3. Part A: Legal Issues–Educational
Special education laws and regulations are meant to protect students with disabilities. These laws and regulations ensure that students receive the services and assistance that may be necessary to make meaningful progress in their education program. In Connecticut, the special education system is based on the federal special education law, Individuals with Disabilities Education Improvement Act (IDEA 2004) and its implementing regulations, in combination with the state’s special education law, Connecticut General Statutes Section 10-76a to 10-76h, inclusive, and the implementing regulations.
Special education is provided to students with an identified disability who need specially designed instruction to meet their unique needs and to enable students to access the general curriculum of the school district. Students who are eligible for special education services are entitled by federal law to receive a free appropriate public education (FAPE). FAPE ensures that all students with disabilities receive an appropriate public education at no cost to the family. FAPE differs from student to student because each has unique needs. Students who receive special education services receive services that are required in order for them to benefit from special education. These services are called “related services.” Related services means “transportation and such developmental, corrective, and other supportive services as are required to assist a child with a disability to benefit from special education, and includes speech-language pathology and audiology services, interpreting services, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, early identification and assessment of disabilities in children, counseling services, including rehabilitation counseling, orientation and mobility services, and medical services for diagnostic or evaluation purposes. Related services also include school health services and school nurse services, social work services in schools, and parent counseling and training” (34 CFR § 300.34[a]).
Individuals with Disabilities Education Act of 2004
Under the the Individuals with Disabilities Education Act of 2004 (IDEA), a child with a “disability” means: 1) a child evaluated in accordance with the IDEA as having one or more of the recognized disability categories; 2) the disability adversely affects educational performance; and 3) because of the disability and the adverse impact, the child needs special education and related services. The IDEA 2004 disability categories are as follows:
- emotional disturbance
- hearing impairment
- intellectual disability (mental retardation)
- multiple disabilities
- orthopedic impairment
- other health impairment (limited strength, vitality or alertness due to chronic or acute health problems such as lead poisoning, asthma, attention deficit disorder, diabetes, a heart condition, hemophilia, leukemia, nephritis, rheumatic fever, sickle cell anemia and Tourette syndrome)
- specific learning disability
- speech or language impairment
- traumatic brain injury
- visual impairment including blindness
- developmental delay (3- through 5-year-old children only).
In Connecticut, a school district is also required to provide identification, referral and evaluation services for students who may be gifted and/or talented. A district is not required but has the option of providing services to students who have been identified as being gifted and/or talented (CSDE, A Parent’s Guide to Special Education in Connecticut, 2007, 2).
Connecticut’s State Board of Education (SBE) believes that a unified and coordinated continuum of educational opportunities and supports, designed to address individual needs, serves and benefits all students. The SBE also supports the principle that Connecticut’s Common Core of Learning defines common goals for all students, including those with disabilities (CSDE, Position Statement on the Education of Students with Disabilities, 2001). The special education laws and regulations that support this principle are well intended, however, complex and detailed. The Connecticut State Department of Education (CSDE) Bureau of Special Education provides valuable resources and guidance documents with detailed information and explanation regarding special education laws, regulations, the special education eligibility process, services for students and other information on its Web site.
The CSDE’s Special Education Resources Table below lists publications specifically related to the processes and procedures for attaining special education services for students with disabilities.
|Special Education Publications||Best Practice Resources; Eligibility Documents; Guidance Documents/Topic Briefs; Parent/Family Resources; and Secondary Transition Resources.|
|The State Board of Education’s Position Statement On the Education of Students with Disabilities (2001)||Position Statement On the Education of Students with Disabilities|
|CSDE’s Division of Legal and Governmental Affairs Law: Individuals with Disabilities Education Act (IDEA)||Individuals with Disabilities Education Act (IDEA)|
|A Parent’s Guide to Special Education in Connecticut (2007)||Provides information for parents, guardians and other family members about laws, regulations, and policies affecting special education programs and services.|
|Before, During & After the PPT Meeting: Preparing for the PPT Meeting & Development of The Individualized Education Program (2008)||Planning and Placement Team (PPT) Checklist|
|PPT 101: Understanding the Basics of the Planning and Placement Team Meeting||Provides information on the process and procedure for referral and eligibility for special education; Individualized Education Programs; PPT; and parent’s role in the PPT process.|
|Making the PPT Process More Effective for You and Your Child||Provides information on the PPT process.|
|IEP Manuals and Forms (2010)||CSDE’s guidance to school districts in Connecticut to assist in using the IEP forms.|
Writing Standards-based IEP Goals and Objectives
Guidelines for Identifying Children with Learning Disabilities (2010)
|This multimedia presentation is designed to provide a tool and a process for helping Connecticut educators develop standards-based IEPs. This document provides a comprehensive description of the changes in IDEA 2004 regarding the identification and eligibility determination of children with a specific learning disability.|
Section 504 of the Rehabilitation Act of 1973
Section 504 is a federal law designed to protect the rights of individuals with disabilities in programs and activities that receive federal financial assistance from the United States Department of Education (USDE). Section 504 provides in part that “No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance . . .” Recipients of this federal financial assistance include public school districts, institutions of higher education, and other state and local education agencies. The regulations implementing Section 504 in the context of educational institutions appear at 34 CFR Part 104.
