Sent via email and fax

February 23,2012
Alice Wender, Director
Office for Civil Rights, District of Columbia Office
U.S. Department of Education
400 Maryland Avenue, SW
Washington, DC 20202-1475
Anurima Bhargava, Chief
Educational Opportunities Section, PHB
Civil Rights Division
U.S. Department of Justice
950 Pennsylvania Ave, NW
Washington, DC 20530
Re: , Complaint Regarding Denial of 504 Services for Diabetes Care by
the District of Columbia
Dear Ms. Wender:
University Legal Services (ULS) represents. ______ , a third grade public school
student with diabetes who performs at grade level in the District of Columbia. The District of
Columbia ("District") is required to accommodate ____ 's diabetes care needs so that she can
attend school and school events. The District provides public education services through 52 public
charter schools, as well as a traditional multi-school Local Education Agency (LEA), the District of
Columbia Public Schools ("DCPS"). The District's charter schools are chartered by the Public
Charter School Board ("PCSB"), which has sole authority to authorize new charter schools. The
PCSB is part of the District government and reports to the District's Deputy Mayor for Education.
The District's laws and policies regarding diabetes care apply to DCPS and DC Public Charter
220 I Street, NE. Suite 130
Washington, D.C. 20002
(202) 547-0198 ext. 102 Fax: (202) 547-2662 TTY (202) 547-2657
vthomas@uls-dc.org www.uls-dc.org
Schools. This complaint thus refers generally to the District to include all DCPS and DC public
charter schools.
The District has failed to provide _____ a tree appropriate public education
(FAPE) by failing to provide insulin and glucagon administration services in violation of Section
504 of the Rehabilitation Act, as amended, 29 U.S.C. 794, and its implementing regulation, 34
C.F .R. 1 04.4(b )(ii), 1 04.33(a) and (b), and 104.34, which prohibit discrimination on the basis
of disability by recipients of Federal financial assistance. The District is also in violation of Title
II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. 12131 et ~ a n d its
implementing regulation, 28 C.F .R. 35.130, which prohibit discrimination based on disability
by public entities. Attached is a release authorization for ____ signed by her parent,
_____ . ULS is the protection and advocacy agency designated to represent people with
disabilities in the District of Columbia to vindicate their rights and promote their access to
quality services.
The American Diabetes Association ("Association") joins in this complaint because of
the importance of assuring children with diabetes can safely attend school. The Association
seeks to represent the interests of its constituents, children with diabetes and their parents, who
are currently, or in the future may be, denied services by the District. The Association is a
nationwide, nonprofit, voluntary health organization founded in 1940. The mission of the
Association is to prevent and cure diabetes and to improve the lives of all people affected by
diabetes.
SUMMARY OF ALLEGATIONS
The District must provide trained school staff to administer insulin and glucagon at all
times during the school day, to include field trips, and during after-school activities, including
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times when the school nurse is absent or unavailable. Instead, the District has sent - - ~ h o m e
to receive diabetes care, causing her to miss days of school and attendant activities. The District
retaliated against ___ and her family for requesting related aids and services for her diabetes
and failed to provide them with procedural safeguards. In addition, the Association has received
reports that the District has a general practice of sending students with diabetes home to receive
diabetes care, including insulin administration, when a nurse is not available at school (or
requiring their parents/guardians to come to school to provide the care), and that this occurs quite
frequently throughout the school system.
REQUESTED RELIEF
On behalf of ___ and other District public and charter school students with diabetes,
ULS and the Association hereby urge the U.S. Department of Education, Office for Civil Rights
(OCR) or the U.S. Department of Justice (DOJ), Civil Rights Division, Educational
Opportunities Section to require the District to: 1) at the request of a parent or guardian, train a
minimum of three (3) full-time personnel at each school attended by a student with diabetes to
administer diabetes care, and direct them to provide such care when a nurse is not available at the
school;
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2) refrain from retaliation against students and families who request disability services;
and 3) take steps to assure that notice and due process is provided to students who make requests
for services under Section 504 or modifications of policy under the ADA.
I. FACTUAL BACKGROUND
_____ has had type I diabetes since she was one year old. She attended __ _
Elementary until September 19, 20 II, when the District transferred her to another DCPS school,
__ Elementary. Due to her diabetes, ____ has experienced sudden, acute hypoglycemia,
1
As discussed below, the District's current written policy actually requires this. Specifically, the policy requires school
principals to designate a minim run of three people in the school building who may administer special healthcare procedures
such as diabetes care and ensure the presence of at least one of these people during the school day. See infra. at p. 17.
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low blood glucose that can lead to coma, seizure and death. In the case of acute hypoglycemia,
glucagon, an injectable hormone that acts to raise blood glucose, must be administered
immediately. Delaying glucagon administration for just a few minutes (like a delay in
administration of epinephrine for an allergic reaction) can lead to permanent injury or death.
