Defining a disability: Office of Civil Rights makes finding in SDUHSD case

Encinitas parent Sabrina Erwin saw the end of a two-year process this spring when the U.S. Department of Education’s Office of Civil Rights made a finding in favor of her complaint that the San Dieguito Union High School District improperly exited her daughter from a Section 504 plan to accommodate her challenges with Attention-deficit/hyperactivity disorder (ADHD).

“This is a big win,” Erwin said, one she hopes leads to positive changes in the way San Dieguito and all school districts handle identifying and serving Section 504 students.

“I witnessed it happen to my child and I didn’t want it to be repeated. It would be difficult for any child or parent to experience. I felt it was incumbent on me to do something about it,” Erwin said. “I want other districts to be on notice that children with disabilities cannot be ignored. I want Yasi’s life-altering experience to mean something. I want my daughter’s suffering to make an impact on other students so that her sacrifices in seventh, eighth and ninth grade meant something and affected change.”

Section 504 of the federal Rehabilitation Act of 1973 requires that all qualified students with disabilities receive a free appropriate public education (FAPE) designed to meet their unique needs. To be eligible for a 504 plan, a student has to have a physical or mental impairment that must rise to the level of disability, having a substantial impact on one or more major life activities.

Any dispute as to the identification, evaluation, or placement of any student with a disability may be resolved with a request to initiate an impartial due process hearing.

“Many parents don’t exercise their rights because very simply, they don’t know how,” said Maureen Dempsey, director of North County Educational Advocates who represented Erwin and families in over 20 school districts throughout San Diego and greater Southern California.

Erwin, an attorney, felt it was too important not to take action.

“When I saw how egregious this systemic problem was, I realized that this was not just about my daughter, but was about the poor treatment of children with disabilities,” Erwin said. “I told my daughter to be patient during this legally intensive and emotionally difficult time in her life. I told her that her suffering would help those who were unwilling or unable to stand up for themselves.”

The Office of Civil Rights (OCR) concluded May 4 that San Dieguito Union High School District (SDUHSD) was not in compliance as it did not evaluate the student using the correct definition of a disability. To address this, the district signed a resolution agreeing to revise its form to correct the non-compliant definition. The resolution was signed by the then-director of school and student services, who has since retired.

SDUHSD Assistant Superintendent of Administrative Services Mark Miller said for the last three years, the district has been in the process of looking at Section 504 and updating the policies and procedures to reflect new language in case law— some of this work proceeded his time at the district as he was hired in June 2016.

By the time the district received the OCR finding in May this year, many of the changes had been implemented already, he said. Since 2016, the district established new policies and procedures, new parents’ rights forms, a new uniform policy for appeals and updated all forms and language in terms of evaluations of how a student qualifies under 504. All-staff training was conducted in the fall of 2016, 2017 and again this year.

Miller said he could not comment on the specific case but said the district has been actively updating forms, policies and procedures to meet all requirements under Section 504.

“I’m very confident that what OCR has mandated the district do, we already have done prior to receiving the letter from OCR,” Miller said. “We want to make sure it’s a user-friendly process for the community and that all of our staff on all of our sites are trained.”

“We want students who qualify for 504 to benefit. We’re here to serve students.”

A parent’s lengthy challenge for one student’s rights

Erwin’s case centered on her daughter Yasi and the district’s “brazen and unapologetic” behavior regarding identifying her disability and accommodating her rights to a free appropriate public education.

“We went through torture,” Erwin said of the process she experienced. “She is a confident kid and it broke her.”

Yasi was initially identified as a student with a disability and placed on a Section 504 plan while in the sixth grade at Olivenhain Pioneer Elementary School in the Encinitas Union School District. Diagnosed with ADHD, her symptoms included inattention, hyperactivity and impulse control challenges. Her 504 plan provided her with accommodations such as auditory and visual instructions, movement breaks and extended time on tests.

