Office for Civil Rights Addresses Asthma, Diabetes, Food Allergies, and GERD; Issues Guidance on Medical Conditions Triggering Protections Under Section 504

February 20, 2024, Office for Civil Rights (OCR) released individual guidance documents on asthma, diabetes, food allergies, and gastroesophageal reflux disease (GERD).

The documents address how these medical conditions "can be disabilities for purposes of Section 504 . . . 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 asthma, diabetes, food allergies, and GERD.

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

For example, OCR states that a student who has asthma, diabetes, food allergies, and/or GERD is considered a student with a disability if the medical condition substantially limits one or more of their major life activities. The same applies to other medical conditions.

How is "Substantially Limits" Determined?

OCR provides the following information within each of the four 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 a medical condition may:

  • be absent from school due to medical appointments;
  • frequently arrive late;
  • fall asleep in class;
  • feel lethargic;
  • become restless or inattentive;
  • act irritable, angry, stubborn, or confused;
  • experience increased thirst and urination;
  • experience pain and/or discomfort;
  • leave class frequently;
  • experience isolation from peers to avoid activities that risk triggering an asthma attack;
  • experience isolation from peers at mealtimes in order to avoid exposure to allergens;
  • have an ongoing sense of fear or stress about the possibility of a life-threatening incident; and/or
  • experience an asthma attack, anaphylaxis, and/or another life-threatening incident related to their medical conditions.

Keep in mind the above list provides OCR's examples and is not a comprehensive list.

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

According to OCR's guidance, "If the student’s diabetes 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

Asthma

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

  • permitting a student to carry and self-administer quick-relief medication through an inhaler or otherwise;
  • excusing a student from activities that risk triggering an asthma attack;
  • ensuring the educational environment is free of a student’s asthma triggers, including during field trips and extra-curricular activities where possible; and/or
  • 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 asthma hinders a student’s ability to complete their work.

Diabetes

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

  • allowing the student to eat a snack or a source of fast-acting sugar (such as candy) during instruction, or—in an elementary or secondary school setting—go to lunch early or late;
  • allowing the student who is capable of doing so to carry the emergency medication glucagon and carry and self-administer other medications, such as insulin; for students in an elementary or secondary school setting, ensuring school staff are trained on how to assist with diabetes care, such as by administering glucagon and checking blood sugar, and for students who are not capable of carrying glucagon, storing the glucagon in a quickly accessible place;
  • allowing the student to reschedule an exam if their blood sugar is high, and pause the clock if they experience low blood sugar during an exam;
  • 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 high or low blood sugar hinders a student’s ability to complete their work; and/or allowing the student to leave class to use the restroom as needed.

Food Allergies

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

  • designating allergy-free eating areas such as peanut-free tables, and providing clearly labeled, dairy-free, or other allergen-free food options in school cafeterias, dining halls, and at school events;
  • prohibiting certain foods in classrooms and/or school buildings, and providing notice to students and families about all food allergy-related rules;
  • ensuring eating and learning environments are free of food allergens, including during field trips and extra-curricular activities where possible, by, for example, wiping down tables, chairs, and other surfaces before use by the person with an allergy;
  • permitting students who are capable of carrying and using an epinephrine auto-injector at school and during school-related events to do so or—for students in an elementary or secondary school setting who are not capable of carrying or using an auto-injector—storing the epinephrine auto-injector in a quickly accessible place and ensuring school staff are trained on how to use it; and/or
  • 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 food allergies hinder a student’s ability to complete their work.

GERD

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

  • allowing the student to eat snacks during instruction or—in an elementary or secondary school setting—go to lunch early or late;
  • granting periodic requests by students or parents for distance learning or the provision of necessary instructional materials for use at home when GER- or GERD-related symptoms intensify, making it difficult for a student to leave home;
  • 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 GER or GERD hinder a student’s ability to complete their work; and/or
  • allowing the student to leave class to use the restroom as needed.

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

What Else Do You Need to Know?

OCR's new guidance documents don't fully address the issues that have, 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."

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