Glucagon is designed for lay people to administer and cannot harm ___ if administered in
error. can experience hypoglycemia suddenly, without warning, even though her
diabetes is well-managed. She can also unexpectedly experience high blood glucose, called
hyperglycemia, requiring insulin. If she does not receive insulin and treatment for high blood
glucose, she can develop diabetic ketoacidosis, a life-threatening emergency. If she eats a meal,
such as lunch, without an injection of insulin, she is likely to experience dangerously high blood
sugar, and so she cannot eat a meal without insulin. In order to monitor her blood glucose levels,
___ pricks her finger several times a day and places a drop of blood in a handheld glucose
meter. If ___ -or any other student with diabetes-needed assistance with blood glucose
monitoring, currently the District will not allow anyone but a nurse to assist ___ needs an
adult to determine what to do based on the blood glucose reading, such as administer insulin if
the level is too high. ___ is unable to measure or self-administer insulin due to her age and
inexperience. No one can self-administer glucagon because glucagon is only administered to
unconscious individuals.
A. The Family Req nested that DCPS Provide Trained Personnel to Administer
Diabetes Care when the Nurse Is Absent
___ 's parents, ____ and ____ , and her pediatric diabetes
specialist, Dr. ____ , have repeatedly requested that the District provide diabetes
care to ____ ., using either the nurse or another trained individual. As Dr. ___ stated
in a letter written September 14, 20 II:
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If does not get her insulin, she can develop life threatening
diabetic ketoacidosis that may result in death if left untreated. I am
requesting a nurse and back up trained individual to be present at her
school at all times. This individual must be able to administer insulin and
is knowledgeable enough to handle diabetic em ergencies. These
accommodations are necessary for her safety and life.
See Exhibit A (Letter from Dr. . ULS submitted a demand letter again requesting
diabetes care services for on September 20, 2011. See Ex. B (September 20, 20 II
Demand Letter). Dr. repeated the reasons that __ needs trained staff available
to administer diabetes care in person to ___ 's 504 Team on November 2 and November 4,
explaining that calling 911 is not a viable alternative because ___ needs insulin regularly and
because glucagon must be administered immediately to prevent brain damage, coma, and death.
Dr. ___ further explained that the medical community agrees that it is safe and
practical to train school personnel to serve as backups to administer insulin and emergency care,
such as glucagon.
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She provided a free training on November 2, 2011 to __ ' s teachers and
administrators on how to administer insulin and glucagon.
At Ms. ___ 'sand Mr. ____ ' request, Dr. ___ submitted a proposed 504
Plan for ____ to the District that includes provisions to train full-time school personnel, in
addition to the nurse, to administer insulin and glucagon to ____ in the nurse's absence. See
Ex. C (Dr. ____ 's Proposed 504 Plan). The District agrees that ____ 's type I
diabetes is a disability for the purposes of Section 504, but refuses to implement Dr. ____ _
's proposed 504 Plan. Instead, the District proposed a plan that does not adequately
address diabetes care in the nurse's absence:
2
The Association has issued a peer-reviewed position statement from specialists in the area of pediatric
endocrinology supporting this practice. See American Diabetes Ass'n, Position Statement, Diabetes Care in the
School and Day Care Setting. 35 Diabetes Care S76-S80 (2012), available at
http:/ I care.diabetesjoumals.org/ content/3 5/S upplement_l /S 7 6.full.pdf+html.
5
The school will communicate with Ms. --,-when the nurse is out an d
DCPS will work to setup a proccs s for ensuring coverage for the nurse's
absence so that does not have to miss school. There are remaining
questions about emergency glucagon that need to be addressed.
Sec Ex. D (DCPS Proposed 504 Plan). Based on the above statem ent, the District is
providing no assurance that trained staff will be available to administer insulin, only that
the District will work to set up a process. And the Distr ict does not address a t all the
need to ensure that glucagon is ad ministered when needed. ULS subm itted a letter on
___ 's behalf regarding th e deficiencies in DCPS' Pr oposed 504 Plan. See Ex. E
(October 5, 2011 Response Letter). In its October 19,2011 letter, DCPS responded that
it was meeting its 504 obligations and that "Should the student be in crisis, em ergency
personnel can be contacted to administer any needed intervention or medication." See
Ex. F (Letter from Tanya Chor).
On November 4, 20 II, a meeting was held during which the Chief of Special Education
at the Office of the State Superintendent of Education (OSSE), Dr. Nathaniel Beers, stated that
the District would not allow anyone but a nurse to administer diabetes care, including blood
glucose monitoring, insulin administration, or glucagon. He stated that although he found the
District's policy "ridiculous," no one but a nurse may administer diabetes care to ___ _
Additionally:
The family raised concerns about not having a backup person who can
administer insulin and Dr. Beers, OSE [sic] Chief, explained that at this
point that is not permitted per DC regulations [sic]. The family's attorney
disagrees with this interpretation and DCPS agreed to setup a meeting to
discuss this regulation [sic] moving forward.
