December 9, 2013

By U.S. and Electronic Mail

David B. Byrne, Jr., Chief Legal Advisor Office of the Governor, State of Alabama State Capitol 600 Dexter Avenue Montgomery, Alabama 36130	Margaret Fleming, Assistant Attorney General Office of the Attorney General, State of Alabama 501 Washington Avenue        Montgomery, Alabama 36104
Alice M. Henley, General Counsel Alabama Board of Nursing, RSA Plaza 770 Washington Avenue, Suite 250 Montgomery, Alabama 36104	Larry Craven, General Counsel Alabama Department of Education 5103 Gordon Persons Building Montgomery, Alabama 36130
Tom York, York Legal Group Alabama Board of Nursing 3511 North Front Street Harrisburg, Pennsylvania 17110	Afrika Parchman, General Counsel Birmingham City Schools 2015 Park Place Birmingham, Alabama 35203
Erika Perrone Tatum Counsel to Montgomery Alabama Schools Hill, Hill, Carter 425 South Perry Street Montgomery, Alabama 36104	John W. Rea Counsel to Saint Clair County Schools Trussell, Funderburg, Rea & Bell P.C. 1916 First Avenue North Pell City, Alabama 35125

Re:       The United States€™ Investigation Under Title II of the Americans with Disabilities Act with respect to Public School Children with Diabetes in Alabama, D.J. Nos. 204-1-72, 204-1-73, 204-1-74, and 204-2-59.

Dear Counsel:

We write to report the findings of the United States Department of Justice€™s (the €œDepartment€�)  investigation of the State of Alabama, including the Alabama Board of Nursing, the Alabama Department of Education, and the Alabama Attorney General€™s Office (collectively, the €œState€�), and of the Birmingham City School District, St. Clair County School District, and Montgomery County School District (the €œDistricts€�) for alleged violations of title II of the Americans with Disabilities Act of 1990 (€œADA€�), as amended, 42 U.S.C. §§ 12131 et seq., and its implementing regulation, 28 C.F.R. Part 35.  Under the ADA, no qualified individual with a disability shall, on the basis of disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.  42 U.S.C. § 12132; 28 C.F.R. § 35.130(a).  The State and the Districts, including their respective departments, agencies, or other instrumentalities, are public entities under the ADA and thus subject to the statute€™s nondiscrimination mandate.  See 42 U.S.C. § 12131; 28 C.F.R. § 35.104.  The Department is authorized to investigate the allegations in this matter and to file a civil action in federal court if the Attorney General finds that a violation of the ADA has occurred.  42 U.S.C. § 12133; 28 C.F.R. Part 35, Subpart F.

In the course of the Department€™s investigation, we determined that the State and Districts discriminate against, and interfere with the rights of, students with diabetes who use insulin and Glucagon.^[1]  This letter constitutes notice of our findings of fact and conclusions of law, and of the minimum steps that the State and Districts must take to bring their policies, practices, and procedures into compliance with the ADA, and to remedy past violations under the law.  See 28 C.F.R. Part 35, Subpart F.^[2]

I.  SUMMARY OF FINDINGS

We conclude that the methods by which the State administers its nursing practice standards, public school nursing programs, and related educational policies deny many Alabama students with diabetes an equal right to attend, and fully participate in, their local zoned schools. Against the backdrop of a significant shortage of school nurses due to budgetary constraints, the State prohibits school nurses from delegating diabetes care tasks to trained non-nurse school personnel, does not provide for reasonable modifications to the non-delegation policy, and expressly condones unnecessary forced transfers of students with diabetes to a school with a full-time nurse. By doing so, the State discriminates against, and interferes with the rights of, students with diabetes in violation of the ADA.  Indeed, our investigation found that local school districts, including particularly the Birmingham City School District, rely upon the State€™s non-delegation mandate, and guidance from the State Attorney General with respect to forced school transfers, to unnecessarily force students with diabetes to transfer away from their zoned schools.  Thus, the State€™s policies, practices, and procedures cause, aid, and perpetuate school districts€™ discrimination against students with diabetes.  Many of those school districts also fail to make reasonable modifications to prevent discrimination against students with diabetes on the basis of disability, including by denying participation in afterschool activities and field trips in the absence of a nurse or available parent.

Discrimination on the basis of disability by state and local government entities is prohibited under title II of the ADA.  Specifically, title II mandates that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.  See 42 U.S.C. § 12132; 28 C.F.R. § 35.130(a).  This mandate requires the State and local school districts to afford students with diabetes, and individuals associated with them, an equal opportunity to participate in or benefit from any aid, benefit, or service provided to others.  See 28 C.F.R. §§ 35.130(b)(1), (g).  And the State and local school districts cannot provide different or separate aids, benefits, or services to individuals with disabilities than is provided to others unless such action is necessary to provide qualified individuals with disabilities with aids, benefits, or services that are as effective as those provided to others.  28 C.F.R. § 35.130(b)(1)(iv).  Title II further prohibits public entities from aiding or perpetuating the discrimination of other entities by providing significant assistance to them, 28 C.F.R. § 35.130(b)(1)(v), and from utilizing criteria or methods of administration that have the effect of discriminating against students with disabilities (or that perpetuate the discrimination of another public entity, if both public entities are subject to common administrative control or are agencies of the same State).  28 C.F.R § 35.130(b)(3).  In addition, such entities must make reasonable modifications to policies, practices, or procedures when necessary to avoid discrimination, unless the public entity can demonstrate that doing so would fundamentally alter the nature of the service, program, or activity.  28 C.F.R. § 35.130(b)(7).  Moreover, under title V of the ADA, it is also a violation to interfere with any individual in the exercise or enjoyment of any right granted or protected by the ADA.  42 U.S.C. § 12203; see also 28 C.F.R. § 35.134(b).