Once she got to SDUHSD’s Diegueno Middle School in 2015, Yasi was exited from her 504 five weeks into her seventh grade school year.

The then-principal of Diegueno had determined that Yasi no longer qualified for a 504 because of her good grades and because she was taking ADHD medication and doing extra studying to help her compensate. Erwin said she and her husband were encouraged to sign the exit as they were not familiar with the legal requirements and because they were told that if Yasi had any trouble, she would be put back on the 504.

Within just two months, Yasi was back to being unable to focus, knitting in the back of class, losing her homework and her self-esteem had plummeted. Yasi said when she asked her teacher if she could take a test in a quiet room so she would have no distractions, the teacher told her that she needed to grow up, embarrassing her in front of the class. As a result, Yasi said she never asked for any accommodation again.

“My daughter wanted to quit school,” Erwin said. “She regularly came home from school in tears. She regularly felt that her teachers and principal mocked her disability because they thought she made it up.”

She earned good grades because she was “relentless,” doing her homework multiple times in a frenzy, studying until 1:30 a.m. — Yasi said that’s what she needed to do to get the information to “stick in my brain and come out the right way.”

In February 2016, Erwin asked for the reinstatement of the 504. A meeting was scheduled and then canceled in the spring as Yasi was determined no longer eligible because of her “stellar grades, satisfactory attendance and excellent behavior,” leaving her without a 504 for her entire seventh grade year.

In the 2016 school year, her eighth grade year, the Erwins went through three 504 meetings over the course of three months. They detailed all of Yasi’s major life activities that were affected by her impairments, including thinking, concentrating, learning and sleeping. The Erwins also provided a letter from her physician providing evidence of a disability, past teacher report cards and evaluations about the impacts of her ADHD, and at the third meeting, Yasi herself presented a “heartbreaking” Power Point presentation about her challenges and how her passion for school and learning had disappeared since her 504 plan was taken away from her.

She asked for a quiet room for tests, a white board for math tests, written instructions and to not be embarrassed in front of the class about ADHD-related mistakes.

“If I had no legs, would you deny me a wheelchair ramp and force me to crawl up the stairs? I crawl up the stairs every day,” Yasi said. “One of my teachers told me that I shouldn’t worry about doing well in school because if I don’t do well I can go to junior college. She said this to me in front of the class. Why does wanting to learn seem to be such a problem?”

The district team concluded that Yasi was not substantially impacted by her ADHD and that she was not a student with a disability.

“It was unacceptable the way the district treated her,” Erwin said. “The district had an adversarial approach that was very inappropriate, with teachers parroting the lawyer and district administrators. The district’s lawyer argued every point, and there was even eye rolling.”

Erwin filed a complaint with the Office of Civil Rights in July 2016, after she discovered that the reasons the district had used to exit Yasi from her 504 were the wrong legal standard.

In 2016, the OCR issued a guidance letter stating that as the ADA Amendments Act of 2008 clarified a broader scope and definition of the term “disability,” more students with ADHD are now entitled to protections under Section 504.

The letter stated that from 2011 to 2015, the OCR received more than 16,000 complaints alleging discrimination on the basis of disability. About one in nine complaints were related to allegations of discrimination against a student with ADHD as districts were having problems identifying and evaluating students who need special services because of ADHD.

According to a 2016 Department of Education resource guide for students with ADHD, the Amendments Act broadened the interpretation of the terms that define disability by expanding the list of examples of major life activities by adding things like sleeping, standing, lifting, bending, breathing and concentrating. The act also stated that mitigating measures such as the ameliorative effects of medication shall not be considered in determining whether an individual has a disability, as was done with Yasi.

The guide also stated that students with ADHD may achieve a high level of academic success but may still be substantially limited in a major life activity because of the additional time or effort he or she must spend to read, write, or learn compared to others.

“Solely relying on a student’s grades is wrong. You can’t look only at childrens’ grades to determine eligibility under Section 504,” Dempsey said.

