June 20, 2024, Office for Civil Rights (OCR) released individual guidance documents on cancer, epilepsy, and sickle cell disease.

The documents "explain when these medical conditions trigger protections under Section 504, what kind of modifications an educational institution may need to take to avoid unlawful discrimination, and what an institution may need to do to remedy past discrimination."

In addition, they provide descriptions of the medical conditions and examples of how the conditions can affect a student's experience in school.

What You Need to Know

The guidance is not restricted to cancer, epilepsy, and sickle cell disease.

OCR's guidance specifically mentions three medical conditions, but the guidance itself is applicable to other medical conditions.

For example, OCR states that a student who has cancer, epilepsy, and/or sickle cell disease is considered a student with a disability if the medical condition substantially limits one or more of the student's major life activities. The same applies to other medical conditions.

How is "Substantially Limits" Determined?

OCR provides the following information within each of the three guidance documents:

"Under Section 504, the issue of whether an impairment substantially limits a major life activity should not demand extensive analysis. 29 U.S.C. § 705(20)(B) (incorporating 42 U.S.C. § 12102(4)(B), which incorporates § 2(b)(5) of the findings and purposes of the ADA Amendments Act of 2008).

"The term substantially limits must be construed broadly in favor of expansive coverage, to the maximum extent permitted by the statutory language. 29 U.S.C. § 705(20)(B) (incorporating 42 U.S.C. § 12102(4)(A)).

"An impairment does not need to prevent, or significantly or severely restrict, an individual from performing a major life activity in order to be considered substantially limiting. It is enough that an impairment substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. Additionally, an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 29 U.S.C. § 705(20)(B) (incorporating 42 U.S.C. § 12102(4)(B), which incorporates § 2(a)(7)-(8), (b)(5)-(6) of the findings and purposes of the ADA Amendments Act of 2008, and § 12102(4)(D)).

"The beneficial effects of mitigating measures, such as medication, used by an individual, must be disregarded in determining whether an impairment substantially limits a major life activity of an individual. 29 U.S.C. § 705(20)(B) (incorporating 42 U.S.C. § 12102(4)(E))."

How Can Medical Conditions Affect a Student's Experience in School?

According to OCR's guidance, a student with be impacted in the ways listed below:

Students with Cancer

"Students with cancer may: be absent from school due to medical appointments, the side effects of cancer or cancer treatment, hospitalization, or care at home; have difficulty concentrating; have reduced immunity to colds or other contagious illnesses; experience increased thirst and dehydration and/or difficulty eating; experience changes in appearance; and/or; have an ongoing sense of fear or stress about cancer and cancer treatment."

Students with Epilepsy

"Students with epilepsy may: be absent from school due to medical appointments, seizures, the side effects of anti-seizure medication, hospitalization, or care at home; and/or experience isolation from peers to avoid activities that risk triggering a seizure.

"Before a seizure, students with epilepsy may: have difficulty concentrating; have an ongoing sense of fear or stress about the possibility of a seizure; and/or exhibit behavioral problems and/or mental health issues prior to the onset of seizures.

"During a seizure, students with epilepsy may: lose consciousness, fall, or faint; experience a sudden onset of extreme emotions such as joy, sadness, or anger; hear, smell, taste, see, or feel things that are not real; and/or display repetitive behaviors such as blinks, twisting, jerks, twitches, mouth movements, or walking in a circle.

"After a seizure, students with epilepsy may: experience an impact on their mental health, including depression and anxiety; experience extreme fatigue, nausea, confusion, or headaches, or pain in the muscles that contracted during the seizure; and/or experience some degree of memory loss or an inability to concentrate."

Students with Sickle Cell Disease

"Students with SCD may: be absent from school due to medical appointments, severe pain, other complications of SCD, hospitalization, or care at home; have an ongoing sense of fear or stress about a painful sickle cell crisis; and/or need to take medication; or drink during classroom instruction."

Keep in mind the above lists provide OCR's examples and are not necessarily comprehensive lists.

