k-12 students with pain disorders: provision of services ...€¦ · a. section 504 of the...

©2019 Sherrill Linkous, K.; Payne, K.S.; Rippner, J. 1

K-12 Students with Pain Disorders: Provision of Services and Accommodations under § 504 and IDEA

Prepared for Presentation at the 2019 Education Law Association Annual Conference Norfolk, Virginia

By

Kelly A. Sherrill Linkous, Esq., J.D., Ph.D. Assistant Professor and Program Co-Director, Educational Leadership and Administration,

The George Washington University

and

Kimberly S. Payne, J.D., ABD Music Educator

Fauquier County Public Schools, Virginia

and

Jennifer Rippner, Ph.D., J.D. Visiting Lecturer of Education Law

Indiana University


I. INTRODUCTION

The purpose of this paper is to provide an overview of the law impacting provision of

educational opportunities, accommodations and services to students with pain disorders. This

paper utilizes § 504 of the Rehabilitation Act of 1973 (§ 504), the Americans with Disabilities

Act (ADA), and the Individuals with Disabilities Act (IDEA) and their accompanying

regulations to identify legal issues that arise with students who suffer from primary pain

disorders such as migraine headaches, lupus, fibromyalgia, endometriosis, Crohn’s/colitis, and

other pain-inducing disorders.1 The paper will review relevant sections of the aforementioned

statutes and regulations and the case law and due process hearing decisions deciding issues

involving students with pain disorders.

Students with pain disorders experience numerous and varied symptoms and

repercussions because of their disorders. Students who experience pain due to frequent migraine

headaches, fibromyalgia, lupus, chronic fatigue syndrome, and similar disorders may miss a

substantial amount of school (absenteeism and tardiness), may not be able to complete

assignments in the time expected because of the interference of pain and lack of sleep, may have

trouble paying attention in class, and may have physical limitations impacting their ability to

engage in note taking, paper writing, reading, and group projects. Indeed, they may be unable to

attend school at all. These limitations and repercussions may affect their academic performance,

although a district may not focus exclusively on the student’s major life activity of academic

learning in determining whether she is eligible for FAPE under § 504.2

This paper will review the issues, facts and analysis from relevant case law and state due

process hearing decisions to discuss how courts or hearing officers decided issues involving

● application of § 504, ADA and/or IDEA;

1 This paper focuses on students whose primary disability is a pain disorder. It excludes cases that involve students who have other primary disabilities, such as autism, emotional disturbances, intellectual disabilities, or specific learning disabilities, and who also have concurrent pain disorders. Importantly, however, school districts must accommodate and provide FAPE for any concurrent disabilities experienced by students who otherwise receive services under the Individuals with Disabilities Education Act (IDEA), 20 U.S.C. § 1400 et seq. (2004), or under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 705, 794 et seq. (1973), as amended by the Americans with Disabilities Act Amendments of 2008, 42 U.S.C. § 12102 et seq. (2008). 2 See, e.g., Letter to McKethan, 23 IDELR 504 (OCR 1995).


● eligibility determinations and provision of FAPE under any of these statutes;

● legal issues that presented for students with pain disorders;

● what services and accommodations were appropriate for students with a variety of

pain disorders; and

● other issues that arose in these decisions.

II. STATUTORY OVERVIEW

A. SECTION 504 OF THE REHABILITATION ACT OF 1973 AND THE 2008 AMERICANS WITH DISABILITIES ACT AMENDMENTS

The majority of cases and due process hearing decisions apply § 504 to issues involving

the education and treatment of students with pain disorders. Eligibility for services and

protection under § 504 require a school division to determine that a student, as a result of an

evaluation, has a “physical or mental impairment” that “substantially limits one or more major

life activities.”3 Major life activities include, but are not limited to caring for one’s self; eating;

performing manual tasks; sleeping; walking; bending; seeing; standing; hearing; lifting;

speaking; reading; breathing; concentrating; learning; thinking; working; and communicating.4

Congress also provided that “a major life activity also includes the operation of a major bodily

function, including but not limited to, functions of the immune system, normal cell growth,

digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and

reproductive functions.”5 Importantly, the United States Office for Civil Rights (OCR), the

agency with enforcement power over ADA and § 504, has warned schools not to limit their

evaluation inquiry to the major life activity of “learning.”6

The 2008 Amendments to the ADA – which apply to construction of § 504 – state that

the “definition of disability . . . shall be construed in favor of broad coverage of individuals . . . to

3 29 U.S.C. §705(20)(B); 42 U.S.C. §12102(1). 4 34 C.F.R. §104.3(j)(2)(ii); 42 U.S.C. §12102(2)(A). 5 42 U.S.C. §12102(2)(B). 6 See, supra, note 2.


the maximum extent permitted by the terms of this Act.”7 Further, determination of “whether an

individual’s impairment is a disability . . . should not demand extensive analysis.”8 And it

prohibited school districts from considering the ameliorative effects of most mitigating measures,

such as medications or devices, in determining whether a person’s impairment is substantially

limiting.9 Finally, an episodic impairment, such as migraine headaches or pain related to

illnesses such as Crohn’s disease and fibromyalgia, may still qualify a person under § 504/ADA

as long as it is substantially limiting when active.10 An impairment need not prevent or severely

or significantly restrict a major life activity in order to be substantially limiting.11 OCR has stated

that “in virtually every case, a determination in favor of disability will be made.”12

Once a school division determines that a student has a physical or mental impairment that

substantially limits at least one major life activity, it must determine what – if any – services the

student must receive in order to receive a free, appropriate public education (FAPE). The § 504

regulations provide that a “recipient that operates a public elementary or secondary education

program shall provide a free appropriate public education to each qualified [person with a

disability] who is in the recipient’s jurisdiction, regardless of the nature or severity of the

person’s [disability].”13 The § 504 regulations further state that provision of general or special

education and related aids and services should be “designed to meet individual educational needs