Sec Ex. D (DCPS Proposed 504 Plan). The law ULS and Dr. Beers discussed was the D.C.
Student Access to Treatment Act of 2007. D.C. Code Ann. 38-651.04. The Student Access to
Treatment Act of 2007 ("Act") is:
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AN ACT to penn it a student with a valid medication action plan to possess
and self-administer asthma or anap hylaxis medications while at sch ool, at
school-sponsored activities, and while on school-sponsored transportation, to
permit a trained school employee or agent to administer medication to a
student with a valid me dication action plan, to permit a trained school
employee or agent to ad minister medication to any student in emergency
circumstances, in acco rdance with a doctor' s standing order, to require
schools to maintain student medical records in an easily accessible location, to
allow schools to store additional medication for self-administering students, to
prohibit the misuse of self-administered medications, and to require the Mayor
to promulgate rules to implement the provisions of this act; and to repeal the
Administration of Medication by Public School Employees Act of 1993.
D.C. Law 17-107 (Feb. 2, 2008) (emphasis added).
The Act makes clear that a trained school employee may administer to a student
medication such as a regular lunchtime insulin dose according to a 504 Plan, and to administer
medication such as glucagon for severe hypoglycemia to any student in an emergency. See
discussion below at 15.To date, the District has not set up a meeting with ULS to discuss the Student
Access to Treatment Act.
At the November 4, 20\lmeeting, the District refused to provide compensatory
education related to the days it forced ___ to stay home from school. In the fall of2011, the
District required ___ to stay home for ten days: September 13-16, September 19-20, October
7'h, October 13
1
h, November 15'\ and November 16tl'. See Exhibit G '------Time line).
The District similarly forced ___ to stay home from school frequently in past years. The
District stated that in the future it would attempt to find substitute nurses when the school nurse
was unavailable. The District acknowledged during the meeting and in its proposed 504 Plan
that there would be times there would be no one available at ____ Elementary to administer
diabetes care to ___ , and if ___ needed insulin in order to eat lunch or to treat
hyperglycemia or glucagon to treat severe hypoglycemia, school staff would call9Jl.
B. The District Forces ____ to Stay Home When the Nurse Is Unavailable
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On days the nurses are absent, the ___ family is given a Hobson's choice: to keep __ _
home or send ___ to a school where she cannot eat, because no one can give her insulin, where
___ is at risk of brain damage, coma, and death because she must wait for 911 responders to assist
her in the event she experiences severe hyperglycemia or hypoglycemia, and where ___ cannot
regulate her insulin levels to allow her to concentrate and learn every day and to avoid the
complications of diabetes including blindness, amputation, kidney failure and heart disease. District
staff, including Principal Maisha Riddlesprigger, and school nurses, and other
school staff have explicitly and repeatedly asked 's family to keep her home or pick her up
from school early on days the nurse is unavailable. To make matters worse, the District has referred
___ to the Child and Family Services Agency (CFSA) for truancy caused by the District's
violation. With no warning to ___ ' s parents, DCPS also placed ____ in a classroom with a
different grade on October 27tl
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because the District did not provide a school nurse for ___ 's class
field trip and therefore would not allow her to attend.
The District does not have a working system to provide diabetes care to _____ _
and other students with diabetes when the nurse is unavailable. The District has a contract with
the DC Department of Health ("DOH") and Children's National Medical Center ("CNMC") to
provide licensed nurses in DCPS and DC Public Charter Schools. See Children's School
Services Website, "Who We Serve," available at
http://www.childrensnational.org/advocacy/childrens-school-services/who-we-serve.aspx (last
visited January 30, 20 12). The contract states that Elementary School is supposed to have
two nurses assigned, Nurse Lane and Nurse Brown, whose combined assignment is to be at __
Elementary School every day from Sam to 4:30pm. See Exhibit H (School Schedule by Ward).
As evidenced by the many dates no nurse was present at ___ Elementary School and __ _
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Elementary School, DCPS's practice does not ensure full-time nursing coverage, See Exhibit D
(DCPS Proposed 504 Plan), Nurses are not regularly provided on field trips or at after-school
events,
__ _:Elementary ensures that students with asthma, severe allergies, and chronic illnesses
other than diabetes can get life-saving injections and medications during th ese frequent nurse
absences by training backup school staff; called Trained Medication Employees (TME), However,
the District's practice, unguided by formal policy, does not allow TMEs to administer diabetes care,
This practice ignores the fact that the Student Access to Treatment Act allows trained school staff to
administer medication--defined as any prescription or non-prescription drug-to any student with a
medication action plan or who is having a health crisis.
