1

What We Don’t See Still Hurts (Badly!): Provision of a Legally

Compliant Education for Students with Pain Disorders

Prepared for the 2015 Education Law Association Annual Conference

Cleveland, Ohio

By

Kelly A. Sherrill Linkous, Esq., J.D., Ph.D.

Assistant Professor and Honey S. Nashman Faculty Member of the Year,

The George Washington University

and

P. Tyson Bennett, Esq., J.D.

Senior Named Partner, Carney, Kelehan, Bresler, Bennett & Scherr, LLP

2

ABOUT THE AUTHORS

P. Tyson Bennett, Esq., J.D. is the managing partner of the Annapolis, Maryland office of the

law firm of Carney, Kelehan, Bresler, Bennett & Scherr, LLP, a mid-sized Maryland firm with

three offices located throughout the state. Mr. Bennett’s law practice concentrates on school

law, with an emphasis on disabilities law. He has represented local school systems in Maryland

for the past thirty years. During that time, he has taught education law at Johns Hopkins

University and has lectured at other colleges and universities, including Penn State, the

University of Washington, the George Washington University and the Franklin Pierce Law

Center of the University of New Hampshire. Mr. Bennett is a regular presenter at ELA’s annual

conference and at other school law conferences across the country. He has served as a board

member and as president of ELA (2005), is a past president of the Maryland Council of Local

School Board Attorneys, and is a member of the National School Boards Association Council of

School Attorneys.

Kelly Sherrill, Esq., J.D., Ph.D. is an Assistant Professor at The George Washington University

(GW) in the Educational Administration and Policy Studies (EAPS) program and winner of

GW’s “Honey S. Nashman Faculty Member of the Year Award” for 2014-15. Dr. Sherrill

coordinates and directs the EAPS doctoral program. She teaches “School Law and Policy,” as

well as “Leadership, Power and Education” (a first-semester doctoral course) and the “Pre-

Dissertation Seminar” (a fifth semester doctoral course where students write Chapters 1 and 2 of

their dissertation). Prior to joining GW as a faculty member, Dr. Sherrill practiced education law

in Georgia and Virginia, where her affiliated firms represented (collectively) five large, metro-

Atlanta school districts, many smaller, rural Georgia school districts, and over 80 of Virginia’s

school districts. Dr. Sherrill’s legal expertise includes special education law, First Amendment

law, law of student rights, student records law, and other areas of law applicable and relevant to

public schools. Dr. Sherrill obtained her J.D. from GW in 2001 and her Ph.D. in Educational

Administration and Policy from the University of Georgia in 2009.

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I. INTRODUCTION

The purpose of this presentation 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 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 attending 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 presentation 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 Section 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).

4

● 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, OCR 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 the

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

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.

7 42 U.S.C. §12102(4)(A).

5

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 that “are designed to meet individual educational needs

of [disabled] persons as adequately as the needs of [nondisabled] persons are met.”14

While not

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).

14

34 C.F.R. § 104.33(b)(1)(i).

6

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

Section 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 Section 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 Section 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). 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 needed to deliver FAPE under 504, without

regard to the costs of such services.19

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,

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).

20

20 U.S.C. § 1401(3); see also 34 C.F.R. § 300.8(a)(1).

7

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

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

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

8

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

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 Section 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

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).

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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

chargers 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

26

Weixel, 287 F.3d 138, 147 (2d Cir. 2002).

27

See, supra, n. 25.

28

See, supra, n. 26.

29

287 F.3d 138, 150 (2d Cir. 2002).

30

Id. at 150.

31

Id. at 142.

32

Id. at 142-43.

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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 counsel 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

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

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.

41

Id. at 147.

11

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

making reasonable accommodations for Rose’s disability by providing her any meaningful

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

instruction necessitated by her disability.42

Finally, the circuit court 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

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

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”).

48

2014 U.S. Dist. LEXIS 137567 (W.D. Pa. Sept. 30, 2014).

12

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, 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 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

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.

59

Id.

60

Id. at *18.

13

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

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

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.

69

Id. at *30.

14

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 her 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

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.

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.

15

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

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

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

Section 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).

16

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

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

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 Section 504: An Overview of Legal Issues (LRP 2d ed 2013).

17

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).

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).