The guide stated that although a district could request relevant information from parents, the district cannot require the parent to provide certain data or information before conducting an evaluation.

“You cannot burden a parent with establishing a disability,” Dempsey said. “Most do not have the means to do this.”

The guide also stated that post-Amendments Act, the definition of disability, is to be “construed broadly and the determination of whether an individual has a disability should not demand extensive analysis.” Dempsey pointed out that the Erwins had endured meetings that were over two and a half hours long each over the course of those three months—which she would qualify as extensive and “exhaustive”.

“It shouldn’t take hours and hours for school administrators to determine if a child has an impairment that rises to the level of disability,” Erwin said.

“We’re talking about a family with two highly-educated parents who have the resources and are able to take time off from work,” Dempsey said. “What about the parents who can’t take that time off work?”

After nearly two years, the OCR released its decision in May, finding that San Dieguito’s three meetings were “procedurally inadequate because the district team members incorrectly interpreted the legal definition of a disability.” OCR found that the district did not consider what Yasi was like without her medications and without supports in place and only considered her good grades, attendance and attitude during the school day in making its determination.

OCR also found that SDUHSD had systematically exited students from 504 eligibility and failed to identify students as being eligible for services under Section 504. During the review, OCR found another case in which a seventh grader was found ineligible in 2015 that was not consistent with the ADA Amendments Act.

Dempsey said Yasi’s case is an example that all school districts need to be aware of amendments and changes, what is correct and what is no longer relevant.

“It’s a lack of education and understanding of the well-established law. It all goes back to professional development,” Dempsey said. “Countywide in San Diego, districts are still producing parent handbooks with erroneous information on 504 and procedural safeguards. That is concerning.”

She said parents experience a “chilling effect” with the 504 appeal process and there is a sense that most parents don’t know what they are getting into. Dempsey has also noted a troubling trend on the rise: the practice of asking parents for a HIPAA (Health Insurance Portability and Accountability Act) release in determining 504 eligibility.

Moving forward

Miller said the numbers of students with 504 plans continues to increase exponentially throughout the state. In the 2014-15 school year, San Dieguito had 432 students on a 504 plan. In the 2017-18 school year, there were 744, up from 563 in 2016-17.

“Partially the reason is that the law was adjusted to be broader and cover more people so more students are qualifying for a 504 plan,” Miller said.

School districts do not receive additional funding to supplement the additional staff required for 504 plans—it is incorporated into the duties of existing staff so Miller said the district does the best it can to make sure staff is trained on updated policies and laws. He said the district’s talented new Director of Student Services, Tiffany Hazlewood, and Coordinator of Student Services, Melissa Sage, who handle Section 504s, both understand the law. Each school site also has its own 504 coordinator.

He said the district frequently coordinates with experts and works together with other school districts to ensure they are all up to speed with the right information.

Procedural safeguards are in place, like the one Erwin undertook.

“I believe we are doing a great job of working with parents at the site level,” Miller said, noting that there has not been another appeal like Erwin’s.

Yasi left the San Dieguito district and for her freshman year attended a charter school briefly until the Erwins discovered that unfortunately the school was not accredited. Yasi then went to a community college in the spring and all summer to make up for that year— community colleges are not required to provide FAPE but they are required to provide academic adjustments if the student qualifies. Yasi did and was given the accommodation of using a quiet testing center.

While the OCR ruling included that Yasi be reassessed for a 504 by SDUHSD using the correct legal standard, she is now a sophomore at a private school. She is still “relentless to succeed” and willing to do whatever it takes in her education.

In her Power Point presentation she said: “No matter what you do to me, I will survive and work as hard as I need to... I will succeed because that’s what I’ve always done since I was little.”

Erwin hopes that the OCR finding will make a difference for all kids all over the country who have been improperly denied of a 504 or never identified to begin with.

“Sabrina really is a champion, fighting for her daughter and other children’s rights,” Dempsey said.

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