Diabetes is one of the most common chronic diseases among school-aged children, affecting about 200,000 young people in the United States, with an estimated 19,000 youths diagnosed with type 1 or type 2 diabetes each year.^[3]  According to a 2010-2011 nurse survey by the Alabama Board of Nursing, there are over 2,000 students with insulin-dependent diabetes in the Alabama public schools.  While many children with diabetes are capable of testing their own blood sugar and administering their own insulin, others require assistance with, or supervision of, these tasks.  Additionally, children with diabetes who have a physician€™s order for Glucagon need someone to administer it to them in an emergency.

Alabama, like most states, does not staff a full-time nurse in every school.  Instead, many Alabama schools have €œmedication assistants€�^[4] who receive training by licensed, registered school nurses to assist with certain types of medical care and administration of medications.  These individuals, with some additional training, could safely administer insulin and the emergency medication Glucagon to students.  However, Alabama does not allow school nurses to delegate insulin and Glucagon administration to medication assistants or other trained non-nurse school personnel.[5]  As a result, students with diabetes have been unnecessarily forced to transfer away from their local schools to schools with nurses on site, and others have been unnecessarily excluded from full participation in school activities. 

Attendance at a child€™s zoned school or school of choice is a benefit generally afforded to Alabama school children.  Indeed, many parents, in selecting a home, place great importance on the school enrollment options for their home€™s location.  And most parents expect that their children will have the opportunity to attend school alongside their siblings and neighbors.  The ADA thus mandates that this same benefit be afforded equally to children with diabetes unless it is necessary to provide a different benefit to ensure that the aids, benefits or services of the education program are equally effective.  Yet, even though most children with diabetes can be well accommodated at their zoned school or school of choice, Alabama€™s non-delegation policy results in a denial of this benefit for many Alabama students with diabetes because, in the absence of a full-time nurse, these children are forced to transfer away from these schools.  This practice impermissibly precludes an individualized assessment of whether reasonable modifications would allow a student with diabetes to stay in his or her zoned school or school of choice without a full-time nurse present, in those cases where a parent and a child€™s physician or other qualified health care professional deem it appropriate to do so.  Such modifications which are used successfully in school districts throughout the United States may include training non-nurse school personnel to assist with a student€™s diabetes care, pursuant to a treating physician€™s orders.  Indeed, a large and growing number of states permit insulin and Glucagon administration by trained non-nurse school personnel, including, to name a few, Florida, Georgia, Louisiana, North Carolina, Oklahoma, Texas, California and Virginia.  

Because of the above violations of federal law, children with diabetes have been unnecessarily transferred from the schools attended by their siblings, relatives, and friends sometimes more than once, or in the middle of a school year.  Still others have been prevented from fully participating in field trips and after-school activities because nurses are not available, or forced to jump through unnecessary administrative hoops to enjoy benefits provided as a matter of course to other students without diabetes.  In addition, we have been advised that, as a result of these issues, some students with diabetes have adopted insulin regimens that entail less frequent injections, less effective control of blood glucose levels, and greater risks to their health.  These violations not only affect the students, but also their parents, some of whom have been forced to cut back on, or entirely forego, employment in order to home-school their child; drive their child to and from a new transfer school; or attend school-sponsored field trips, sporting events, and other afterschool activities so that their child may fully participate alongside his or her peers.  

II.  INVESTIGATION

This matter came to the Department€™s attention because we received a number of complaints from Alabama parents alleging that their local school districts were discriminating against their children and forcing them to transfer from their zoned schools because of diabetes.  In the course of investigating these complaints, we repeatedly heard accounts of school districts in reliance on State policies and directives prohibiting children with diabetes from attending their zoned school in the absence of a nurse.  Because these matters all stemmed from the school districts€™ application of State policies and directives, it became readily apparent that these complaints needed to be addressed by the State.  Accordingly, on January 28, 2013, the Department notified the State that we were opening an investigation of the State for alleged violations of title II of the ADA.  Among other things, we advised the State that we had information indicating that the State€™s policies, practices, and procedures were interfering with the rights of students with disabilities including, but not limited to, students with diabetes who use insulin and/or Glucagon who sought to attend their regularly zoned schools, regardless of the presence of a full-time nurse.  At that time we advised the State that we were also investigating complaints filed on behalf of three individual students with diabetes, then attending the Montgomery County, Saint Clair County, and Birmingham City school districts.  Our findings with respect to those investigations are summarized in Section V below. 