The Section 504 regulations require a school district to provide a “free appropriate public education” (FAPE) to each qualified student with a disability who is in the school district’s jurisdiction, regardless of the nature or severity of the disability. Under Section 504, FAPE consists of the provision of regular or special education and related aids and services designed to meet the student’s individual educational needs as adequately as the needs of nondisabled students are met (OCR, 2011).
Who Is Protected under Section 504?
Section 504 covers qualified students with disabilities who attend schools receiving federal financial assistance. To be protected under Section 504, a student must be determined to: (1) have a physical or mental impairment that substantially limits one or more major life activities; or (2) have a record of such an impairment; or (3) be regarded as having such an impairment. Section 504 requires that school districts provide a free appropriate public education (FAPE) to qualified students in their jurisdictions who have a physical or mental impairment that substantially limits one or more major life activities.
Major life activities, as defined in the Section 504 regulations at 34 CFR 104.3(j)(2)(ii), include functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This list is not exhaustive. Other functions can be major life activities for purposes of Section 504. In the Amendments Act, Congress provided additional examples of general activities that are major life activities, including eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. Congress also provided a nonexhaustive list of examples of “major bodily functions” that are major life activities, such as the functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. The Section 504 regulatory provision, though not as comprehensive as the Amendments Act, is still valid—the Section 504 regulatory provision’s list of examples of major life activities is not exclusive, and an activity or function not specifically listed in the Section 504 regulatory provision can nonetheless be a major life activity.
Physical or Mental Impairment that Substantially Limits a Major Life Activity
The determination of whether a student has a physical or mental impairment that substantially limits a major life activity must be made based on an individual inquiry. The Section 504 regulatory provision at 34 CFR 104.3(j)(2)(i) defines a physical or mental impairment as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The regulatory provision does not set forth an exhaustive list of specific diseases and conditions that may constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of such a list.
The CSDE’s Section 504 Resources Table below lists publications specifically related to the processes and procedures for attaining services for students with disabilties and special health care needs.
|CSDE’s Circular Letter C-13, Series 2008-09 Section 504 of the Rehabilitation Act of 1973: Procedural Safeguards Reissue of CIRCULAR LETTER C-9, Series 2000-2001||Section 504 of the Rehabilitation Act of 1973: Procedural Safeguards|
|Protecting Students With Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities||This document is a revised version of a document originally developed by the Chicago Office of the Office for Civil Rights (OCR) in the U.S. Department of Education (ED) to clarify the requirements of Section 504 of the Rehabilitation Act of 1973, as amended (Section 504) in the area of public elementary and secondary education. The primary purpose of these revisions is to incorporate information about the Americans with Disabilities Act Amendments Act of 2008 (Amendments Act), effective January 1, 2009, which amended the Americans with Disabilities Act of 1990 (ADA) and included a conforming amendment to the Rehabilitation Act of 1973 that affects the meaning of disability in Section 504.|
|CSDE’s Division of Legal and Governmental Affairs Law: Section 504||Section 504 Law|
|CSDE’s Accommodating Special Dietary Needs in School Nutrition Programs (2015)||Contains information on providing meals for children with special dietary needs, based on federal laws, U.S. Department of Agriculture regulations and Connecticut laws and regulations.|
|School Readiness Technical Assistance Alert (1999) Number TA/SR # 99-02: Serving 3-, 4-, and 5-year-old Children with Disabilities||Section 504 and School Readiness Programs|
|CSDE’s Guidelines for Managing Life-Threatening Food Allergies in Connecticut Schools||Allergy management in schools|
|CSDE’s Guidelines for Blood Glucose Self-Monitoring in School||Diabetes management|
Individualized Health Care Plans
Important note: Students with special health care needs on the milder end of the spectrum and who do not meet the eligibility requirements for Section 504 or special education, may be provided with an IHCP indicating accommodations or services based in regular education.