7 42 U.S.C. §12102(4)(A). 8 42 U.S.C. §12101(b)(5). 9 42 U.S.C. §12102(4)(E). 10 42 U.S.C. §12102(4)(D). 11 42 U.S.C. §12101(a)(8). 12 Dear Colleague Letter, 58 IDELR 79 (OCR 2012). 13 34 C.F.R. § 104.33(a). ADA also contains substantive requirements akin to FAPE: “no qualified individual with a disability shall, by reasons of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by such entity.” 42 U.S.C. § 12132. OCR has stated that school districts must provide FAPE to comply with the ADA. Letter to Rahall, 21 IDELR 575 (OCR 1994).


of [disabled] persons as adequately as the needs of [nondisabled] persons are met.”14 While not

required, school districts may ensure that they meet FAPE through an Individual Education

Program (IEP) as it would if the student were eligible under IDEA.15

Courts and OCR are divided on the standard required for providing a FAPE under § 504.

The federal courts have required that schools provide reasonable accommodations to § 504-

eligible students.16 Federal courts will find that a school district has met its FAPE obligations

under § 504 if the education programs for students with disabilities are designed to meet their

individual needs to the same extent that the needs of nondisabled students are met. OCR,

however, has stated that this standard is too low: “The ‘reasonable accommodations’ legal

standard is not applicable to FAPE under § 504.”17 If a school district provides special education

and related services that are appropriate under IDEA, then it has met the obligations of § 504

(although courts and OCR debate whether meeting the IDEA standard for FAPE is required for

students served only under § 504). The United States Department of Education’s Office of

Special Education Programs (OSEP) has distinguished the obligation to provide FAPE under §

504 as consisting of either regular or special education, and related aids and services, as

implemented by any appropriate means.18 Importantly, a school district has an obligation to fund

whatever services are needed to deliver FAPE under § 504, without regard to the costs of such

services.19

14 34 C.F.R. § 104.33(b)(1)(i). 15 34 C.F.R. § 104.33(b)(2). 16 See, e.g., J.D. v. Pawlet Sch. Dist., 224 F.3d. 60, 71 (2d Cir. 2000); Brado v. Weast, 2010 U.S. Dist. LEXIS 5932, at *11 (D. Md. Jan. 26, 2010) (“to comply with [§ 504], MCPS must provide reasonable accommodations for handicapped students,” citing 29 U.S.C. § 794). 17 Letter to Zirkel, 20 IDELR 134 (OCR 1993). 18 Letter to Williams, 21 IDELR 73 (OSEP 1994). 19 Letter to Zirkel, 16 IDELR 1177 (OCR 1990); Letter to Zirkel, 20 IDELR 134 (OCR 1993).


B. INDIVIDUALS WITH DISABILITIES EDUCATION ACT (“IDEA”)

If a student’s pain disorder meets the eligibility criteria of “Other Health Impairment”

under IDEA, and the child, “by reason thereof, needs special education and related services,”20

then the child would qualify for eligibility and receive services under IDEA. Importantly,

IDEA’s accompanying regulations require that, to need special educational and related services

under IDEA, the child’s condition must adversely affect her educational performance.21

Congress left the states to define the terms “adversely affects a child’s educational performance”

and “needs special education and related services.”22

A child with an Other Health Impairment has –

limited strength, vitality, or alertness, including a heightened alertness to environmental

stimuli, that results in limited alertness with respect to the educational environment, that

(i) is due to chronic or acute health problems such as asthma, attention deficit disorder or

attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia,

lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette

syndrome; and

(ii) adversely affects a child’s educational performance.23

Students with pain disorders easily meet prong (i) of the regulatory definition for Other Health

Impairment. The IDEA eligibility issue involves prong (ii), whether the pain disorder also

adversely affects that child’s educational performance. Several decisions have turned on

whether a student’s pain disorder adversely affected her education,24 while several more cases

20 20 U.S.C. § 1401(3); see also 34 C.F.R. § 300.8(a)(1). 21 34 C.F.R. § 300.8(c)(1)-(c)(13). 22 J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 66 (2d Cir. 2000). For instance, Massachusetts finds that a disability “adversely affects a child’s educational performance” when “the student is unable to progress effectively in the general education program without the provision of specially designed instruction, or is unable to access the general curriculum without the provision of one or more related services . . . .” 603 C.M.R. §28.05. 23 34 C.F.R. § 300.8(c)(9). 24 See S.P. v. Fairview Sch. Dist., 2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30, 2014) (parents contended that student with severe refractory migraine headaches should have been found eligible under IDEA as a student with an OHI because the migraines caused his failure to


and selected due process hearing decisions merely reference students with pain disorders who