What Should Schools Do to Address a Student's Medical Condition?

According to OCR's guidance, if a student’s medical condition "has resulted in the student having a disability under Section 504, that student may require certain modifications (sometimes referred to as accommodations) to meaningfully access or benefit from the school’s educational opportunities. 34 C.F.R. §§ 104.4, 104.44. This is true even if the student is not substantially limited in the major life activity of learning."

OCR Modification Examples

Cancer

Section 504 may require a school to provide modifications such as the following:

• allowing the student to make up work, without penalty, and excusing late arrivals and absences when they miss class due to a medical appointment or when cancer-related symptoms or treatment hinder a student’s ability to complete their work;
• adjusting a student’s school schedule to include extra time to travel between classes, preferred locker or parking assignments, and periodic rest breaks or as-needed rest periods;
• preferred seating and other modifications that may be necessary for a student who occasionally has difficulty concentrating or has changes in behavior or mood;
• allowing the student to consume water and snacks during instruction, or—in an elementary or secondary setting—go to lunch early or late;
• adapting requirements for the required level of activity for participation in strenuous physical activities, such as in physical education and recess activities;
• providing prompt notification in a non-personally identifiable form when another student in the class has a contagious illness, such as the flu, COVID-19, chicken pox, or measles;
• allowing the student to use the restroom as needed and/or; granting periodic requests by students or parents for distance learning or the provision of necessary instructional materials for use at home when cancer-related symptoms or treatment intensify, making it difficult for a student to leave home.

Epilepsy

Section 504 may require a school to provide modifications such as the following:

• allowing the student to make up work, without penalty, and excusing late arrivals and absences when they miss class due to a medical appointment or when epilepsy-related symptoms or treatment hinder a student’s ability to complete their work;
• providing extra time to complete assignments, access to a quiet space for tests, preferred seating, periodic rest breaks, and other modifications that may be necessary for a student who occasionally has difficulty concentrating or has changes in behavior or mood;
• granting periodic requests by students or parents for distance learning or the provision of necessary instructional materials for use at home when epilepsy related symptoms or treatment intensify, making it difficult for a student to leave home;
• allowing the student who is capable of doing so to carry medication and self-administer the medication at prescribed times or if they sense a seizure may be coming on; for students in an elementary or secondary school setting, ensuring school staff are trained on how to respond appropriately if a student in their classroom has a seizure; and/or
• allowing the student to leave class to visit the school nurse’s office to rest following a seizure or to recover from the debilitating effects of anti-seizure medication.

Sickle Cell Disease

Section 504 may require a school to provide modifications such as the following:

• allowing the student to make up work, without penalty, and excusing late arrivals and absences when they miss class due to a medical appointment or when SCD-related symptoms hinder a student’s ability to complete their work;
• providing preferred seating to avoid exposure to cold or damp conditions or drafts to avoid triggering a pain crisis or other complications;
• allowing periodic rest breaks or as-needed rest periods;
• allowing the student to consume water during instruction;
• allowing the student to use the restroom as needed;
• modifying participation requirements in outdoor activities to avoid sudden changes in temperature or exposure to extreme hot and cold temperatures;
• adapting requirements for the required level of activity for participation in strenuous physical activities, such as in physical education and recess activities;
• implementing appropriate sanitation practices, e.g., wiping down desk, to prevent infections;
• providing prompt notification in a non-personally identifiable form when another student in class has a contagious illness, such as the flu, COVID-19, chicken pox, or measles; and/or
• granting periodic requests by students or parents for distance learning or the provision of necessary instructional materials for use at home when SCD-related pain or other symptoms intensify, making it difficult for a student to leave home.

Please note OCR's reminder that, even if a student who has cancer, epilepsy, and/or sickle cell disease "has a disability but does not need modifications, they would still be protected from discrimination, such as disability-based harassment. For example, Section 504 may require a school to respond to bullying or harassment targeted at students because of their medical condition, or because they are regarded as or have a record of having a disability. 34 C.F.R. § 104.3(j)(1)(ii) & (iii). Such bullying or harassment, for example, could be related to a student’s absences, physical appearance due to jaundice, frequent trips to the restroom, or inability to participate in certain activities."

