Concussion Symptoms Can Trigger Schools’ Obligations Under Section 504 or the IDEA

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.