On February 19, 2013, we met with representatives of the State.  At that time, we set forth in detail our view that Alabama€™s prohibition on the delegation of diabetes care to trained non-nurse school personnel was resulting in discrimination against students with diabetes, and interference with such students€™ rights, in violation of the ADA and its implementing regulation.  Both prior to and following that meeting, the Department reviewed an extensive number of documents provided by the State and other sources.  We have also carefully considered three letters from the State, dated March 15, March 28, and June 28, 2013.  In those letters, the State asked the Department to stay our investigation pending completion of certain actions by the State.  The State also asked the Department to further explain the basis for our allegations.  We responded to many of the State€™s requests in our letter of June 3, 2013, and, by this letter, we set forth the basis of our findings in further detail. 

We appreciate the State€™s expressed willingness to work with the Department, but we disagree that the actions proposed in the State€™s March 15 letter would resolve the violations of the ADA that we have identified.  As explained in our June 3 letter, the State€™s proposals do not address the essential elements of our concerns.  The most germane proposal set forth by the State that it would study delegation of the administration of Glucagon fails entirely to address the rights of students with diabetes who use insulin and seek to attend their zoned schools.  The State€™s proposals do not address blood sugar testing or insulin administration during the school day and, in any event, may not result in any changes to current school policies or nursing regulations addressing the delegation of diabetes care in Alabama schools.  Notably, the State has never indicated, in correspondence or otherwise, that it would consider steps to address the gravamen of our concern:  the need to change State policies, practices, and procedures so as to require the training of non-nurse school personnel to assist students with diabetes care and to permit children with diabetes to attend their zoned schools if deemed safe and appropriate by their parents and qualified health care professionals.

III.  STATUTORY AND REGULATORY BACKGROUND

Congress enacted the ADA in 1990 €œto provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.€�  42 U.S.C. § 12101(b)(1).  In so doing, Congress found that the forms of discrimination encountered by individuals with disabilities include €œoverprotective rules and policies€� and €œexclusionary qualification standards and criteria.€�  Id. § 12101(a)(5).  Congress further determined that €œdiscrimination against individuals with disabilities persists in such critical areas as . . . education.€�  Id. § 12101(a)(3).  For these and other reasons, Congress enacted title II of the ADA, which prohibits discrimination against individuals with disabilities by public entities: 

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

Id. § 12132.  Children with diabetes have a disability under the ADA because diabetes, a physical impairment, substantially limits one or more major life activities including, but not limited to, the operation of the endocrine system, a major bodily function.  See id. § 12102; 28 C.F.R. § 35.104. 

Pursuant to a Congressional directive, 42 U.S.C. § 12134(a), the Department has issued regulations for title II of the ADA, which reflect the statute€™s broad nondiscrimination mandate.  See 28 C.F.R § 35.130(a).  Under the regulations, a public entity may not: (1) provide different or separate aids, benefits, or services to students with disabilities, unless necessary to provide such students with aids, benefits, or services that are as effective as those provided to others (or deny an individual with a disability the opportunity to participate in services, programs, or activities that are not separate or different); (2) limit students with disabilities in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others; (3) aid or perpetuate the discrimination of another entity; (4) utilize criteria or methods of administration that have the effect of discriminating against students with disabilities; (5) otherwise limit a qualified individual with a disability in the enjoyment of any right, privilege, advantage, or opportunity enjoyed by others receiving the aid, benefit, or service; or (6) exclude or otherwise deny equal services, programs, or activities to an individual because of the known disability of an individual with whom the individual has a known relationship or association.  Id. §§ 35.130(b), (g).  Title II also requires that a public entity make reasonable modifications to its policies, practices, or procedures when necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that doing so would fundamentally alter the nature of the service, program, or activity.  Id. § 35.130(b)(7).  These provisions require the State and school districts to, among other things, afford students with diabetes, and individuals associated with them, an equal opportunity to participate in or benefit from any aid, benefit, or service provided to others.  Id. § 35.130. 

Title V of the ADA makes it unlawful to interfere with any individual in the exercise or enjoyment of any right granted or protected by the ADA.  42 U.S.C. § 12203; see also 28 C.F.R. § 35.134(b).  State and school district policies that interfere with the rights of students with disabilities to receive an educational placement free of discrimination thus run afoul of the ADA and stand as an obstacle to the accomplishment of the full purposes and objectives of Congress in enacting the ADA.

IV.  FACTUAL BACKGROUND

A.    Diabetes Care in Schools

Diabetes is a chronic, incurable disease that prevents the human body from properly using food to produce energy.  Insulin, a hormone produced in the pancreas, transports glucose (a sugar derived from food) through the bloodstream to the cells.  In a person with diabetes, the body either produces no or insufficient insulin (type 1 diabetes), or cannot use insulin properly (type 2 diabetes).  All persons with type 1 diabetes and some with type 2 must take insulin to avoid serious short- and long-term health problems.^[6]  The three primary methods by which insulin is administered are insulin pen, syringe, and insulin pump.^[7]  The decision as to which delivery method is best for an individual is made by the treating physician or other qualified health care professional in conjunction with the patient and the patient€™s parents if a minor is involved.