The 504 Plan proposed by the District is woefully inadequate to meet the minimum
requirements of Section 504. See Ex. D (DCPS Proposed 504 Plan). ULS informed the District of
the proposed 504 Plan's failure to include basic information required to meet the needs of any child
with a chronic health condition, including: 1) a Medical Management Plan or other section to address
____ 's individualized diabetes care plan based on her doctor's orders; 2) where she will receive
diabetes care, and who will provide it; 3) the names of ___ 's teachers and what training they will
receive regarding diabetes; 4) her daily schedule; 5) emergency contacts; and 6) procedural
safeguards. See Ex. E (October 5, 2011 Response Letter). Regardless of the appropriateness of the
elements of the DCPS Proposed 504 Plan, it does not provide the basic necessmy information to
communicate what disability needs ___ has and how the school will meet them. For example,
despite the passage of literally years since the ___ family requested the District provide sufficient
diabetes care coverage for ___ ., the Plan indicates that the District is still "working on" meeting
___ 's needs: "DCPS will work to setup a process for ensuring coverage for the nurse's absence so
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that does not have to miss schooL There are remaining questions about emergency glucagon
that need to be addressed." The District's proposed 504 Plan for ______ acknowledges that the
District does not currently have a process to enable ___ to attend school, showcasing that the
District is not meeting the most basic requirement of a 504 Plan, access to education.
C. The District Retaliated Against the Family for Requesting 504 Services
Several times in the fall of 2011, DCPS took action against and her family
in response to their on-going advocacy for ___ 's 504 rights. On September 13,2011, Ms.
___ discovered that the nurse was not at ___ Elementary, where ___ attended school at
the time. In response to Ms. ___ ' s request that ___ find a nurse so could attend
school that day, the __ principal, Maisha Riddlesprigger, told Ms. __ that her choice was
to stay at school and provide the diabetes care herself or to take __ home. When Ms. __ _
became upset, Ms. Riddlesprigger retaliated by banning Ms. from the school, an action
which was upheld by the District. See Ex. F (Letter from Tanya Chor). Because the school
frequently had no nurse present and did not inform the family, __ could not attend a school
that did not allow her mother on campus to perform the diabetes care the school by law should
have been providing. In further retaliation, DCPS transferred ___ to ___ Elementary
School.
Over a month after ____ transferred from ___ Elementary School, school staff at
___ Elementary School took the additional retaliatory step of reporting the __ family to
DCPS' s Central Office for a residency investigation. See Ex. I (Student Residency Office
Letter). The residency investigation required Ms. ___ to submit seven forms of identification,
including financial statements, and go to an interview at the DCPS Central Office. The
investigation was so upsetting that Ms. ___ left partway through the interview in tears and
ULS submitted the remaining information requested via email.
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The District further retaliated against ______ by denying her access to a field trip,
despite assurances that a nurse would be provided and she could attend. On October 27, 2011,
the entire __ Elementary third grade class attended a trip to the Kennedy Center, but, despite
assurances a nurse would be provided on field trips in DCPS' Proposed 504 Plan, the District did
not allow ___ to attend and did not provide a nurse on the trip. Instead, school staff placed
___ .in a fourth grade classroom for the day, with no notice to her parents, and told it
was her mother's fault. This was the first and only field trip ___ 's class has ever taken in the
years she has attended a District public school.
II. THE DISTRICT'S VIOLATIONS OF FEDERAL LAW
The District is in violation of Section 504 of the Rehabilitation Act (Section 504), 29
U.S.C. 794 et seq. and Title II of the ADA,
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42 U.S.C. 12131 et seq., because it unlawfully
discriminates against ___ based on her disability by excluding her from participation in and
denying her the benefit of educational services.
___ requires insulin during the school day, and requires emergency glucagon
injections in the event of severe hypogylcemia during the school day and during field trips and
other extracurricular activities. Insulin and glucagon administration are considered "related aids
and services" that the school must provide as part of its FAPE obligations under the Section 504
regulations. 34 C.F.R. 104.37(a)(2).
Based on these requirements, the District has violated Section 504 and the ADA by
denying ______ trained school staff to administer diabetes care when the nurse is absent,
thereby preventing her from equal access to education, as explained below.
3
Section 504 and the ADA are similar in their requirements and application, and "cases interpreting either are applicable
and interchangeable." Allison v. Dep't ofCmTections, 94 FJd 494,497 (8th Cir.l996); see also VandeZande v. Wisconsin
Dep't of Admin .. 44 F.3d 538, 542 (7th Cir.l995). Therefore, the discussion relating to Section 504 above is equally
applicable to the ADA.
II
A Trained Backup Staff to Administer Diabetes Care Is Necessary for Mean ingful
Access to Educational Services
Ms. ___ and Dr. ____ 's repeated requests for trained backup school staff
constitute requests for services necessary to provide ______ meaningful access to her
education under Section 504. In Irving Independent School District v. Tatro, the Supreme Court
found a public school district liable for denying required services under the Individuals with
Disabilities Education Act (IDEA), where the district refused to provide school staff to
administer clean intetmittent catheterization (CIC) to a student with a disability. 468 U.S. 883,
893-894 (1984). The Supreme Court discussed the fact that the school district provided school
staff to administer medications-including injections-and that CIC was a similarly required
health service. !d. The IDEA and Section 504 similarly require public schools to provide
services to enable students with disabilities to receive FAPE. P.P. ex rei. Michael P. v. West
Chester Area School Dist., 585 F.3d 727, 735 (3d Cir. 2009) ("The IDEA and 504 of the
Rehabilitation Act do similar statutory work. ... Section 504 of the Rehabilitation Act is parallel
to the IDEA in its protection of disabled students: it. .. prohibit[ s] discrimination against students
on the basis of disability, and it has child find, evaluation, and F APE requirements, like the
IDEA."). Under Tatro, DCPS must provide required health services to students with disabilities,
such as diabetes care to students with diabetes.
