In an upcoming article in the NEBRASKA SCHOOL LAW REPORTER, we reiterate the
obligations that school districts and their staff have under Nebraska’s
Concussion Awareness Act. Most Nebraska educators are generally familiar
with the statute’s requirement that students not be allowed to return to play
until they are free from concussion symptoms and that schools must adopt a
“return to learn” protocol to assist students with concussions in coming back
to the classroom. However, Nebraska educators must not allow their return
to learn processes to blind them to a student’s possible need for
accommodations under section 504 of the Rehabilitation Act or even a full-
blown IEP under the IDEA. An OCR decision from 2013 illustrates the issue.
In Acalanes (CA) Union High School District, 64 IDELR 86 (OCR, Dec. 2013)
a high school freshman student had sustained two concussions playing
middle school sports. When she began high school, she submitted a medical
form in which her physician diagnosed "concussion, head trauma,
migraines," and noted that the teen could not participate in contact sports.
The school nurse retained this document, but she did not take any action to
initiate any further evaluation of the Student’s condition. The student was
not referred to a student study team (what in Nebraska would be called a
“student assistance team”), Section 504 team, or Individualized Education
Program (IEP) team.
During her Freshman year, the Student had numerous absences from school
due to ongoing complications from her previous head injuries. In the spring
semester of the Student's freshman year, the principal sent the family an
"Excessive Excused Notice" related to the Student's absences. The letter
explained that the Student "has now reached 15 or more excused absences
in one or more periods since the beginning of the year." It then noted that,
"After 15 excused absences, you will be required to provide verification from
your child's physician to clear additional absences." The girl’s parents
provided the school with medical documentation showing that the girl’s
absences were related to her prior sports concussions. The principal did not
refer the student to a student assistance team, 504 team, or IEP team even
after the mother provided this documentation.
When she began her sophomore year, the student filled out another district
health information form and checked the boxes on the form for"Headache-
severe/Migraine," "Medication prescribed," "Physical activity limitations," and
"History of serious injury." On the second page, the student explained that
she took medication for migraines, had two concussions and had fractured
her back, and had physical limitations and wrote "See MD Note Attached."
The attached note from the Student's doctors indicated that because of her
back injuries and history of concussions, she could not participate in contact
sports as well as some other sports. Once again, the school nurse filed the
form but did not refer the student for further evaluation.
In the spring of the girl’s sophomore year, her doctor wrote to the school
counselor and explained that she was treating the Student for depression
and recommended that the Student receive a Section 504 plan. The
counselor then referred the girl and the District convened an initial Section
504 meeting for the student. The Section 504 team concluded that the
Student had a disability and crafted a Section 504 plan that included
numerous accommodations, including the ability of the student to receive
extensions on assignments.
This 504 plan remained in place for the rest of the student’s sophomore year
and all of her junior and senior year. In the fall of her senior year, conflict
arose because the student was struggling in AP Biology. Eventually the
family filed a complaint with the Office for Civil Rights.
OCR’s investigation initially centered on the accommodations provided to the
student for AP Biology, but eventually it extended back to the girl’s entry
into high school three years before. OCR concluded that the district should
have evaluated her in her freshman year to determine whether she had a
disability and would need accommodations. OCR noted that the initial
doctor’s note should have prompted the school to at least inquire about the
girl’s condition. OCR further held that when the district notified the family
that she was excessively absent during her freshman year, that was an
additional trigger to push the school to evaluate the student for eligibility
under section 504.
As a consequence OCR required the school district to pay for the student to
take an intensive summer Biology course that covered material substantially
equivalent to the year-long AP Biology course offered at the high school and
to pay for her to receive supplemental Biology tutoring during the first year
that she takes college Biology. The district also had to provide additional
OCR-approved training to its staff.
The increased emphasis on head trauma, in youth sports and elsewhere, will
only increase the expectations by parents and others for what schools should
provide for students who have suffered a concussion. In addition to return
to learn protocols, schools will be wise to also consider whether to refer a
student who is struggling to recover from a concussion to a student
assistance team, a 504 committee or even to a multi-disciplinary team for
possible eligibility under the IDEA.
If you have questions about when to refer a student for evaluation under
section 504 or the IDEA, we recommend that you consult with your school
district’s attorney or call Karen, Steve or Bobby.