possibly:
collusion.http://en.wikipedia.org/wiki/Collusion (http://en.wikipedia.org/wiki/Collusion)
Collusion is an agreement between two or more persons, sometimes illegal and therefore secretive, to limit open competition by deceiving, misleading, or defrauding others of their legal rights, or to obtain an objective forbidden by law typically by defrauding or gaining an unfair advantage.[citation needed] It is an agreement among firms to divide the market, set prices, or limit production.[1] It can involve "wage fixing, kickbacks, or misrepresenting the independence of the relationship between the colluding parties".[2] In legal terms, all acts affected by collusion are considered void.[3]
Interesting verbiage fromt the Washington state LTFA policy (my bold added):
Quote
Developing Individual and Emergency Care Plans –The Team Approach
The parents and student are the experts on the student's allergy. To ensure a safe
learning environment for the student with a life-threatening allergy, the parents and the
student should plan to meet with the school nurse, school officials, school nutrition
services, and other school staff as necessary to develop the IHP and/or ECP. This
meeting needs to occur prior to the student attending school, upon returning to school
after an absence related to the diagnosis, and any time there are changes in the
student's treatment plan.
Link:
http://www.foodallergy.org/files/Wash_State_Anaphylaxis_Guidelines.pdf (http://www.foodallergy.org/files/Wash_State_Anaphylaxis_Guidelines.pdf)
.pdf page 17 (not matching the page numbers at bottom of actual document)
Quote from: ajasfolks2 on November 12, 2011, 11:02:21 AM
http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html (http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html)
Quote
How Is an Appropriate Education Defined?
An appropriate education will include:
<2nd bullet>
•the education of each student with a disability with nondisabled students, to the maximum extent appropriate to the needs of the student with a disability;
The problem is that the school wants to be the sole source of definition for the word "appropriate" -- and it always is predetermined by all of the school-side members at the meeting . . . so there is a no-win situation unless the parents bring massive numbers of people to the meeting so to OUTNUMBER the school staff.
There is a word for this, possibly:
collusion.
http://en.wikipedia.org/wiki/Collusion (http://en.wikipedia.org/wiki/Collusion)
Collusion is an agreement between two or more persons, sometimes illegal and therefore secretive, to limit open competition by deceiving, misleading, or defrauding others of their legal rights, or to obtain an objective forbidden by law typically by defrauding or gaining an unfair advantage.[citation needed] It is an agreement among firms to divide the market, set prices, or limit production.[1] It can involve "wage fixing, kickbacks, or misrepresenting the independence of the relationship between the colluding parties".[2] In legal terms, all acts affected by collusion are considered void.[3]
That's where you have to play devil's advocate and reply with, "does removing the student from school on certain days they want to use food, help w/student's ability to access education?" "Does taking him/her out of the classroom provide inclusion?" "Does having the allergen in the class offer an environment conducive to learning/climate for success or would it make for a mentally stressful situation for the student" if not then it is not appropriate.
Remember, appropriate education is defined as:
An appropriate education will include:
education services designed to meet the individual education needs of students with disabilities as adequately as the needs of nondisabled students are met;
the education of each student with a disability with nondisabled students, to the maximum extent appropriate to the needs of the student with a disability;
evaluation and placement procedures established to guard against misclassification or inappropriate placement of students, and a periodic reevaluation of students who have been provided special education or related services; and
establishment of due process procedures that enable parents and guardians to:
receive required notices;
review their child's records; and
challenge identification, evaluation and placement decisions.
http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html (http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html)
Liked this, thanks:
Quote
That's where you have to play devil's advocate and reply with, "does removing the student from school on certain days they want to use food, help w/student's ability to access education?" "Does taking him/her out of the classroom provide inclusion?" "Does having the allergen in the class offer an environment conducive to learning/climate for success or would it make for a mentally stressful situation for the student" if not then it is not appropriate.
Remember, appropriate education is defined as:
An appropriate education will include:
education services designed to meet the individual education needs of students with disabilities as adequately as the needs of nondisabled students are met;
the education of each student with a disability with nondisabled students, to the maximum extent appropriate to the needs of the student with a disability;
evaluation and placement procedures established to guard against misclassification or inappropriate placement of students, and a periodic reevaluation of students who have been provided special education or related services; and
establishment of due process procedures that enable parents and guardians to:
receive required notices;
review their child's records; and
challenge identification, evaluation and placement decisions.
http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html (http://www2.ed.gov/about/offices/list/ocr/docs/edlite-FAPE504.html)
Bumping this -- want to keep going if anyone has something to add or ask . . .