qualified for special education and related services as OHI under IDEA.25

attend school; the court declined to rule on the merits of this claim due to insufficient pleading); Brado v. Weast, 2010 U.S. Dist. LEXIS 5932 (D. Md. Jan. 26, 2010) (holding that a student with Postural Orthostatic Tachycardia Syndrome, or POTS, that caused her to experience severe pain throughout her entire body was not eligible under IDEA as a student with OHI because no medical or educational experts testified that she required altered instruction, such as hospital/homebound instruction, to make progress in the regular curriculum); Boston v. Bureau of Special Educ. Appeals, 2008 U.S. Dist. LEXIS 39992, at *18 (D. Mass. Apr. 30, 2008) (finding that a student with Crohn’s disease which limited his ability to attend school, thereby limiting his ability to progress from grade to grade, “comes within the definition of a child with a disability under IDEA”); Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 150 (2d Cir. 2002) (finding that a student with chronic fatigue syndrome and fibromyalgia could have been found eligible under IDEA due to “disabling physical ailments that limited her strength, vitality and alertness and made it impossible for her to attend school”); J.C. v. Cumberland Valley Sch. Dist., ODR No. 14638-1314KE (SEA Pa. Feb. 3, 2015) (agreeing with school district’s determination that student with Crohn’s disease was not eligible under IDEA as a student with an OHI because his inability to attend school was not adequately proven to be related to his disability; student was eligible for services under § 504 only); Forest Hills Pub. Schs., 2011-782 (SEA Mich. Jan. 27, 2012) (finding that a school district should have found a student with chronic fatigue immune deficiency syndrome and fibromyalgia eligible as a student with OHI under IDEA because her disorders led to truancy, “limit[ing] the amount of time she [was] able to spend on her education and, in turn, [affected] her educational performance,” at *23). 25 While not at issue in the case, the court in D.G. v. Flour Bluff Indep. Sch. Dist., 481 Fed. Appx. 887, 893, 2012 U.S. App. LEXIS 11100, at **17 (5th Cir. June 1, 2012) referenced a school district’s provision of services under IDEA for a student whose sole disability at the time was rheumatoid arthritis (“D.G. eventually was determined eligible under IDEA for special education . . . on a different basis – his recently diagnosed and worsening rheumatoid arthritis.”). In William W. v. Board of Educ. of Moline Sch. Dist. No. 40, 2007 U.S. Dist. LEXIS 3959 (C.D. Ill. Jan. 18, 2007), a student who had asthma, GERDS, migraines, rhinitis and lactose intolerance. was eligible for special education services under IDEA. The student in the William W. case, however, had extensive medical problems beyond the pain disorder of migraines that impacted her learning. The issue in this case involved eligibility as a student with speech and language disabilities. Accommodations related to the student’s migraine headaches was not at issue.

See, also, E.E. v. Mifflinburg Area Sch. Dist., 14254/13-14KE (SEA Pa. Mar. 18, 2014) (a student with chronic fatigue syndrome and migraine headaches found eligible for special education and related services under IDEA as a student with an OHI failed to receive FAPE); Parents v. San Jose Unified Sch. Dist., OAH Case No. 2010050065 (SEA Cal. Sept. 29, 2010) (student with Systemic Juvenile Idiopathic Arthritis was eligible under IDEA as a student with an OHI); Irvine Unified Sch. Dist. v. Student, OAH Case No. 2005090857 (SEA Cal. Mar. 13, 2006) (student with Juvenile Dermatomyositis, an autoimmune inflammatory disorder, and rheumatoid arthritis, was eligible as a student with OHI under IDEA); Chippewa Valley Sch. Dist., SEH 1997-107a (SEA Mich. Oct. 28, 1997) (referencing the IDEA eligibility of a student


III. LEGAL ISSUES

A. ELIGIBILITY

All cases reviewed by the presenters involved students with primary pain disorders who

were eligible for services either under § 504 or under IDEA. As discussed above, students with

pain disorders almost unequivocally have a major life activity affected by such disorder,

qualifying them for services under § 504.

The presenters found only one case involving a school district’s failure to find a student

with a pain disorder eligible under either § 504 or IDEA.26 The presenters found multiple cases

and due process hearing decisions where students were already eligible for special education and

related services under IDEA prior to the proceedings,27 and three cases where the student’s

eligibility for special education and related services under IDEA was at issue.28

In Weixel v. Bd. of Educ. of N.Y.,29 the Second Circuit considered whether a student with

chronic fatigue syndrome and fibromyalgia was eligible under IDEA due to “disabling physical

ailments that limited her strength, vitality and alertness and made it impossible for her to attend

school.”30 Ms. Weixel, proceeding pro se, alleged that her daughter Rose became “chronically

sick with infected tonsils, swollen glands, muscle and joint pains, headaches, nausea, abdominal

pains, exhaustion, and intermittent fever” during her seventh grade year.31 Rose was unable to

attend school, and the principal and guidance counselor subsequently filed both negligence

with a severe form of migraine, variant headaches due to her inability to attend school and necessity of home-based instruction); but, see, N.H. v. Mathematics, Civics and Sciences Charter Sch., ODR No. 00252/09-10LS (SEA Pa. Dec. 2, 2009) (student with migraine headaches eligible for services under Section 504 only). 26 Weixel, 287 F.3d 138, 147 (2d Cir. 2002). 27 See, supra, note 25. 28 See, supra, note 26. 29 287 F.3d 138, 150 (2d Cir. 2002). 30 Id. at 150. 31 Id. at 142.


charges and began truancy proceedings against Ms. Weixel.32 Even after Rose’s pediatrician and

immunologist diagnosed her with chronic fatigue syndrome and fibromyalgia and documented

her inability to attend school, the principal and guidance counselor proceeded with complaints

against Ms. Weixel for child neglect.33 Ms. Weixel repeatedly requested disability

accommodations and home instruction for Rose, with no cooperation from the school.34 When

Rose was well enough to attend school, the guidance counselor refused to recognize her

completion of seventh grade through home schooling and refused to promote her to the eighth

grade.35 Ms. Weixel had to appeal several levels up to the central office administrators for Rose

to begin the eighth grade, which they approved; however, because Rose’s illness required her

absence on test day, the school refused to allow Rose to enroll in the Regents-level curriculum,

instead placing her in a lower-level curriculum.36 The guidance counselor instructed Rose that

she could only return to her school if she forfeited enrollment in the Regents-level coursework.37

Thereafter, Ms. Weixel filed formal complaints at the state level and in federal court, pro se,

seeking relief for the alleged discrimination against her daughter.38

The district court held in favor of the school district regarding Rose’s eligibility for

services under both § 504 and IDEA, but the Second Circuit reversed.39 The district court erred

in finding that, because Rose did well academically in homeschooling, she was not eligible for

services under either § 504 or IDEA.40 The Second Circuit held that it was “sufficient for Ms.