The lack of trained backup staff to administer diabetes care has forced ___ to miss in
excess of I 0 days of school each school year and to be excluded from the only field trip ever
offered to her class, simply because she had diabetes. In Celeste v. East Meadow Union Free
School District, a public school refused to provide curb cuts, forcing a student who used a
wheelchair to take a ten minute detour each time he entered or exited the athletic fields at a
public school, denying the student "meaningful access" to programs offered by the school in
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violation of Section 504 and the ADA. 20 I 0 WL I 572296 at * 1 (2nd Cir. 20 10). Denial of
trained backup staff requires ______ to physically leave school during the nurse's
frequent absences, denying her meaningful access to all programs offered by __ Elementary
School. A request that a school district provide staff to administer insulin and glucagon to a
child is "like asking [it] to accommodate a wheelchair-bound student by installing a ramp or
widening doors." AP v. Anoka-Hennepin Ind. Sch. Dist., 538 F.Supp.2d 1125, 1147 (D. Minn.
2008). In other words, diabetes care is a basic access issue; without it, ___ cannot attend
school safely.
The District does not dispute that ___ cannot safely attend school if there is no one
available to administer her insulin and glucagon. For years, the District asked Ms. __ to
keep home from school when the nurse was absent. More recently, the District asserted
that 911 emergency services are a sufficient alternative to having trained personnel available at
all times. See Ex. F (Letter from Tanya Char). DCPS' proposal violates Section 504 and the
ADA because it is unsafe and ineffective, as Dr. _____ explained, and violates ___ 's
rights. 911 is not an appropriate substitute for trained school staff to administer emergency
medication. Silsbee lndep. Sch. Dist., 25 IDELR 1023 (Tex. State Educational Agency 1997)
(calling 911 was not an appropriate response to a student's need for emergency seizure
medication because there was no guarantee an ambulance would arrive within any particular
time frame, despite the fact that a hospital was nearby). DCPS' own policy acknowledges that
"emergency care for students who become sick or injured at school is primarily the responsibility
of school personnel." See Ex. J (CNMC Policy No. 1001 ).
In addition to the harm the District has done to ___ by forcing her to leave school,
___ has been harmed by the denial of regular diabetes care at school. Relief need not depend
13
on actual hatm to ___ ' s health. In strikingly similar circumstances, a court held that, absent
actual physical injury, the District had failed to comply with the IDEA where "the health of a ...
child depends on the regular administration of her medication" and the District failed to provide
it. Blackman v. District of Columbia, 185 F.R.D. 4, 6-7 (D.D.C. 1999).
ADA regulations forbid entities from providing "a qualified individual with a disability
with an aid, benefit, or service that is not as effective in affording equal opportunity to obtain the
same result, to gain the same benefit, or to reach the same level of achievement as that provided
to others." 28 C.P.R. 35.130(b)(l) (emphasis added). Unlike students with allergies or asthma,
the District offers staff to administer diabetes care to ___ only sometimes at school. Students
with severe allergy or asthma get those life-saving medications all the time at school. The
District's proposal to contact emergency services is not a service, as they would presumably call
911 on behalf of any student, with or without a disability, who was experiencing a health crisis.
Regardless, DCPS' s proposal renders ___ Elementary School inaccessible to ___ when the
nurse is unavailable in violation of federal law.
OCR has repeatedly found that school districts' failure to provide trained personnel to
administer insulin, glucagon, and other diabetes care to students with diabetes violates Section
504. See Clovis (CAl Unified School District, Complaint No. 09-08-1395,52 IDELR 167 (OCR
2009) (OCR concluded that the district violated Section 504 by failing to provide FAPE to a
number of students with disabilities, including a sixth-grader with type 1 diabetes, by requiring
parents to attend school events and provide diabetes and other care in order for students with
disabilities to participate); Loudoun County (VA) Pub. Schs., Complaint Nos. 11-99-1003, 11-
99-1064, 11-99-1069 (OCR 1999); Conejo Valley (CAl Unified Sch. Dist., Complaint No. 09-
93-1002, 20 IDELR 1276 (OCR 1993) (OCR found that the District violated Section 504 and
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Title II of the ADA by restricting emergency diabetes injections by school personnel to the nurse
and others who were not always present). School districts must provide staff to administer
emergency injections of glucagon and other medications. E.g., Silsbee lndep. Sch. Dist., 25
IDELR I 023 (Tex. State Educational Agency 1997) (calling 911 was not an appropriate response
to a student's need for emergency seizure medication because there was no guarantee an
ambulance would arrive within any particular time frame, despite the fact that a hospital was
nearby).