Most insulin administered outside of hospitals and other clinical settings is administered by laypersons in accordance with a physician€™s directions, typically by the individual with diabetes themselves, or by family members.  Routine care typically includes checking blood sugar levels, calculating the appropriate insulin dosage using a basic mathematical formula, and injecting the correct insulin dosage as needed.  The goal of diabetes management for children is to avoid both hyperglycemia (high blood glucose) and hypoglycemia (low blood glucose) by maintaining blood glucose levels within target ranges determined by their physicians through frequent monitoring and multiple daily insulin injections.^[8]  Accordingly, students with diabetes who require insulin injections typically need them during the school day, both at regularly scheduled times and as needed to correct for fluctuations in blood glucose.  The need for insulin can arise anytime and anywhere in the classroom, on field trips, or during school-sponsored activities. 

Many children who are prescribed insulin are also prescribed Glucagon, a potentially lifesaving treatment for insulin coma or insulin reaction resulting from severe low blood sugar.  It works by telling the liver to release sugar (glucose) into the bloodstream to quickly bring the blood sugar level back up.  Glucagon is a pre-measured emergency medicine that is intended to be administered by trained laypersons.^[9]

B.     Alabama Nursing Standards

The Code of Alabama creates the Alabama Board of Nursing and enumerates certain duties and powers, including that €œ[t]he board may adopt, and, from time to time, revise such rules and regulations, not inconsistent with law, as may be necessary to carry out [Alabama Code Section 34-21-2: Board of Nursing Generally].€�  Ala. Code § 34-21-2(j)(1) (1975).  Pursuant to this authority, the Alabama Board of Nursing established the Alabama Standards of Practice for Licensed Practical Nurses (€œAlabama Nursing Standards€�).  The Alabama Nursing Standards specifically address delegation by school nurses, stating, in relevant part:

The specific delegated tasks shall not require the exercise of independent nursing judgment or intervention.  Specific tasks that require independent nursing judgment or intervention that shall not be delegated include, but are not limited to: . . . (b) [a]dministration of injectable medications, other than premeasured medication for allergic reactions [and] (d) [c]alculation of medication dosages other than measuring a prescribed amount of liquid medication or breaking a scored tablet. 

Ala. Admin. Code r. 610-X-7-.02(6) (2009) (emphasis added). 

Due to these nursing standards, school nurses in Alabama do not delegate the administration of Glucagon and insulin regardless of the method by which insulin is administered to trained non-nurse school personnel, such as medication assistants.   As a result, students who require insulin during the school day are being required to attend a school with a full-time nurse even when their medical needs may be well accommodated at their local school by other trained personnel.

C.     2006 Alabama Attorney General€™s Opinion

Because the Alabama Nursing Standards prohibit school nurses from delegating insulin and Glucagon administration to trained non-nurse school personnel, school districts in Alabama are forcibly transferring students who require the administration of insulin and/or Glucagon to schools with a full-time nurse, and they are doing so based on an understanding that it is required by State law.  During our investigation, school districts pointed to the Alabama Nursing Standards, read in conjunction with an Alabama Attorney General€™s opinion dated August 11, 2006, which was issued to the Montgomery County Board of Education (€œAttorney General€™s Opinion€�), as the basis for this practice of forced transfers.  This Attorney General€™s Opinion concludes that, in order to comply with the Alabama Nursing Standards, it is permissible for a local board of education, as standard practice, to place students with health conditions at schools other than their local zoned school, in the absence of a full-time school nurse.  The opinion states:  €œTo comply with the Alabama Board of Nursing Standards . . . the school district retains the authority to transfer a student who [it deems] requires nursing services to a school with a full-time nurse over the parent€™s or guardian€™s objection to the transfer.€�  Although the Attorney General€™s Opinion ostensibly lacks the force of law, it has, in fact, been widely circulated to school districts throughout the State and heavily relied upon by Alabama school districts as the basis for forced transfers of students with diabetes if their regularly zoned schools do not have a full-time nurse.^[10] 

D.    Alabama State Department of Education

The State Department of Education supervises and implements Alabama public school nursing programs.  To this end, the State Department of Education issues guidance and directives to city and county school districts in Alabama related to school health services and, at times, acts as a conduit of information between the Alabama Board of Nursing and the local school districts. 

The State Department of Education administers its school nursing program with the full knowledge that there are not enough school nurses in the Alabama public schools to meet the medical needs of its students.  For example, in an official memorandum from the State Superintendent to all city and county superintendents, the State Department of Education acknowledged issues surrounding the growing number of students in need of medical care in Alabama and inadequate State funds to address the related personnel needs, while simultaneously reiterating that administration of medicine by injection in schools may only be done by a nurse.  The State Department of Education thus implements a school nursing policy that, as applied in Alabama, in light of the State€™s budgetary constraints, leads to discriminatory treatment of students with diabetes.  As a result, the State Department of Education contributes to, aids, and perpetuates school districts€™ discriminatory policies of forced medical transfers of students with diabetes. 