Weixel to demonstrate that Rose was substantially limited in a major life activity of central 32 Id. at 142-43. 33 Id. at 143. 34 Id. 35 Id. 36 Id. at 143-44. 37 Id. at 144. 38 Id. at 145. 39 Id. at 147, 149-50. 40 Id.


importance to her daily life because of her CFS,” and that she sufficiently alleged that CFS

limited her ability to walk, exert herself, and attend class at school.41

The Second Circuit further stated that the school district denied Rose the benefit of

making reasonable accommodations for Rose’s disability by failing to provide her any

meaningful public education for much of the seventh grade, and refusing to provide her with

home instruction necessitated by her disability.42 The circuit court additionally held that Ms.

Weixel submitted a legally adequate retaliation complaint under § 504 because the school district

knew Rose was disabled, knew she was seeking reasonable accommodations under § 504 (a

protected activity), and engaged in a host of retaliatory conduct against Ms. Weixel.43

Finally, the Second Circuit held that Ms. Weixel stated a claim for failure to identify

Rose as a student with an Other Health Impairment (OHI) under IDEA.44 Clearly Rose’s chronic

fatigue syndrome and fibromyalgia were disabling physical ailments that “limited her strength,

vitality and alertness.”45 The condition also made it impossible for Rose to attend school, which

was evidence that the health impairment adversely affected her educational performance.46 As

such, the circuit court treated the inability to attend school because of a disability as affecting

adverse educational performance. For these reasons, the circuit court remanded to the district

court to rule on the merits of the case.47

41 Id. at 147. 42 Id. at 148. 43 Id. at 148-49. 44 Id. at 149-50. 45 Id. at 150. 46 Id. 47 Id. at 151-52. See, also, Forest Hills Pub. Schs., 2011-782 at *23 (SEA Mich. Jan. 27, 2012) (finding that a school district should have found a student with chronic fatigue immune deficiency syndrome and fibromyalgia eligible under IDEA as a student with OHI because her “medical conditions and resulting restrictions are affecting her educational performance,” as “they limit the amount of time she is able to spend on her education”).


In S.P. v. Fairview Sch. Dist.,48 parents contended that a student with severe refractory

migraine headaches should have been found eligible under either § 504 or under IDEA as a

student with an OHI. Student began experiencing severe migraines at age four, and was 19 years

old at the time of the case.49 Student had 40 absences in Kindergarten, and progressed to 101

absences by the sixth grade.50 The parents often failed to provide written excuses for the

student,51 and by sixth grade requested that the student enroll in cyber education. Still, S.P.

continued to miss school and failed to complete the cyber education requirements.52 At this time,

the parents requested an IDEA evaluation.53 The school district found S.P. ineligible for special

education and related services under IDEA, but offered accommodations under § 504.54 S.P.

remained in cyber school, where he performed better and suffered fewer migraines.55

S.P. eventually returned to the public high school, where the parents refused a § 504

Plan.56 Still, the high school “had prepared and implemented a number of accommodations for

him,” including development of a schedule that enabled him to transition more slowly into

school and extended time to complete his work.57 Further, if he missed school due to a migraine,

a teacher sent work for his father to retrieve.58 He was allowed to use the resource room to lie

down or find a quieter environment, and the school offered individual mental health sessions

48 2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30, 2014). 49 Id. at *2, *4. 50 Id. at *4-5. 51 Id. at *5. 52 Id. at *6-8. 53 Id. at *8-15. 54 Id. at *14-15. 55 Id. at *15. 56 Id. at *16. 57 Id. at *17. 58 Id.


with a counselor from the mental health facility.59 Even with these permitted accommodations,

S.P. had excessive absences.60 He did not provide doctors’ notes, so the school notified him that

they would have to pursue truancy proceedings.61 The parents did not provide medical

documentation to support any medical reasons for S.P.’s absences.62 Even without medical

information, the school supported the student by providing him with missed assignments and

reassigning him to a resource room two days a week to make up work.63 It also permitted him to

take some courses through cyber school.64 Still, truancy persisted without medical explanation,

so the school instituted truancy proceedings.65

S.P. eventually moved back to taking courses exclusively through cyber schooling, but

even then he was not completing his coursework.66 The parents entered into a § 504 service

agreement with the school district, where S.P. would take cyber classes with flexibility for

completion without time restraints, and allowing waiver of mandated attendance with medical

documentation.67 S.P.’s treating physicians provided written excuses for attendance to the cyber

program, indicating that he continued to suffer from refractory migraine headaches but stating

“that the cyber school program ‘is tailored to him very well. He can take breaks when he has

extreme migraines which are frequent in his case,” and advocating for his continued enrollment

in the cyber program.68

59 Id. 60 Id. at *18. 61 Id. 62 Id. 63 Id. at *19. 64 Id. at *24. 65 Id. at *24-26. 66 Id. at *27-28. 67 Id. at *28. 68 Id. at *28-29.


The parents filed for a due process hearing, where they presented a special education

consultant who testified that “the school district erred in failing to identify S.P. as disabled under

the ‘Other Health Impaired’ category, because the migraines caused poor school attendance.”69

The hearing officer found in favor of the school district on all counts, holding that the school did

not err by finding S.P. ineligible for services under IDEA, and holding that the school provided

FAPE under § 504.70 The parents appealed to the district court.