What Else Do You Need to Know?

OCR's new guidance documents don't fully address the issues that have come up, and continue to come up, regarding the experiences of students who have medical disabilities. The following are a few examples of issues OCR investigated in the past few years.

Divisions Can't Require Parents to Implement 504 Services at School

In 2017, OCR issued a resolution letter to, and entered into a resolution agreement with, Fairfax County Public Schools (FCPS), Virginia, after investigating the school district. In this case, the focus was on students who have diabetes. In its resolution letter, OCR addressed FCPS' discriminatory practice of requesting "parents to come to their children's schools to provide Section 504 services to them rather than [FCPS] providing those services" and FCPS' assertion "that it was not required to provide insulin pump services, and this position appeared to be categorical in nature, based on the advice of a staff person at the Children’s National Medical Center asserting that Division staff are not competent to provide such services because of the number of different pumps, each of which operates in a different way from the others, the infrequent occasions on which staff would be called upon to provide such services, and the resulting inability of staff to provide reliable pump-related services."

In its resolution agreement with OCR, FCPS agreed to the following:

"The Division will provide all staff who are responsible for the immediate custodial supervision or care of a student with diabetes with the proper level of training, for example, but not limited to, the training described in the Guide (e.g., at pages 18-20) or training made available by the American Diabetes Association. For Division staff with responsibilities that are categorized as Level 3 in the Guide, the training will include the instruction necessary to provide the diabetes-related aids and services in the student’s Plans and to comply with Section 504 and Title II, including those relating to any insulin pump. The training will also include instruction in those diabetes-related aids and services Division staff are to provide in the event of the failure of the student’s pump (if any). The Division will provide the necessary level of training prior to the beginning of each such school year for all such staff who are hired before the school year starts and within four weeks of the hiring of such a new staff member, the enrollment of a new student with diabetes, or the date on which a staff member becomes responsible for a student with diabetes, e.g., through reassignment of the student to a new class. All diabetes-related aids and services will be provided by Division staff who have received the proper level of training. . . .

"The Division will not require or request that a student’s parent or guardian provide the student with diabetes-related aids or services unless the student’s parent or guardian has submitted a written request to themselves provide the student with the aid or service. However, the Division is permitted to notify a parent or guardian, in accordance with the provisions of the student’s Plans or who has otherwise requested to be notified, of the Division’s provision of diabetes-related aids or services."

Services at School Sponsored Events

In the same 2017 resolution letter to FCPS, OCR addressed FCPS' discriminatory practice of restricting services to division-sponsored events:

"The Division asserted that it was not required to provide services during XXXX even when they are on Division premises because it was required to provide services only at Division-sponsored events. However, Section 504 requires the Division to provide students with disabilities with special education and related services during school hours and extracurricular activities that receive significant assistance from the Division, regardless of whether the Division sponsors the activities."

In its resolution agreement with FCPS, OCR expanded on the division's responsibilities to students who, in this case, have diabetes:

"The Division will provide the aids and services required by this Agreement during all regularly scheduled activities (including classes) of a student with diabetes that are conducted by the Division. The Division will also provide these aids and services during all optional and extracurricular activities in which a student with diabetes is an actual participant (rather than merely an observer or audience member) that, although not conducted by the Division, receive significant assistance from the Division, provided that each student or the student’s parent or guardian must provide written notice to the school principal or designee, or other appropriate designated Division staff member, of the student’s participation in the activity at least five school days in advance (email notice is acceptable) unless Division staff already have such notice, e.g., if the student regularly participates in the activity and is on a list of participants in the possession of Division staff at least five school days in advance. All diabetes-related aids and services will be provided by Division staff who have received the proper level of training, as described below.