E.     Alabama Legislative Findings

In 2012, the Alabama Legislature convened a legislative study committee to draft and propose €œSafe at Schools€� legislation addressing the delegation of diabetes care, including the administration of insulin and Glucagon, in schools.  The Alabama Senate Joint Resolution (SJR83) authorizing the study committee includes several key findings regarding diabetes care in Alabama public schools and delegation to trained non-medical school personnel of the authority to administer insulin and Glucagon.  These findings, consistent with those of the Department in this matter, include the following:

•   €œthe care of a student with diabetes usually requires management during the school day€�;
•   €œmany Alabama schools do not have a full-time nurse€�;
•   €œeven a full-time school nurse will not always be available due to absence, illness, or the need to treat the injury or illness of another student€�;
• €œwell-managed diabetes is . . . critical for students€™ ability to learn€�;
• €œa large and growing number of states permit insulin and Glucagon administration by trained school personnel€�; and
• €œthe delegation to trained non-medical school personnel of the authority to administer insulin and Glucagon has been found to be safe by the primary diabetes and pediatric medicine organizations, along with key education organizations and relevant government agencies, including, but not limited to: the American Academy of Pediatrics; American Association of Clinical Endocrinologists; American Association of Diabetes Educators; American Diabetes Association; American Dietetic Association; American Medical Association; Barbara Davis Center for Childhood Diabetes; Centers for Disease Control and Prevention; Children with Diabetes; The Endocrine Society; Indian Health Service, Division of Diabetes Treatment and Prevention; Joslin Diabetes Center; Juvenile Diabetes Research Foundation International; Pediatric Endocrine Society; National Association of Chronic Disease Directors Diabetes Council; National Association of Elementary School Principals; National Association of Secondary School Principals; National Education Association Health Information Network; National Institute of Diabetes and Digestive and Kidney Disease; Pediatric Endocrine Nursing Society; and U.S. Department of Education.€�

S.J. Res. 83, 2013 Leg., Reg. Sess. (Ala. 2012).  The State did not pass legislation to address this issue and the problem of diabetes care in Alabama public schools remains.

F.      Diabetes Care in Alabama Public Schools

In addition to the individual complaint investigations, summarized in Section V, below, we recently spoke with a number of parents of Alabama school children who are currently being denied the right to attend their zoned school, or otherwise have been adversely impacted by State and local policies related to diabetes.  Below are brief descriptions of some of their experiences in the Birmingham City School District:

1.      A middle school student with diabetes, whose zoned school is approximately one block away from her home, was forced to transfer to a school outside of her neighborhood that has a full-time nurse on staff.  Both the student and her mother objected to the transfer.  According to the mother, this student is able to self-administer her medication, and the mother is comfortable having her do so in the presence of trained non-nurse school personnel.  Additionally, although the student€™s physician ordered her to check her blood sugar before and after physical education, and she can do so herself, the school prohibits her from carrying the tools necessary for her to check her own blood sugar levels.  The school also does not allow her to carry her medication on the school bus or on her person during school.  Contrary to her mother€™s wishes, the student is not permitted to self-administer any of her medication, including when she shows signs of hypoglycemia.

2.      A middle school student with diabetes whose local zoned school does not have a school nurse was forced to transfer to a school with a nurse that is further away and out of walking distance.  Her sister, who was also transferred so that the two may be in the same location, is prohibited from taking the school bus.  As a result, the student€™s mother drives both children to and from school.  According to the mother, the student is capable of self-administering in the presence of a non-nurse who is trained in diabetes care and insulin administration.

3.      A middle school student with diabetes was forced to transfer schools in the middle of the school year, leaving all of his friends behind, because he was diagnosed with diabetes and consequently required by the district to attend a school with a full-time nurse.  The student is able to self-inject insulin and check his own blood sugar levels; however, he needs assistance calculating the insulin dosage and needs Glucagon administered in an emergency.  The bus ride to his new school was approximately two hours each way, sometimes longer, as he was the first student picked up and the last dropped off.  The length of the bus ride resulted in the student experiencing a drop in his blood sugar levels by the time he reached his destination, so his mother now drives him to and from school.  This requires her to leave work early every day.  In addition, the student is not allowed to carry his insulin and Glucagon with him at school.  He is also not allowed to have snacks or water in the classroom, or to leave class as needed to get food and water, to treat highs or lows.  The student€™s mother feels comfortable with a trained non-nurse administering or supervising the administration of her son€™s insulin, and prefers that to her son being forced to transfer out of his zoned school.