On the IDEA eligibility contention, the parents alleged that, because the migraines caused

his failure to attend school, the disability was adversely affecting his educational performance. In

this case, however, the court declined to find that S.P. was eligible under IDEA because the

parents did not provide persuasive evidence on the issue upon request by the court.71

In Brado v. Weast, a Maryland district court similarly held that a student with Postural

Orthostatic Tachycardia Syndrome, or POTS, which caused her to experience severe pain

throughout her entire body from a toddler to an adult, and who was otherwise served under §

504, was not eligible for services under IDEA as a student with an OHI.72 The District of

Maryland district court upheld the hearing officer’s determination of ineligibility because no

medical or educational experts had testified that she required altered instruction, such as

hospital/homebound instruction, to make progress in the regular curriculum.73 In other words,

had her pain disorder affected her ability to attend school and required her to receive her

education through homebound instruction (or virtual instruction), she would have been eligible 69 Id. at *30. 70 Id. at *34. 71 Id. at *49. 72 2010 U.S. Dist. LEXIS 5932 (D. Md. Jan. 26, 2010). 73 Id. at *12-13. Interestingly, the same school district had previously found the student eligible under IDEA, but reversed its decision when it conducted a full and complete evaluation, which included discussions with the student’s treating physicians. The court held that the “record is clear as to her need for frequent breaks, adjusted workloads, alternative test scheduling, and personalized instruction," which was accomplished under her § 504 plan. Id. at *12. The court found that “[b]oth the medical expert testimony as well as the educator testimony . . . indicate that [the student] Molly requires only accommodations . . . [not] special education.” Id. Further, “no medical expert [other than her primary care physician] suggests that Molly required [hospital homebound teaching HHT].” Id. at 13.


to receive special education and related services under the OHI category in IDEA. And while

the court acknowledged the severity of her disorder, it deferred to the medical professionals on

her ability to attend school, and it referenced her successful academic performance as the reason

she was ineligible under IDEA.

In Boston v. Bureau of Special Educ. Appeals,74 a Massachusetts district court considered

the question of whether a student with Crohn’s disease that limited his ability to attend school,

thereby limiting his ability to progress from grade to grade, “comes within the definition of a

child with a disability under IDEA.” Citing Weixel, the court held that a student whose severe

Crohn’s disease prevented him from attending school, which affected his ability to progress from

grade to grade, “comes within the definition of a child with a disability under IDEA.”75 The case

turned on whether the parents failed to exhaust their administrative remedies by not filing for a

due process hearing, so the court did not decide the issue of IDEA eligibility. Instead, it

instructed the parents that they must exhaust the remedies required under IDEA.76

B. TRUANCY

The reviewed cases and due process hearing decisions overwhelmingly involved some

form of truancy or excessive absences by students with pain disorders.77 When these absences

were causally linked to the student’s pain disorder, as documented by a practitioner, then courts

74 2008 U.S. Dist. LEXIS 39992, at *18 (D. Mass. Apr. 30, 2008). 75 Id. at *18. But, see, J.C. v. Cumberland Valley Sch. Dist., ODR No. 14638-1314KE (SEA Pa. Feb. 3, 2015) (agreeing with school district’s determination that student with Crohn’s disease was not eligible under IDEA as a student with an OHI because his inability to attend school was not adequately proven to be related to his disability; student was eligible for services under § 504 only). 76 Id. at *20-22. 77 See S.P. v. Fairview Sch. Dist., 2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30, 2014); Brado v. Weast, 2010 U.S. Dist. LEXIS 5932 (D. Md. Jan. 26, 2010); Boston v. Bureau of Special Educ. Appeals, 2008 U.S. Dist. LEXIS 39992, at *18 (D. Mass. Apr. 30, 2008); Weixel v. Bd. of Educ. of N.Y., 287 F.3d 138, 150 (2d Cir. 2002); see, also, J.C. v. Cumberland Valley Sch. Dist., ODR No. 14638-1314KE (SEA Pa. Feb. 3, 2015); E.E. v. Mifflinburg Area Sch. Dist., No. 14254/13-14KE (SEA Pa. Mar. 18, 2014); Forest Hills Pub. Schs., 2011-782 at *23 (SEA Mich. Jan. 27, 2012); N.H. v. Mathematics, Civics and Sciences Charter Sch., ODR No. 00252/09-10LS (SEA Pa. Dec. 2, 2009); Irvine Unified Sch. Dist. v. Student, OAH No. N 2005090857 (SEA Cal. Mar. 13, 2006).


were more likely to find, as discussed above, that students were eligible under IDEA as a student

with an OHI. A court also was more likely to find retaliation under § 504 when school districts

instituted truancy proceedings in lieu of working to accommodate and educate a student whose

pain disorder caused the absences.78 When, however, a court or hearing officer did not have

evidence that a student’s absences were caused by his or her pain disorder, then the court would

find in favor of a school district on any § 504 retaliation claims.79

C. HOMEBOUND SERVICES OR CYBER INSTRUCTION

Another recurring fact in the cases and surveyed due process hearing decisions involving

students with pain disorders involved provision of Homebound instruction80 or provision of

education through cyber education.81 When a student is too sick to attend school on a day-to-day

basis, and no supplemental aids or services could make attendance at school a possibility, the

homebound instruction82 or instruction through virtual schooling may be appropriate. Indeed, in

78 See, e.g., Weixel, 287 F.3d 138, 150 (2d Cir. 2002). 79 See, e.g., S.P., 2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30, 2014), discussed supra; see, also, N.H. v. Mathematics, Civics and Sciences Charter Sch., ODR No. 00252/09-10LS (SEA Pa. Dec. 2, 2009) (finding that a student’s excessive absences were not due to her migraine headaches; the student rarely saw a doctor for her migraine headaches, and all evaluators stated that she could attend school even when she had a migraine; when at school, she never sought a school nurse to obtain medication or medical help for a migraine). 80 See, e.g., Brado v. Weast, 2010 U.S. Dist. LEXIS 5932 (D. Md. Jan. 26, 2010); Weixel, 287 F.3d 138, 150 (2d Cir. 2002); E.E. v. Mifflinburg Area Sch. Dist., No. 14254/13-14KE (SEA Pa. Mar. 18, 2014); Forest Hills Pub. Schs., 2011-782 at *23 (SEA Mich. Jan. 27, 2012). 81 See S.P. v. Fairview Sch. Dist., 2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30, 2014). 82 State law often governs the requirements for provision of homebound instruction or services. For instance, Ohio law, O.R.C. § 3323.12, provides