B. DC Law and Policy Allow Trained School Staff to Administer Diabetes Care in the
Nurse's Absence
DC law allows nonmedical school staff to administer both routine and emergency
medication to students, including medications for diabetes. As noted above, pursuant to the
Student Access to Treatment Act of 2007, both routine and emergency medications may be
administered by trained school personnel:
(a) By July I, 2008, the Mayor shall develop and implement a medication
administration training program, which shall provide training and certification of
employees and agents of a school to:
(I) Administer medication to students with valid medication action plans
who are not authorized to possess that medication or are not competent to
self-administer the medication; and
(2) Administer medication in emergency circumstances to any student
suffering an acute episode of asthma, anaphylaxis, or other illness.
D.C. Code Ann. 38-651.04. The Act does not limit the type of medication that may be
administered; it defines "medication" as "any prescription or non-prescription drug used to treat
conditions and illnesses covered by this subchapter." D.C. Code 38-651.0 I (emphasis added).
The Act further defines "emergency circumstances" as "reasonably apparent circumstances that
indicate that any delay in treatment would endanger the health or life of the student." D.C. Code
38-651.01. Thus, both routine insulin administration and emergency injections of glucagon are
15
included under the Act. The Act applies to "[a]ny public school operated under the authority of
the Mayor of the District of Columbia; and [ a]ny charter school, parochial school, or private
school in the District." DC Code 38-651.01. The District currently trains and authorizes
school personnel to administer routine and emergency medications other than diabetes
medications to students under the Act.
4
DC regulations also govern nurses and others who may administer medication pursuant to
principles of nurse delegation. The regulations state:
Unless otherwise authorized under this title, a delegating registered nurse
shall not delegate to tra ined unlicensed personnel any nursing acts or
interventions relating tom edication administration, including ...
[a ]dministration of a medication by inje ction route, except for epip en or
ejection system as set forth in 17 DCMR 6111 ...
D.C. Mun. Regs. tit. 17 5415.17 (2011) (emphasis added). By the terms of these regulations
themselves, their prohibitions on non-medical personnel administering medication are subject to
exceptions. Indeed, as an exception, the regulations, at section 5415.16, specifically authorize
nurses to train school personnel to administer medication. Specifically, this regulation provides
that "A delegating registered nurse may delegate the intervention of administering medication to
trained unlicensed personnel in ... public schools ... as authorized under. .. D.C. Official Code
38-632." The regulatory reference to D.C. Official Code 38-632 is outdated- that section was
repealed and replaced by the Student Access to Treatment Act, which, as discussed above, does
authorize non-medical school personnel to administer medications such as insulin and glucagon.
4
ULS met with the Executive Director of the DC Board of Nursing (BON) Karen Skinner and the Department of Health
Assistant Attorney General Van Brathwaite on October I 2, 2011. They stated during that meeting that nurses may train
unlicensed personnel in DCPS to setve as backups, and that the Act allows backup school personnel to administer insulin
and glucagon to students with diabetes. UL S also contacted the att omey in the Office of the Attorney General with
expertise regarding the Student Access to Treatment Act of2007. Rudolph Schreiber. In a phone call on November 10.
2011, Mr. Schreiber stated to counsel that the Student Access to Treatment Act of 2007 allows backup school personnel to
be trained and to administer insulin and glucagon to students at school. lJLS encouraged DCPS to contact these individuals
with any questions regarding whether the Act allows trained school personnel to administer insulin and glucagon.
16
It is noteworthy that the District's practice is to train school personnel to treat students
with asthma inhalers, even though the regulations state that the practice may not be delegated,
unless otherwise authorized by law. D.C. Mun. Regs. tit. I 7 5415.17 (2011) ("medication
inhalation treatment" may not be delegated unless otherwise authorized by law). It is clear that
the District correctly interprets the Student Access to Treatment Act as creating the exception
"otherwise authorized" under the regulations to permit delegation of this task. The same
conclusion should apply to administration of insulin and glucagon.
5
Moreover, the District's own policy makes clear that having school staff available at all
times to administer diabetes eare is necessary; this is, in fact, the District's official policy. See
Ex. K (CNMC Policy No. 1402). This policy is detailed regarding requirements for students
with diabetes, none of which DCPS has followed for ______ . The policy lists diabetes as
a "high-risk illness" that "may require close monitoring and may need frequent treatment
interventions in order to remain in the educational setting" including "observation and treatment
for high and low blood sugar." CNMC Policy No. 1402, pg. 3. The principal must designate
school staff to implement a student's health plan during the school day and on field trips,
designate a minimum of three people in the school building who may administer special
healthcare procedures such as diabetes care, and ensure the presence of at least one of these
people during the school day. CNMC Policy No. 1402, pg. 5.