4.      An elementary school student with diabetes who has a full-time nurse at her zoned school still experiences discrimination because of her diabetes.  For example, the student is not permitted to attend field trips unless a parent accompanies her, simply because she has diabetes.  The school also will not allow the student to carry her insulin and Glucagon with her during the school day and on the bus, unless she can fully self-administer the medications without any supervision.  When her mother insisted that her daughter be permitted to carry her insulin and Glucagon with her during the school day for the child€™s safety, the school refused to provide any diabetes care to the student, placing full responsibility back on the family even though the child attended a school with a full-time nurse.  As a result, the family was forced to find a relative who was able to assist the student with her diabetes care throughout the school day.  The student€™s mother is comfortable having trained non-nurse school personnel assist her child with diabetes care, including administering insulin and Glucagon to the student. 

These examples only begin to touch on the daily human impact of the discriminatory policies adopted by Alabama school districts in reliance on guidance and directives from the State. 

V.  FINDINGS

We conclude that the State€™s and Districts€™ policies, practices, and procedures discriminate against, and interfere with the rights of, students with diabetes who use insulin and Glucagon, in violation of title II and title V of the ADA. 

Because attendance at a child€™s zoned public school is a benefit generally afforded to school children in Alabama, the ADA mandates that this benefit be afforded equally to children with diabetes unless it is necessary to provide a different benefit to ensure that the aids, benefits or services of the educational program are equally effective.  However, as a result of the Alabama Nursing Standards and the 2006 Alabama Attorney General€™s Opinion, as implemented by the State Department of Education and the local school districts, the starting presumption in Alabama today is that a child with insulin-dependent diabetes will be transferred away from his or her local zoned school in the absence of a full-time nurse, even in situations where that students€™ parents and physician agree that a nurse is unnecessary.  This is a matter of straightforward, impermissible differential treatment.  A local school district cannot treat children with diabetes differently from their siblings and peers by forcing them to transfer to a school with a nurse, unless necessary based upon the child€™s current medical data.  Generally, it will not be medically necessary for a student with diabetes to attend a school with a nurse when, for example, medication assistants or other trained school personnel can provide needed diabetes care or supervision if authorized by the student€™s parents and physician.  Indeed, it would be the rare case where a trained layperson could not provide needed diabetes care or supervision for a student with diabetes.  In any event, a child€™s treating physician or other qualified health care professional should be permitted to determine whether each particular child can be assisted in insulin administration by a trained layperson.

Moreover, it is axiomatic that children with diabetes would benefit, in their schools and elsewhere, from the presence of a number of adults who have been trained to understand diabetes, including how to identify and prevent hyperglycemia and hypoglycemia and how to assist students with the task of managing their condition.  Even if it were feasible and cost effective for Alabama to have a nurse present every day in every public school, such an individual could not be in multiple places at once and would not be available to assist every student at all times.  School nurses will always have multiple students to assist and cannot simultaneously be present at school and on a field trip.  Indeed, in Alabama, school nurses are not typically present for afterschool activities or sporting events.  Thus, the State€™s policy of prohibiting the delegation of diabetes care to trained non-nurse school personnel not only runs afoul of the ADA, it also creates risks to the health and safety of students with diabetes in Alabama.

A.    Factual Findings of the Department€™s Investigations of Three Individual Complaints Previously Identified to the State of Alabama and the Local School Districts

Prior to opening our investigation of the State, we investigated three individual complaints filed on behalf of students with diabetes who attended public school in the Montgomery County, Birmingham City, and St. Clair County school districts.  Our findings in each of these individual matters show how the discriminatory policies created by the State and implemented by school districts are affecting real families in Alabama, who are already challenged by their child€™s diagnosis with diabetes and who are simply seeking equal educational opportunities for their children, regardless of disability.  These findings are summarized below:^[11]

1.      Student A, an elementary school student with type 1 diabetes, was not allowed to attend her local zoned school, where her two younger siblings attend and that is just minutes away from their home, because the school did not have a full-time nurse.  The school district told her parents that they would only provide assistance with her diabetes care if she transferred to a school with an assigned nurse in a different town, a roughly 20 minute bus ride away.  In defense of its position, the school district gave Student A€™s parents a copy of the 2006 Alabama Attorney General€™s Opinion.  In addition, relying on the Alabama Nursing Standards, the school district refused to administer Glucagon and would not allow the family to store Glucagon at the school.  Notably, every school in Student A€™s district, including her school, has at least two staff members who are trained as medication assistants.  Student A is able to check her own blood sugar levels and administer her own insulin injections with supervision; however, she needs assistance calculating the insulin dosage and needs Glucagon administered in an emergency.  In the absence of a nurse, her parents would be satisfied with a trained non-nurse supervising and assisting with Student A€™s diabetes care, including administering insulin and Glucagon if needed.  Later, the school district agreed that Student A could attend her local elementary school, but only if her mother or other relative agreed to come to the school each day to administer her insulin injections and to accompany her on all school field trips.  This arrangement imposed undue hardships on the mother, as it severely limited her ability to work and find a job, and resulted in her working night shifts so she could be available throughout the school day.  After we opened our investigation of the State, the school district placed a nurse in Student A€™s school.

