Article 2 of TBI series; based on information presented at ACSA’s 2017 Every Child Counts Symposium by Melissa Hatch, Esq., Hatch & Cesario, and Jarice Butterfield, Ph.D., CBIS, Santa Barbara County SELPA Director
When education personnel hear that a student has sustained a TBI, they should designate a point of contact - a person to communicate with medical staff (usually a nurse, psychologist, counselor, or administrator) and consider sending a representative from the school to visit the student in the hospital, or attend their discharge meeting if possible.
The recent amendments to the Americans with Disabilities Act include attention to TBI, which is covered by Section 504 of the Rehabilitation Act, which requires an individualized evaluation of whether the student has a physical or mental impairment that substantially limits a major life activity, without regard to mitigating measures, such as a health care plan or medication.
Section 504 and eligibility
There must be an evaluation under section 504 before the initial placement and services are provided. Section 504 evaluations may be direct evaluations (e.g., academic assessments; cognitive) or more informal observation, private/medical information, teacher and parent input. All evaluations under Section 504 must include parent input and should include teacher input. The amended ADA clarifies that “substantially limits” is NOT a strict standard.
The impairment does not have to prevent or severely restrict the performance of a major life activity to qualify. Major life activities include eating, sleeping, standing, sitting, reaching, lifting, bending, learning, reading, concentrating, thinking, writing, communicating, and interacting with others. Major life activities also include major bodily functions such as neurological function, brain function, immune system, etc. (42 USC §12102(2)(A) and (2)(B).)
Consideration of eligibility is not limited only to thinking, concentrating, or learning. There is also no consideration for ameliorative effects of mitigating measures. The amended ADA includes assistive technology, modifications, learned behavioral, and adaptive modifications.
In one case, an 8th-grade student suffered a TBI after being hit by a car. He suffered from severe headaches, memory loss, dizziness, nausea, and difficulty concentrating, but continued to have good grades. In finding the student ineligible, his district cited his satisfactory grades and test scores. The district was ordered to reevaluate the student because it did not fully consider whether the student's impairment substantially limited his learning. Cabarrus County (NC) Schools, 59 IDELR 113 (OCR 2012).
Section 504 and FAPE
The amended ADA emphasizes that more individuals should qualify for section 504. Once qualified, the student is protected by the anti-discrimination portion of section 504 and the 504 team decides what a student needs to receive a FAPE (free, appropriate public education), documenting that in a 504 Plan.
Section 504 defines FAPE as the provision of general or special education and related aids and services that are designed to meet the individual needs of students with disabilities as adequately as the needs of nondisabled students are met (34 CFR §104.33 (b)(1)(i).)
Section 504 and TBI
The Office for Civil Rights has stated that a temporary impairment is not a disability under Section 504 “unless its severity... results in a substantial limitation of one or more major life activities for an extended period of time.” However, the effects of an impairment lasting or expected to last less than six months can be substantially limiting and the student could be eligible under Section 504.
Eligibility for special education under IDEA
TBI is one of the 13 categories of eligibility for special education listed in the IDEA. A student’s functioning post-TBI will inform whether you should offer an IDEA assessment.
TBI is defined as resulting in total or partial functional disability or psychosocial impairment, or both, adversely affecting educational performance, cognition, memory, attention, etc. TBI does not apply to congenital or degenerative brain injury, or birth trauma brain injuries (5 CCR § 3030(12); 34 CFR §300.7(12)). TBI could adversely affect the student’s educational performance, including their progress from grade to grade, their work and study habits, social skills, emotional functioning, focus, fine and gross motor skills, visual skills, and medical needs.
Offer an assessment plan with parent’s rights; keep documentation of the assessment plan and any correspondence, and follow up with parents if you do not receive consent - keep copies of your follow-up.
TBI eligibility & assessment
Assessments for TBI will almost always will include private medical information. Offer releases of information so that assessors can consider the private information. Sometimes, a psychoeducational assessment may not be sufficient after a student has suffered a TBI.
Private or district-obtained neuropsychological assessments may be necessary to identify the student’s needs. With a TBI, a student could be made eligible based on private medical report/information, but the district will still want to conduct their own evaluation.
FAPE for a student with TBI
An IEP must be developed in the least restrictive environment to address the student’s unique needs. Students with a TBI will encounter fluctuations in functioning - be prepared for a “fluid” IEP. Consider whether the student needs a health care plan - an IEP team may need to include the school nurse, especially for communications with medical doctors and recommendations. Also consider the need for assistive technology, transportation, and counseling.
Note that a student with a TBI may not realize their functioning, behavior, or social skills have changed or they may not be able to perform basic daily tasks. They may require aide support or the help of an expert on TBI to develop an appropriate IEP