My daughter, who is in the third grade, has been tested for the gifted program three years in a row. The second stage of the testing requires taking a standardized test outside of her normal classroom. They did not test her sugar levels before the test and her results did not qualify her for the program. I am wondering what legal leg I have to stand on since they have told me that they will not retest her when we know her sugar levels are normal. Right now, we do not know where her sugar levels were before the test. I am asking them to be fair about it and retest her when we know her sugar levels are normal. I feel they are discriminating against her by not re testing her. Also, a 504 plan was not in place, but an IEP was as well as forms required from her endocrinologist. When we tried to set up a 504 several years ago, we were told by the school system it was not an issue until they get to middle school. I have contacted the gifted teachers supervisor and told her that I will file discrimination charges against the school system if she is not retested. Am I right or wrong?

To ensure that students with diabetes are performing optimally on academic tests, parents should consider including a provision in their child’s 504 Plan, IEP, or other written plan that would give the child the option of taking a test at another time if blood glucose levels are out of target range. It needs to be made clear in the plan on how this provision will be implemented. Will the child check blood glucose levels before a test? How far outside of target range is acceptable for the individual child before cognitive ability is impacted? Make sure the agreement reached on this point between parent and school is well documented in your child’s written plan. In this particular situation, does the parent have documentation indicating blood glucose levels were outside of target range either shortly before, during, or shortly after the subject test? Was a provision included in this child’s IEP that required the school to make sure that blood glucose levels had been checked and documented prior to the test?

A child attending a public school or school receiving federal funds is eligible for services under Section 504 if the child has a mental or physical impairment (such as diabetes) that substantially limits (meaning that the child is unable to perform or restricts performance) a major life activity (eating, walking, caring for oneself, metabolism, learning, etc). Once the child is determined 504 eligible by the school’s 504 team, then a 504 Plan should be developed. The ADA recommends that parents seek this determination and develop a 504 plan upon enrollment. What is the school’s rationale for not developing a plan for an elementary school aged child? Why middle school and not elementary school? More information is needed.

For more information call ADA at 1-800-DIABETES and check out ADA’s web site page on School Discrimination

CJ
Additional comments from David S. Holtzman, Esq.:

Legal advice concerning your rights and responsibilities specific to your situation should only be provided by an attorney licensed to practice law in your state with experience in matters dealing with the rights of the disabled or education law. Some issues that one in a similar situation could explore is if the parent were provided notice of the upcoming test and as well as provided the opportunity to be present for the purpose of testing the child’s blood glucose level prior to the administration of the test. With that said, I question if a school has a duty to test a child’s blood sugar level prior to administering any academic test. I do not have sufficient background to determine when a retest is permitted or if the opportunity to evaluate the child’s readiness for the test based on blood sugar level is a required “reasonable accommodation.” Further, I was not aware that schools could put off developing 504 plans for school age children who might otherwise qualify for services.

DSH