"If the Division is of the opinion that a particular activity that is sponsored by the Division or takes place on Division property does not receive significant assistance from the Division and that it will therefore will not provide diabetes-related aids or services for students with diabetes who will participate in that activity, it will notify the parents or guardians of these students at least three school days before the activity is to take place and will provide them with notice of their rights, including the right to file a grievance with the Division or a complaint with OCR, and information on who to contact in connection with such a filing."

Emergency Plans Can't Be Changed Without Notice

In 2023, OCR issued a resolution letter to, and entered in into a resolution agreement with, Clover Park School District (CPSD), in Washington, which address the changing of a student's emergency plan and 504 plan without providing notice to parents or 504 team members.

In its resolution letter, OCR shared the following facts:

"Student A is a qualified person with disabilities that substantially limit one or more major life activities. During the 2022-2023 school year, Student A was in the 12th grade at XXXXXX (School). Student A has had a Section 504 plan since she started at the School in the 9th grade, and her Section 504 plans, including the plan in effect on XXXXXXXX, refer to Student A’s emergency health and asthma care plans (emergency plans) as accommodations with reference to Student A’s disability-related needs.

"On XXXXXX, Student A’s parent and a health clerk (signing as health room staff), signed an updated emergency plan for Student A; on XXXXX, a school nurse signed as well. The XXXXXXX, emergency plan provides, in bold, that 911 was to be called if Student A suffered a blow to any area [of her body], and/or if her asthma worsened in severity and/or did not improve with the use of an inhaler. The plan does not reflect that 911 should be called before providing any other emergency care to Student A in the event she suffered a blow.

"On XXXXX, a different school nurse (Nurse A), revised Student’s emergency plan to state, again in bold, that 911 should be called if Student A suffers a blow to the chest area (not anywhere on her body), or if any difficulty Student A is having to breathe does not resolve with rescue medication. The plan Nurse A revised does not reflect that any other District staff, or Student A’s parents, reviewed or signed it beforehand.

"On or about XXXXXXXX, the District developed an updated 504 plan for Student A. The XXXXXX 504 plan provides that 911 should be called if Student A takes a blow to the chest, and that Student A should be further assessed while waiting for the paramedics. Student A’s counselor signed the XXXXX 504 plan on XXXXX. No one else signed the XXXXX 504 plan until XXXXXXX. District records indicate that the contents of the XXXXXX 504 plan were not distributed to District staff until XXXXXXXXX.

"On XXXXXX, at approximately 7:15 a.m., Student A was involved in a physical altercation with another student before school hours while on campus, after which Student A sought treatment from the school nurse (Nurse B).

"Student A told OCR that she told Nurse B that she had been hit in the chest and was having trouble breathing. Student A was given her inhaler, but Student A said that this did not help and she kept repeating that she could not breath. According to Student A and Student A’s parent, Student A called her mother, who then insisted that a staff person call 911.

"District records reflect that Student A arrived in Nurse B’s office at 7:18 a.m. “post-altercation.” Student A told Nurse B she was hit in the chest, and Nurse B assessed Student A’s vital signs and provided Student A her inhaler. Student A called her parent, who requested that District staff call 911. Nine-one-one was called at 7:19:06 a.m. Emergency medical services (EMS) arrived at 7:46 a.m., and Student A was checked out of the School at 7:52 a.m. for transport to the hospital."

OCR's examination of the evidence established that the changes made to the student's emergency plan and 504 plan were "material and limited the circumstances triggering the requirement that District staff call 911 for Student A in the event of a medical emergency." In addition, the evidence OCR gathered, "reflects that these changes may have been made without notice to or the involvement of other members of Student A's 504 team, including Student A's parents."

In its resolution agreement with OCR, CPSD agreed to review its policies, procedures, and practices; provide written notice to staff, informing them of revised policies, procedures, and practices; train staff on the revised policies, procedures, and practices; and to send a letter to the student and her parents stating the following:

"District is committed to complying with the requirements of Section 504 and Title II, that it is revising its Section 504 policies and procedures to ensure that they cover Health Plans, as applicable, and that it will conduct training of XXXXX School staff on the revised policies and procedures once the revisions are complete."