The board of education of a school district shall provide home instruction for children with disabilities who are at least three years of age and less than twenty-two years of age and who are unable to attend school, even with the help of special transportation. The board may arrange for the provision of home instruction for a child by a cooperative agreement or contract with a county DD board or other educational agency. For the purposes of determining formula ADM under section 3317.03 of the Revised Code, five hours of home instruction shall be equivalent to attendance for five school days.

For in depth review of the law of homebound services, see Hans P. Graff, Homebound Services under the IDEA and § 504: An Overview of Legal Issues (LRP 2d ed 2013).


almost every case and due process hearing decision surveyed, presenters found that students with

pain disorders received homebound or virtual schooling for at least part of their educational

program. Importantly, however, provision of homebound or virtual education invokes both §

504’s and the IDEA’s “least restrictive environment” (LRE) mandate. IDEA provides that

to the maximum extent appropriate, children with disabilities, including children in public or private institutions or other care facilities, are educated with children who are not disabled, and special classes, separate schooling, or other removal of children with disabilities from the regular educational environment occurs only when the nature or severity of the disability of a child is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.83

Section 504’s “least restrictive environment,” or LRE, obligations mirror the IDEA.84 The S.P.

court held that, when a student “cannot physically be educated with his peers in a regular

classroom or participate in a school program [because he] cannot attend school,” then

homebound or virtual/cyber instruction is the least restrictive environment for that student.85

When, however, a student is able to attend school with appropriate accommodations, such as

allowing frequent breaks, adjusting workloads, giving alternative test scheduling, and

personalizing instruction, then homebound instruction is not the least restrictive environment

and is not appropriate.86 School districts may also accommodate students with pain disorders by

shortening their school days,87 enabling students to use assistive technology to complete

assignments and receive instruction,88 chunking assignments and extending deadlines,89 and

providing tutors for additional instruction.90

83 20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2). 84 S.P., 2014 U.S. Dist. LEXIS 137567 at *41. 85 Id. at *42-43. 86 Brado v. Weast, 2010 U.S. Dist. LEXIS 5932 at *12-13 (D. Md. Jan. 26, 2010). 87 See, e.g., Hudson Sch. Dist., 58 IDELR 22 (OCR Sept. 30, 2011) (an appropriate accommodation made for a student who experienced chronic migraines was a shortened school day). 88 See, e.g., E.E. v. Mifflinburg Area Sch. Dist., No. 14254/13-14KE (SEA Pa. Mar. 18, 2014); Parents v. San Jose Unified Sch. Dist., OAH Case No. 2010050065 (SEA Cal. Sept. 29, 2010).


IV. CONCLUSIONS AND RECOMMENDATIONS FOR PRACTICE

Considering both the statutory and case law as applied to students with chronic pain

disorders, there are few substantive legal conclusions that can be made at this time: However,

those that are clear enough to advance are stated below. This section discusses concerns that

accompany these conclusions, along with recommendations that may be useful in assisting

students with pain disorders, their families, and their schools. These areas fall generally under §

504 eligibility and IDEA eligibility.

Aside from the legal considerations, the literature concerning pediatric chronic pain

indicates that there are strong associations between chronic pain and mental health, mood issues,

quality of life concerns, and coping behaviors. All of these domains are potential threats to the

well-being of a student with chronic pain, and may rise to a level of legal significance within the

school setting.91

A. SECTION 504 ELIGIBILITY CONCLUSIONS

Section 504 eligibility is likely to be established and satisfied when a student suffers from

a pain disorder. This is clear both in the language of the act, as well as in the refinements issued

in subsequent court opinions. If the LEA denies eligibility, however, then it is probable that the

symptoms of the pain disorder do not rise to the level at which accommodations are required for

the student to function in school. Those who work in the school setting should observe caution

when considering students with these diagnoses because there exist concerns that relate

specifically to the diagnosis of chronic pain (and related disorders) that clearly place these

disorders in a category requiring special attention.

Concerns regarding § 504 eligibility.

Most importantly, chronic pain disorders are often difficult to observe and detect from a

symptomatic perspective. In other words, they may be easy to miss, or to dismiss depending on

the level of urgency perceived by the observer. The reasons for this are both simple and complex.

89 See, e.g., E.E. v. Mifflinburg Area Sch. Dist., supra n. 87. 90 See, e.g., Hudson Sch. Dist., 58 IDELR 22 (OCR Sept. 30, 2011). 91 See, e.g., Melanie Noel et al., Chronic Pain in Adolescence and Internalizing Mental Health Disorders: A Nationally Representative Study, 157 J. PAIN, 1333 (2016).