2.      Student B, a high school student with type 1 diabetes, was required to transfer from his local zoned school multiple times because of his diabetes.  Student B€™s requested modifications have included assistance from trained school personnel in administration of insulin, supervision when he was able to self-administer insulin, as well as assistance with the administration of Glucagon in an emergency.  Student B€™s mother has spent a number of years in conflict with her local school district over her son€™s right to attend his local zoned schools and to participate in activities on an equal footing with students who do not have insulin-dependent diabetes.  When Student B€™s mother disputed one of the forced transfers required due to her son€™s diabetes, she was told that the move was mandatory and that she would be subject to criminal charges if she refused the transfer.  In addition, Student B has been denied the right to attend field trips and severely encumbered in his ability to play football, unless his mother is present for practices and games.  Once again, after we opened our investigation of the State, the school district placed a nurse in Student B€™s school.

3.      Student C, an elementary school student with type 1 diabetes, was not allowed to attend her local elementary school because of her disability.  Following her diagnosis, Student C€™s parents were told she either had to transfer mid-school year to a school with a full-time nurse, which would involve busing the kindergartener to a different town and placing her in a separate school from her older sibling, or she could participate in a homebound program for the remainder of the school year.  Because Student C€™s parents did not want to transfer their daughter mid-year, they reluctantly opted for the homebound program, through which Student C received only four hours of instruction from the school district per week.  The following school year, the school district would only provide diabetes care to Student C if she transferred to a different school with a full-time nurse.  (The homebound program was not offered as an alternative.)  Notably, approximately one-third of the schools in Student C€™s district, including her local zoned school, do not have a full-time school nurse.^[12]  In addition, every school in Student C€™s district, including her school, has at least two staff members who are trained as medication assistants.  When Student C€™s mother disputed the transfer, she was told that the move was mandatory and that she would be subject to criminal charges if she refused the transfer.  As a result, Student C did not attend school for the first half of her first grade year, and her mother had to stop working for nearly a year so she could stay home with Student C.  Ultimately, Student C moved to a new school district where there is a full-time nurse at her zoned school.

As noted above, many months after the United States notified the State of these three investigations, a nurse was placed at the local zoned schools of Students A and B, and Student C€™s family moved to a different school district where there is a nurse assigned to her local school.  Notwithstanding these changed circumstances, each of these families suffered harm, including, but not limited to, emotional distress and loss of employment opportunities for the parents.  In addition, these findings are consistent with our broader findings explained below and further demonstrate how the State€™s policies operate in practice. 

B.     Systemic Violations of the ADA Due to State-Level Policies and Directives

We conclude that the methods by which the State administers its nursing practice standards, public school nursing programs, and related educational policies deny many Alabama school children with diabetes an equal right to attend, and fully participate in, their local zoned schools, in violation of the ADA.  These children are therefore aggrieved persons under the ADA, as are their parents.  Simply put, attendance at a child€™s local zoned school is a benefit generally provided to Alabama students who do not have diabetes.  But Alabama€™s policies and practices, taken together with a well-known shortage of school nurses, unjustifiably deny this benefit to many students with diabetes. 

Under title II of the ADA, the State must afford students with diabetes and other disabilities an equal opportunity to participate in or benefit from any aid, benefit, or service provided to other students.  Yet the Alabama Nursing Standards prevent school nurses from delegating the administration of either insulin or Glucagon to trained non-nurse school personnel, and the Alabama Attorney General€™s Opinion concludes that it is permissible for a board of education, as standard practice, to transfer students with health conditions to schools other than their zoned school in the absence of a full-time school nurse.  Our investigation revealed that this opinion is routinely relied upon by school districts as a basis for adopting a policy requiring all students with diabetes to attend a school with a full-time nurse and, as a result, for forcing students to transfer away from their local zoned schools if there is not a full-time nurse assigned.  Under these policies, when a school nurse is reassigned, or laid off due to budget cuts, Alabama school districts force students with diabetes to transfer yet again, sometimes mid-year.  Indeed, Alabama school administrators with whom we spoke understood the Attorney General€™s Opinion as a legal mandate requiring that every student with diabetes attend a school with a full-time nurse. 

In the context of (i) a limited budget, (ii) a shortage of school nurses in the public schools, (iii) a growing population of children with diabetes, (iv) a widely disseminated Attorney General€™s Opinion allowing forced transfers, and (v) no means to reasonably modify the prohibition on delegation when necessary to comply with the ADA, the State€™s non-delegation policy, as administered by and through the State Department of Education, has the effect of discriminating against students with diabetes by denying them an effective opportunity to participate in their local zoned schools.  The State thus discriminates against students with disabilities (and their families), interferes with students with diabetes€™ exercise of their rights, and aids or perpetuates discrimination by school districts.

 Moreover, allowing non-nurses to administer diabetes care would in no way make schools more dangerous for students with diabetes.  To the contrary, having more trained non-nurse school personnel would in fact make schools safer for children with diabetes, because the school nurse cannot be everywhere at once and may not always be available to assist every student at all times.  For example, in Alabama, school nurses are typically not present for afterschool activities and may not be available to go on field trips.  In addition, the State€™s policies result in a lack of broad-based support for children with diabetes, and a culture of ignorance among teachers, coaches, and other school staff who have daily contact with the children.  Training more non-nurses in schools, such as teachers, coaches, and administrators, would thus provide a healthier and safer school environment for students with diabetes.