Oftentimes, students with special health care needs that are eligible for Section 504 or special education may have their individualized health care plan (IHCP) incorporated into the Section 504 plan or the individualized educational plan (IEP). However, some students have special health care needs on the milder end of the spectrum and do not meet the eligibility requirements for Section 504 or special education. As appropriate, these students may be provided with an IHCP, indicating accommodations or services based in regular education.
An individualized health care plan is a detailed and orderly program of action designed to monitor, prevent, reduce or eliminate identified health problems in order to maintain or improve a student’s health status and level of wellness and to promote his or her learning and positive coping. The process of planning requires a team approach and includes the establishment of care priorities, a clear understanding of student specific goals, prescription of appropriate interventions, and delineation of measurements for goal achievement (National Association of School Nurses, 2008).
Health care plans identify solutions for diagnosed health problems (actual or potential); communicate the student’s specific health needs, and the prescribed nursing and collaborative interventions for directing and evaluating the care given; and provide a mechanism for demonstrating accountability.
The IHCP is developed following the nursing process:
- assessment (includes subjective and objective date);
- nursing diagnoses;
- planning (includes student goals and expected outcomes);
- implementation (interventions employed); and
Demographic data should include:
- date of birth;
- contact information;
- primary care provider;
- preferred hospital;
- medical diagnoses;
- medications; and
- treatments.The nursing process is a goal-oriented method of caring that provides a framework to nursing care. It involves five major steps:
- Assessment (what data is collected?)
- Nursing Diagnosis (what is the problem?)
- Planning (how to manage the problem)
- Implementation (putting plan into action)
- Evaluation (did the plan work?)
While all registered nurses are taught how to write health care plans in their basic education, health care plans written for schools must take both health and educational needs into consideration during development. Registered school nurses who have had no pediatric experience and those who are new to the educational arena, may need assistance from an experienced school nurse or school nurse supervisor to appropriately perform this activity.
Only the registered school nurse can draft and finalize an individualized health care plan for a student. Other members of the education team, the family, licensed practical nurses (LPNs), and the student’s health care providers may contribute to the development of the plan, but the registered school nurse retains overall responsibility for its production and implementation.
The Role of the School Nurse (Registered Nurse) in Special Education and Section 504
Administrators must ensure that professional registered school nurses are included in the IEP and Section 504 team processes in order to appropriately address the health-related barriers to learning for identified students.
The registered professional school nurse leads oversight of school health policies and programs in the school community. As such, school nurses actively collaborate with others to build student and family capacity for adaptation, self-management, self-advocacy and learning. Coordinating the linkage between the medical home, family and school is an important aspect of the role of the school nurse. The school nurse has health expertise that is essential to school educational teams, such as the special education team, the individualized educational plan (IEP) team and the Section 504 team so that health-related barriers to learning can be reduced for each student (Wolfe, 2012).
In determining the level of health services necessary for students to adequately access their education, it is imperative that the school nurse is included as a member of the problem solving team. School nurses provide valuable input about the needs of students with health issues who have difficulties learning. They have the expertise to identify and recommend appropriate health accommodations or interventions to allow students full access to their education. Important information that may affect learning is often identified from the health history obtained by the registered school nurse. Best practice says that the nurse should be involved in the Response to Intervention (RTI)/Scientific Research-Based Intervention (SRBI) process to identify and support health needs and if significant health concerns are identified leading to an initial special education evaluation, the nurse must be part of the multidisciplinary team (CDE, 2008).
School nurses who engage in these multidisciplinary teams must also acquire the essential knowledge regarding the processes and protocol of special education team meetings, IEP meetings and Section 504 meetings. As the team’s medical expert, the school nurse must be cognizant of the legal implications of their medical advice and suggested service for students. While priority is given to what is in the best interest of the student, school nurses must also consider the limitations of their local or regional boards of education.