The most common symptoms displayed by pain disorders are “non-specific” in that they could

appear with a variety of physical problems.92 For example, abdominal pain or headache—both

very common symptoms in many chronic pain disorders—may lead an observer to believe that

the individual may be experiencing the onset of a common cold or virus, or is perhaps reacting to

some other kind of normal stress associated with school demands, such as test anxiety. To the

student with chronic pain, however, the effect is one that could be debilitating because of its

continual presence and changing intensity. The natural outcome in the school setting, therefore,

might lead an administrator, teacher, or even the school nurse, to assume that the symptom does

not rise to the “level of concern” to which any action would need to be taken, when in fact, the

student is in real physical distress. Understandably, the highly subjective nature of this type of

visual or outward assessment is often uncomfortable for those who work in the school setting,

the resulting effect often reflecting a decision to maintain the status quo until more definitive

signs of distress appear. One study that looked at pediatric pain and considered the attitudes of

teachers toward these students indicates that there are significant limitations in teachers’ abilities

to recognize and simultaneously address chronic pain in the classroom.93

Complexity enters into the equation when considering the child’s age, maturity level, and

ability to self-advocate. The literature shows that while younger children may have difficulty

verbalizing their pain, older children will often try to hide their pain in order to appear normal.

This phenomenon demonstrated by older children is often closely associated with anxiety, a very

common comorbid diagnosis that can accompany chronic pain, and—it is hypothesized—caused

by chronic pain.94 Further complicating the issue is that anxiety is displayed in a myriad of

different responses between individuals, some physical and some behavioral, and all intertwined

with the pain issues. The problem of the observer clearly discerning the pain situation of another

92 See, e.g., Nicola L. Dennis, et al, A Giant Mess: Making Sense of Complexity in the Accounts of People with Fibromyalgia, 18 BRITISH J. OF HEALTH PSYCH. 763 (2013). 93 Deirdre E. Logan, Robyn Lewis Claar, & Lisa Scharff, Social Desirability Response Bias and Self-report of Psychological Distress in Pediatric Chronic Pain Patients, 136 J. PAIN 366 (2007) (study suggested that many school personnel, due to lack of training and education about the nature of chronic pain, hold a dualistic view of pain dictating that pain must be either physically or psychologically rooted in the individual, but that it cannot be both). 94 Id.


can become clouded and even more difficult to navigate as a result of frequent accompanying

anxiety.95

With the difficulties stated above, the possibility of adults in schools overlooking or

under-reacting to chronic pain when it is experienced by students in the K-12 setting is increased

and possibly commonplace. Simply put, how does one measure the “level” at which a § 504 is

required by law when the indicators are not clear by virtue of the difficulty of detecting

symptoms experienced versus those that are overtly demonstrated? Aside from compelling

academic and moral interests, schools must assess the legal implications of not acting (in the

form of identifying, recognizing and accommodating) when a student has a “physical or mental

impairment” that “substantially limits one or more major life activities.”96

B. IDEA ELIGIBILITY

IDEA eligibility—specifically under the OHI category—is more likely to be satisfied in

the case of a chronic pain disorder when: (a) The student has a medical professional providing

documentation as to the patient’s condition and related absences; and, (b) it has been established

that the LRE is not the school setting, but that of cyber-school or home-school.

Concerns regarding IDEA eligibility.

While understandable that professional medical documentation is considered important as

evidence of a student’s problem with chronic pain, there is another practical factor to consider:

Chronic pain is typically cyclical in nature. This means that for the student to visit the doctor for

every flare-up of symptoms may not be medically necessary—nor logical—especially when

symptoms can be treated successfully at home through rest or medication. Though the medical

professionals may be well aware of the chronic pain problem, they may decline to issue a note or

an excuse unless they have actually seen the patient within a short time span. The requirement

that each and every absence must be accounted for by a doctor’s note can place a significant

burden on the family in terms of finances, energy, and time.

Additionally, some chronic pain conditions take years to diagnose. Indeed, some

perplexing cases will never truly be diagnosed, but will fall into the “medically unexplained”

95 See e.g., Tim Vevoort, et al., Severity of Pediatric Pain in Relation to School-Related Functioning and Teacher Support: An Epidemiological Study Among School-aged Children and Adolescents, 155 J. PAIN 1118 (2014). 96 29 U.S.C. §705(20)(B); 42 U.S.C. §12102(1).


category.97 In theory, students without a diagnosis but who experience symptoms of chronic

pain would still be legally supported through both § 504 and the IDEA; however, it is unknown

whether the schools or the courts would respond the same way without a firm, or even tentative,

diagnosis. The fact that a diagnosis is not legally required in either § 504 or the IDEA is well

established; however, that factor does not appear to have been significantly tested at the court

level. Under the IDEA, the category of OHI states that the child suffers from “limited strength,

vitality, or alertness, including a heightened alertness to environmental stimuli, that results in

limited alertness with respect to the educational environment, that

(i) is due to chronic or acute health problems such as asthma, attention deficit disorder or

attention deficit hyperactivity disorder, diabetes, epilepsy, a heart condition, hemophilia,

lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette

syndrome; and

(ii) adversely affects a child’s educational performance.” 98

The second prong seems to be the area over which school administrators, and subsequently court

officials, disagree. In the pediatric pain literature, however, a plethora of illustrations are

documented as to how a child’s educational performance can be adversely affected by chronic

pain. Memory, for instance, is vulnerable to pain, and yet it is essential to learning and for

providing assessments of learning.99 Concentration and ability to focus are compromised due to

the effect of limited cognitive functioning, or “mental fog”.100 The ramifications of pain on

cognitive tasks—the work of a student that requires attention, memory, reasoning, and decision

making—could therefore be devastating if the pain were to prohibit the student from attending to

lectures, presentations, or work and activities related to particular content and related

97 See Bryan D Carter & Brooke M Threlkeld, Psychosocial Perspectives in the Treatment of Pediatric Chronic Pain, 10 J. Pediatric Rheumatology, 1 (2012). 98 34 C.F.R. § 300.8(c)(9). 99 See Bruce D Dick & Rebecca Pillai Riddell, Cognitive and School Functioning in Children and Adolescents in Chronic Pain: A Critical Review, 15 J. Pain Res. Mngt. 238 (2010). 100 Id.