C. The District's Interpretation of DC Law Is Preempted by Federal Law
As discussed above, the District interprets DC laws and regulations regarding
administering asthma, anaphylaxis, and other medications in conformity with federal law in
5
Any concerns that school officials may have about potential liability should be addressed by protections set out in
statute: D.C. Code Ann. 38-651.11 provides that schools and staff are protected from liability related to the good-
faith administration of medication pursuant to the Act.
17
order to accommodate and provide care to students with these conditions. A reasonable
interpretation of the existing District laws and regulations similarly would allow administration
of diabetes care by trained school personnel in the nurse's absence. If, on the other hand, DC
law were interpreted to prohibit trained school personnel from administering routine and
emergency diabetes injections-as the District argues-that interpretation would be preempted
by federal law. The District's refusal to allow its TMEs to administer diabetes care in the nurse's
absence violates Section 504 and the ADA.
Under the Supremacy Clause, a state statute is preempted to the extent it conflicts with
federal law. See U.S. Canst. Art. VI, Cl. 2. State law conflicts with federal law either (I) when it
is impossible to comply with both state and federal law or (2) "where 'under the circumstances
of [a) particular case, [the challenged state law] stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress."' Crosby v. National Foreign Trade
Council, 530 U.S. 363, 372-373 (2000) (citation omitted). In determining whether state law is
preempted, courts must consider "the relationship between state and federal laws as they are
interpreted and applied, not merely as they are written." Jones v. Rath Packing Co., 430 U.S.
519, 526 (1977). The United States Supreme Court has "held repeatedly that state laws can be
pre-empted by federal regulations as well as by federal statutes," Hillsborough County v.
Automated Medical Laboratories, Inc., 471 U.S. 707, 713 (1985), and that "[f]ederal regulations
have no less preemptive effect than federal statutes," Fidelity Federal Savings & Loan Ass'n v.
de Ia Cuesta, 458 U.S. 141, 153 (1982). In a number of contexts, federal and state courts have
correctly held that federal disability rights laws- including Section 504, the ADA, and the IDEA
-preempt state statutes to the extent they conflict with federal mandates. See, e.g., Hacienda La
Puente Unified Sch. Dist. v. Honig, 976 F.2d 487, 492-496 (9th Cir. 1992) (state laws must yield
18
to the extent they impede exercise of IDEA rights); Helms v. McDaniel, 657 F.2d 800, 805-806
(5th Cir. 1981) (Section 504 and IDEA preempted state laws governing hearing procedures),
cert. denied, 455 U.S. 946 (1982); Robert M. v. Benton, 634 F.2d 1139, 1142 & n.11 (8th Cir.
1980) (same as to IDEA). Cf.1rving 1ndep. Sch. Dist. v. Tatro, 468 U.S. 883, 893 (1984) (noting
that even if defendant's reading of Texas law were correct, it would "conflict[] with the
Secretary's reasonable interpretation of congressional intent" in enacting the IDEA).
___ Elementary School has an existing TME program, through which __ Elementary
School provides medications, including injections, in the nurse's absence to students with
conditions other than diabetes. OCR found that a school district that makes decisions regarding a
student with a disability based on a generalized injection policy without consideration of the
individual student's needs violated Section 504 and Title II of the ADA. See Conejo Valley
(CA) Unified Sch. Dist., Complaint No. 09-93-1002, 20 IDELR 1276 (OCR 1993) (OCR found
that the District violated Section 504 and Title II by limiting the authorized personnel who could
administer an emergency injection to a six-year-old student with diabetes to the school nurse or
the parent, none of whom were present on a regular basis at the school). Here, the District's
practice ignores both the rights of a student with a disability and contradicts District policy for
students with diabetes. The District cannot rely upon its interpretation of local law as a means to
circumvent the requirements of Section 504 and the ADA. Accordingly, the District must
ensure that non-medical personnel are trained and available to administer insulin and glucagon in
the absence of a nurse.
D. Diabetes Experts Support Administration of Diabetes Care by T rained School
Personnel
Training personnel to administer diabetes care at school is an accepted and encouraged
practice across the country. Indeed, it is the overwhelming view of experts in the care of people
19
with diabetes that diabetes care tasks do not involve medical or nursing practice, but, rather, can
be safely and effectively accomplished by trained school personnel. The conclusion is confirmed
in, for instance, the National Diabetes Education Program's publication Helping the Student with
Diabetes Succeed: A Guide for School Personnel (20 I 0). This Guide, available at
http://ndep.nih.gov/media/youth_ndepschoolguide.pdf, is an authoritative position statement on
the care of students with diabetes, reflecting the views of the primary diabetes, pediatric
medicine, and educational organizations, including the United States Departments of Health and
Human Services and Education. The Guide, at page 66, recognizes and supports the conclusion
that "nonmedical personnel ... can be trained and supervised ... to safely provide and assist
with diabetes care tasks in the school setting. These tasks may include ... insulin and glucagon
administration .... " The Centers for Disease Control (CDC), National Institutes of Health,
American Diabetes Association, and numerous other medical organizations have signed on to
this Guide.