Healthy children are successful learners. The registered school nurse has a multifaceted role within the school setting, one that supports the physical, mental, emotional, and social health of students and their success in the learning process. It is the breadth of nursing activities contained within the role of the school nurse and the unique non-medical setting that differentiates school nursing from other nursing specialties (NASN, 2010).
Confidentiality: Family Educational Rights to Privacy Act
The Family Educational Rights to Privacy Act (FERPA) is a federal law that protects the privacy of students’ “education records” (20 U.S.C. § 1232g; 34 CFR Part 99). FERPA applies to educational agencies and institutions that receive funds under any program administered by the U.S. Department of Education (USDOE). This includes virtually all public schools and school districts and most private and public postsecondary institutions, including medical and other professional schools. If an educational agency or institution receives funds under one or more of these programs, FERPA applies to the recipient as a whole, including each of its components, such as a department within a university (34 CFR § 99.1(d)) (FERPA, 2008).
Private and religious schools at the elementary and secondary level generally do not receive funds from the USDOE and are, therefore, not subject to FERPA. Note that a private school is not made subject to FERPA just because its students and teachers receive services from a local school district or state educational agency that receives funds from the USDOE. The school itself must receive funds from a program administered by the USDOE to be subject to FERPA. For example, if a school district places a student with a disability in a private school that is acting on behalf of the school district with regard to providing services to that student, the records of that student are subject to FERPA, but not the records of the other students in the private school. In such cases, the school district remains responsible for complying with FERPA with respect to the education records of the student placed at the private school (FERPA, 2008).
An educational agency or institution subject to FERPA may not have a policy or practice of disclosing the education records of students, or personally identifiable information from education records, without a parent or eligible student’s written consent (34 CFR § 99.30). FERPA contains several exceptions to this general consent rule (34 CFR § 99.31). An “eligible student” is a student who is at least 18 years of age or who attends a postsecondary institution at any age (34 CFR §§ 99.3 and 99.5[a]). Under FERPA, parents and eligible students have the right to inspect and review the student’s education records and to seek to have them amended in certain circumstances (34 CFR §§ 99.10–99.12 and §§ 99.20–99.22). The term “education records” is broadly defined to mean those records that are: (1) directly related to a student, and (2) maintained by an educational agency or institution or by a party acting for the agency or institution (34 CFR § 99.3) (FERPA, 2008).
At the elementary or secondary level, a student’s health records, including immunization records, maintained by an educational agency or institution subject to FERPA, as well as records maintained by a school nurse, are “education records” subject to FERPA. In addition, records that schools maintain on special education students, including records on services provided to students under the Individuals with Disabilities Education Act (IDEA), are “education records” under FERPA. This is because these records are (1) directly related to a student, (2) maintained by the school or a party acting for the school, and (3) not excluded from the definition of “education records” (FERPA, 2008).
At postsecondary institutions, medical and psychological treatment records of eligible students are excluded from the definition of “education records” if they are made, maintained, and used only in connection with treatment of the student and disclosed only to individuals providing the treatment (see 34 CFR § 99.3 “Education records”). These records are commonly called “treatment records.” An eligible student’s treatment records may be disclosed for purposes other than the student’s treatment, provided the records are disclosed under one of the exceptions to written consent under 34 CFR § 99.31(a) or with the student’s written consent under 34 CFR § 99.30. If a school discloses an eligible student’s treatment records for purposes other than treatment, the records are no longer excluded from the definition of “education records” and are subject to all other FERPA requirements (FERPA, 2008).
The FERPA regulations and other helpful information can be found at the U.S. Department of Education. For quick, informal responses to routine questions about FERPA, school officials may e-mail the U.S. Department of Education at FERPA@ed.gov. For more formal technical assistance on the information provided in this guidance in particular or FERPA in general, please contact the Family Policy Compliance Office at the following address: Family Policy Compliance Office U.S. USDOE of Education, 400 Maryland Ave. S.W., Washington, D.C. 20202-8520 (FERPA, 2008).