assignments in school.101In addition to the factors already mentioned, other significant effects of

chronic pain seen in pediatric populations include the following:

• Sleep disturbances resulting in fatigue and poor overall functioning102

• Pain coping behaviors, including catastrophizing and self-isolation.103

• Anxiety104

• Depression105

• Reduced school functioning (problems in academics, attendance, self-confidence)106

Finally, a combination of these issues can result in something identified in the literature as the

“downward spiral” in which students with chronic pain fall into a repeating pattern that involves

three steps: (1) Missed school due to pain; (2) Returning to school and facing difficulties

catching up on missed assignments and understanding; (3) Leading to school avoidance resulting

from anxiety and feelings of helplessness.107

101 See Chris Eccleston & Geert Crombez, Pain Demands Attention: A Cognitive-Affective Model of the Interruptive Function of Pain, 125 PSYCH. BULLETIN 355 (1999). 102 See, e.g., Kristina Puzino & Jodi A. Mindell, Sleep Disturbances in Pediatric Chronic Pain Patients: The Role of Cognitions, 1 TRANSLATIONAL ISSUES IN PSYCH. SCIENCE 6 (2015). 103 See, e.g., Lynn S. Walker, et al., A Typology of Pain Coping Strategies in Pediatric Patients with Chronic Abdominal Pain, 137 J. PAIN 266 (2008). 104 See, e.g., Sushmita Kashikar-Zuck, et al., Anxiety, Mood, and Behavioral Disorders among Pediatric Patients with Juvenile Fibromyalgia Syndrome, 24 J. CLINICAL J. OF PAIN 620 (2008). 105 See, e.g. Sara King, et al., The Epidemiology of Chronic Pain in Children and Adolescents Revisited: A Systematic Review, J. PAIN 2729 (2011). 106 See Ayala Y. Gorodzinsky, et al., School Functioning and Chronic Pain: A Review of Methods and Measures, 36 J. OF PEDIATRIC PSYCH., 991 (2011) (“In short, school functioning includes any social, cognitive, or emotional aspect of behavior that occurs directly within the school setting or indirectly impacts behavior and mental processing in the school setting. Without thoroughly understanding all the ways in which pain impacts this critical domain of daily life, it is as though a large piece of the puzzle is missing, making it impossible to completely comprehend what it means for a child or teen to live with chronic pain,” id. at 992). 107 “The developmental and financial costs of school impairment are extensive; youth disabled in school by physical and emotional symptoms suffer immediate educational and social difficulties, use more healthcare, require costly special education services, and assume a higher


C. RECOMMENDATIONS FOR PRACTICE

Specifically to the legal requirements of § 504 and the IDEA, the most important issue

appears to be the ability for those in the school who work with the student to have the awareness

and resources to detect, identify and respond appropriately to students with chronic pain. School

administrators need to be aware of the signs of chronic pain, especially when one or more non-

specific symptoms are reported on a regular basis over a period of time, and particularly if

accompanied by high absenteeism. If a diagnosis has been made, then there is presumably a

known disorder and an effort should be made within the school to educate those who are

responsible to the student about the condition, including whether the symptoms present typically

in a cyclical nature. A meeting with the family should occur as early as possible to avoid the

“downward spiral” pattern. Issues that should be deliberately addressed include how absences

will be documented (e.g., must a note from the doctor be submitted for every absence?); whether

and how the school may reasonably accommodate the students when symptoms arise; what

might be expected in terms of future flare-ups or periods of remission of symptoms; and how to

best communicate between home and school. All teachers working with the student should be

made aware of the student’s needs or potential needs, such as, for example—a place made

available to the student to lie down, an elevator pass to avoid having to climb stairs, or an

anytime pass to use the restroom.

The degree to which the student’s educational performance is adversely affected can be

monitored while keeping the list of consequences of chronic pain in mind. One idea would be to

keep a checklist for the student that could help to red flag certain issues before they lead to a

downward spiral. For instance, if a student is diagnosed with a chronic pain disorder such as

juvenile fibromyalgia, juvenile rheumatoid arthritis, or Lyme disease, then a list of symptoms

may be created that are currently present along with those that may yet manifest so that those

persons who work with the student could recognize and help respond to them should they appear.

As already indicated, most symptoms for chronic pain are non-specific, so the lists will be

risk of long term maladjustment. Left unaddressed, school impairment can worsen, with extreme cases resulting in full time homebound instruction or school failure. Caught in this downward spiral adolescents may miss out on developmentally normative academic and social experiences central to healthy adjustment,” 136 J. PAIN 366, 407.


similar from one to another, varying between items such as abdominal pain, lethargy and

headaches. On the other hand, allowing for specificity is also important. For example, if there are

headaches, what kind of headaches is the student reporting? Where is the pain centered?

Descriptors are helpful, especially for helping to confirm diagnoses and establishing patterns and

possible triggers. Eventually, this documentation may prove helpful in establishing the correct

LRE should there be an IEP involved.

Regarding the LRE, the spectrum of school venues should be considered. The traditional

school attendance platform functions well for those students who are high school-functioning.

The next possibility, allowing for more flexibility, would be a combination of tutoring and

abbreviated school attendance, with the possibly additional option of online or cyber-school

opportunities. Home-bound schooling or home-schooling, along with cyber-school, represent a

step further along the spectrum for those students who perform lower at school-functioning.

Finally, in some cases, there are those schooling arrangements for individuals who must be

hospitalized on a frequent basis.

The need for consistent and meaningful communication between the school and the

family is always primary, regardless of the venue or combination of venues. School

administrators must understand that following through with regard to students with chronic pain

is key to the student’s success and to the school’s record of diligence in complying with the legal

requirements of both § 504 and the IDEA.

k-12 students with pain disorders: provision of services ...€¦ · a. section 504 of the...

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