The reflexive answer from schools tends to be about supposed fairness to other kids. Note I am not endorsing that merely posing that all too common response. Any persons have a solid, to-the-point response they like to use in this situation? My brain is stuck in first gear. Possibly neutral or reverse.
Related -- DUTY OF CARE
Special thanks to somebody -- :smooch:
http://www.citizensinformation.ie/en/education/primary_and_post_primary_education/teachers_and_schools/teachers_duty_of_care.html (http://www.citizensinformation.ie/en/education/primary_and_post_primary_education/teachers_and_schools/teachers_duty_of_care.html)
More and more it seems that schools / districts are DEMANDING that the physician's letter plainly state,
"These accommodations for [child's name] are necessary and appropriate for the safe inclusion of [child's name] in school activities"
I might suggest adding/modifying as follows:
"At a minimum, these accommodations for [child's name] follow best practices and are necessary and appropriate for the safe inclusion -- physical as well as emotional safety -- of [child's name] in ALL school activities."
Thoughts, suggestions, experiences to share?
That wording is good. i can't see an Allergist objecting to writing that...and it puts it in schools own language.
You said schools are requiring this - did schools that you know of suggest this actual wording, or is this your inference?
Quote from: ajasfolks2 on October 26, 2011, 03:52:22 AM
Terminology (from a USDA slide show for an Oregon foodbank link =
http://www.slideserve.com/presentation/71112/USDA-Civil-Rights-Training (http://www.slideserve.com/presentation/71112/USDA-Civil-Rights-Training) )
Differential treatment
Disparate treatment
Disparate impact or discriminatory impact = discrimination that is not intentional but has that effect; rule, policy, or practice that may be neutral on its surfacebut impacts a protected class disproportionately
Reprisal/Retaliation = negative treatment of someone because he/she filed a complaint or complained about discrimination; retaliation could involve denial of service, harassment, intimidation, etc.; retaliatory behavior can result in finding of discriminatory retaliation even if the original complaint filed by the individual is baseless.
This is something that is federal agency speak. Seriously-- when I spoke with DOJ regarding our <ahem> swimming situation, I was
strongly encouraged to file with DOJ because it was a clear instance of a failure to change "practices, policies, and procedures" which were discriminatory-- and that while it was not inherently illegal to maintain such PPP as an organization, the
refusal to alter them in the face of a clear case of exclusion of a QID was (and presumably, "is").Make sense?
Now,
yes, the burden of proof still rests with the individual to demonstrate that the PPP are inadequate to permit inclusion. But don't worry there, since most of these organizations are MORE than willing to give a person an endless number of examples of both exclusion and even of undue burden from which to draw...
"sit in the special seat."
"just don't participate in..."
"have you sit this part out..."
"go down to the ________ office instead..."
"have your mom or dad provide you with...."
"wipe down your own equipment..."
"provide your own equipment..."
And believe me, if DOJ has a problem with this in the context of ADA, you'd better BELIEVE that it's a problem in the context of 504, which is far more stringent (no "reasonable" provision).
"provide your own equipment" in the context of LTFA equates to the requirement that the student/parent "provide your own food" (for any event that is school sponsored and/or school sanctioned) where the school or other entity is providing the food for everybody else . . .
rainbow --
yes, getting this type of "exact wording" requirement from some schools/districts and ONLY will take it from the physician before they will even consider that accommodation . . . of course, this seems often to apply ONLY to the accommodations that the school doesn't want to mess with or grant.
One more hoop and such bs.
This is being requested by schools/districts even in the face of strong allergist's letter that includes statement, "I consider [child's parents] to be experts in managing this condition."
In some instances, this is a square filler for them -- they want it in writing from attending physician as part of their documentation . . . but in many other instances it is more stalling tactic in order to deny accommodations so that they don't have to grant them. They want to wear out the parents and get parents to capitulate.
Plus, of course, each time parents have to go back to the doctor it costs the family more money $ and precious time.