Confidentiality: Health Insurance Portability and Accountability Act
Congress enacted the Health Insurance Portability and Accountability Act (HIPAA) in 1996 to, among other things, improve the efficiency and effectiveness of the health care system through the establishment of national standards and requirements for electronic health care transactions and to protect the privacy and security of individually identifiable health information. These are known as HIPAA’s Administrative Simplification provisions, and the United Sates Department of Health and Human Services (USDHHS) has issued a suite of rules, including a privacy rule, to implement these provisions. Entities subject to the HIPAA Administrative Simplification Rules (45 CFR Parts 160, 162, and 164), known as “covered entities,” are health plans, health care clearinghouses, and health care providers that transmit health information in electronic form in connection with covered transactions (45 CFR § 160.103) (HIPAA, 2008).
“Health care providers” include institutional providers of health or medical services, such as hospitals, as well as noninstitutional providers, such as physicians, dentists, and other practitioners, along with any other person or organization that furnishes, bills, or is paid for health care in the normal course of business. Covered transactions are those for which the USDHHS has adopted a standard, such as health care claims submitted to a health plan (45 CFR § 160.103 definitions of “health care provider” and “transaction” and 45 CFR Part 162, Subparts K–R) (HIPAA, 2008).
The HIPAA Privacy Rule requires covered entities to protect individuals’ health records and other identifiable health information by requiring appropriate safeguards to protect privacy, and setting limits and conditions on the uses and disclosures that may be made of such information without patient authorization. The rule also gives patients rights over their health information, including rights to examine and obtain a copy of their health records, and to request corrections (HIPAA, 2008).
Where FERPA and HIPAA May Intersect
When determining whether personally identifiable information from student health records maintained by the educational agency or institution may be disclosed, school officials at institutions subject to FERPA should refer to FERPA and its requirements.
When a school provides health care to students in the normal course of business, such as through its health clinic, it is also a “health care provider” as defined by HIPAA. If a school also conducts any covered transactions electronically in connection with that health care, it is then a covered entity under HIPAA. As a covered entity, the school must comply with the HIPAA Administrative Simplification Rules for Transactions and Code Sets and Identifiers with respect to its transactions. However, many schools, even those that are HIPAA covered entities, are not required to comply with the HIPAA Privacy Rule because the only health records maintained by the school are “education records” or “treatment records” of eligible students under FERPA, both of which are excluded from coverage under the HIPAA Privacy Rule. See the exception at paragraph (2)(i) and (2)(ii) to what is considered “protected health information” (PHI) at 45 CFR § 160.103) (HIPAA, 2008).
In addition, the exception for records covered by FERPA applies both to the HIPAA Privacy Rule, as well as to the HIPAA Security Rule, because the Security Rule applies to a subset of information covered by the Privacy Rule (i.e., electronic PHI). Information on the HIPAA Privacy Rule is available from the Department of Health and Human Services, as can information on the other HIPAA Administrative Simplification Rules (HIPAA, 2008).
The HIPAA Privacy Rule specifically excludes from its coverage those records that FERPA protects. When determining whether personally identifiable information from student health records maintained by the educational agency or institution may be disclosed, school officials at institutions subject to FERPA should refer to FERPA and its requirements. While the educational agency or institution has the responsibility to make the initial, case-by-case determination of whether a disclosure meets the requirements of FERPA, the U.S. Department of Education’s Family Policy Compliance Office is available to offer technical assistance to school officials in making such determinations (HIPAA, 2008).
CSDE. (2008). Research-Based Interventions: Improving Education for all students. Connecticut’s Framework for RTI. Retrieved on February 7, 2012.
Joint Guidance on the Application of the Family Educational Rights and Privacy Act (FERPA) and the Health Insurance Portability and Accountability Act of 1996 (HIPAA) To Student Health Records.(2008). Retrieved on February 7, 2012.
National Association of School Nurses (NASN) (2010). Definition of school nursing. Retrieved on February 7, 2012.
National Association of School Nurses. (2008). Individualized healthcare plans (IHP). Retrieved January 19, 2012.
New Mexico School Health Manual Section V. Individualized Health Care Plans.
Office of Civil Rights (OCR). (2011). Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities. Retrieved on February 7, 2012.
Selekman, J. (ed). (2006). School Nursing: A Comprehensive Text: Student Health and Education Plans. F.A. Davis, Philadelphia, pp. 177-203.
Wolfe, L.C. (2012). The profession of school nursing. In J. Selekman, School Nursing: A Comprehensive Text. Philadelphia: F.A. Davis.