The Association would be very willing to assist the District regarding its training efforts.
It can make available a wealth of information for free, including training videos and other
resources.
E. The District Retaliated against the ___ Family for Asserting __ 's Rights
The District retaliated against the family for advocating for 's right to
diabetes care at school by: I) falsely reporting to CFSA for truancy caused by DCPS'
violation/sending her home; 2) banning Ms. ___ from ___ 's original elementary school in
response to Ms. ___ 's advocacy; 3) transferring ___ to __ Elementary; 4) falsely
reporting the family for a residency investigation at DCPS' s Central Office; and 5) not allowing
___ to go on a field trip.
20
Nearly all of these retaliatory actions occurred within hours or days of Ms. 's
demand for services under Section 504 by DCPS, namely, diabetes care to enable her daughter to
attend school. See Loudoun County (VA) Public Schs., Complaint Nos. 11-99-1003, 11-99-
1064, and 11-99-1069, 101 LRP I 082 (OCR 1999) (complainant parents engaged in protected
activities under Section 504 when they repeatedly requested trained personnel to administer their
child's diabetes care at a public elementary school).
In a retaliation claim similar to the situation at issue here, the Sixth Circuit upheld a case
against a school where a parent complained that her child with diabetes was being denied staff to
administer insulin at school and, in response, the school filed false reports, transferred the
student, and denied educational services. Jenkins v. Rock Hill Sch. Dist., 513 F.3d 580, 583-84
(6th Cir. 2008). In Jenkins. the court held that: "[A]jury could conclude [the school official's]
alleged actions, dismissing [the student] from school, being involved in making a false report to
Children Services, and refusing to provide home-school education through the services of a tutor,
would chill a person of ordinary firmness from [making a complaint]." ld. at 588-89.
The District has similarly engaged in retaliatory actions that would chill a person of
ordinary firmness from making a complaint. The District should be sanctioned for initiating a
false CFSA investigation that questioned Ms. ___ 'sand Mr. __ ' parenting skills and
raised a threat-albeit baseless-of removal of __ from their home. During the residency
investigation, Ms. ___ was embarrassed, upset, and forced to provide documentation of her
employment, how much the family pays in rent, proof of any public assistance the family
receives, and other private information. The DCPS staff person told Ms. __ that the many
documents she provided at the in-person interview were insufficient and that her daughter would
likely no longer be allowed to attend a DCPS school, and harangued Ms. ___ to the point that
21
Ms. ___ had to end the interview and leave in tears. The transfer separated ___ from the
school community that she was familiar and comfortable with, where she had friends and knew
her teachers. School staff further retaliated hy refusing to allow to attend her first field
trip, and explicitly blamed Ms. when asked why she could not attend.
F. The District Denied ______ Procedural Safeguards
Section 504's implementing regulations require the District to implement a system of
procedural safeguards which must include notice, an oppmtunity for the parents or guardian of
the person to examine relevant records, an impartial hearing with opportunity for participation by
the person's parents or guardian and representation by counsel, and a review procedure. 34
C.F .R. I 04.36. The District made a number of crucial actions and decisions that triggered the
due process and notice requirements under federal law. However, the District never notified the
____ family or their attorney of the reason(s) for these actions, the right to examine relevant
records, or the right to request an impartial hearing and appeal the decision, in violation of 34
C.F .R. I 04.36.
Notably, the District failed to provide notice or due process regarding its decision to
intermittently change ___ 's educational placement from the general education program to
homebound status without educational services by refusing to provide backups for the nurse;
neither did DCPS provide any information about the right to appeal the decision. Moreover,
DCPS did not provide notice or due process regarding its decisions to: I) ban Ms. from
___ Elementary and transfer ; 2) deny the __ family's request for trained
backup staff to administer diabetes care; 3) deny the ability to attend a field trip;
and 4) fail to provide school staff to administer diabetes care on ten school days in the fall of
20 II.
22
CONCLUSION
For the reasons stated above, we request that OCR find that the District violated its
obligations under federal law. The District should be required to remedy its failure to
accommodate-. s diabetes needs by training three full-time school personnel, in
addition to the school nurse, to administer insulin and glucagon, so that ,can attend
school and field trips. We further request OCR to require the District to cease the retaliatory
actions the District has taken against the
to provide procedural safeguards.
Respectfully submitted,
Victoria Thomas, Staff Attorney
Marjorie Rifkin, Managing Attorney
lJniversity Legal Services
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Managing Director, Legal Advocacy
American Diabetes Association
cc:
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Jamily for their advocacy, and remedy its failure
Renee Wohlenhaus, Deputy Chief, U.S. Department of Justice
Tanya Chor, Attorney for DCPS
Dr. Nathaniel Beers, Chief, Special Education, DCPS
Julie Holt, Program Specialist for Targeted Student Support, DCPS
23