C.     Widespread Violations of the Rights of Students with Diabetes by Local School Districts in Alabama, Including the Birmingham City School District

Relying on the State€™s policies, local school districts, including particularly the Birmingham City School District, are also violating the ADA by unnecessarily providing different benefits to students with diabetes and denying reasonable modifications necessary to prevent discrimination.  Most notably, students are prevented from attending their regular zoned school if it does not have a full-time nurse, even in situations where the parent and physician agree that trained non-nurse school personnel can assist with diabetes care, or where the student is able to self-administer insulin injections but needs Glucagon administered in an emergency.  As a result, Alabama school children with diabetes are experiencing multiple forms of disability-based discrimination by school districts.  These children are therefore aggrieved persons under the ADA, as are their parents.

Based on witness interviews, our investigation revealed that local school districts in Alabama among them the Birmingham City School District are further violating the rights of students with diabetes in a variety of ways, including, but not limited to, the following:

• Students are prevented from participating in school-sponsored sports, field trips, and other afterschool activities unless a parent is present or a school nurse is available. In most cases, school nurses leave the premises right after school and are unavailable for afterschool activities and sporting events.  As there is typically only one nurse assigned to a school, nurses are also often unavailable for field trips.  Because of the State€™s policies, schools are failing to train coaches, afterschool staff, and other non-nurse school personnel to assist with routine or emergency diabetes care.
• In addition, students are often prohibited from carrying snacks, medication, or diabetes-related medical supplies on the school bus or in their bag at school, preventing them from engaging in optimal self-care.  In some cases, students are even prevented from readily accessing food and water when needed to treat highs and lows during the school day.

Because of the above violations of federal law, some parents of children with diabetes have added transportation burdens and are even required to forego employment.  For example, forced transfers often create significantly longer bus rides (up to two hours for one student with whom we spoke) that create a potentially unsafe situation for a child with diabetes who may experience an extreme drop in blood sugar during the bus ride, but who is not permitted to carry any diabetes medications or other diabetes care supplies to treat him or herself.  As a result, parents are compelled to drive their children to school due to legitimate health and safety concerns.  Additionally, parents are frequently required to attend school-sponsored field trips, sporting events, and other afterschool activities due to the State€™s policies regarding diabetes care in schools and the absence of a nurse.  In some cases, parents have even agreed to come to school every day, multiple times a day, to administer diabetes care in order to prevent the school district from uprooting their child and forcibly transferring them away from their teachers, siblings, friends, and relatives which can cause their child added stress and negatively impact their diabetes.  In order to do so, parents have had to forego employment entirely or work odd hours due to the school district€™s refusal to modify its policies regarding diabetes care.

VI.  RECOMMENDED REMEDIAL MEASURES

To remedy the violations discussed above and to protect the civil rights of students with diabetes, the following minimal steps must be taken.

The State of Alabama must, at minimum:

1)      Modify the Alabama Nursing Standards to allow delegation of routine diabetes care to trained non-nurse school personnel in the school setting, including the administration of insulin by pen, syringe, and/or pump and the administration of Glucagon.

2)      Withdraw the Alabama Attorney General€™s Opinion condoning forced transfers by school districts and disseminate a letter to all school districts in Alabama to explain that this opinion has been officially withdrawn.

3)      Broadly disseminate to all relevant State agencies and to the superintendents, boards of education, and legal counsel for all Alabama school districts a legal advisory that articulates:

a.       School personnel, after appropriate training, are authorized to provide diabetes care, including administering insulin and Glucagon, to students in the State€™s public schools, pursuant to the orders of the student€™s treating physician or other qualified health care professional.  In the absence of a nurse, adequately trained school personnel may include medication assistants, school administrators, coaches, and others.  In addition, parents have a right to volunteer to administer insulin, but such a decision must be completely voluntary and free of coercion.   

b.      The appropriate criteria for a school district to consider when determining whether to transfer a student with diabetes for medical reasons.  These criteria must state, unequivocally, that the school district cannot force transfers to schools with a nurse, unless it is deemed medically necessary based on an individualized assessment that relies on objective medical data provided by the child€™s qualified health care professional as to the current health status of the individual child.  A child€™s own qualified health care professional and parent should generally be permitted to determine whether each particular child is able to self-administer insulin, be assisted in administering insulin by trained non-nurse school personnel, or requires the presence of a nurse.  A qualified health care professional€™s order requiring Glucagon and insulin administration, standing alone, should never be the sole reason for requiring a student to transfer to a school with a full-time nurse, as Glucagon and insulin can be safely administered by trained non-nurse school personnel.

c.       The rights of students with diabetes, including the affirmative ADA obligation of local school districts to make reasonable modifications to their policies, practices, or procedures when necessary to avoid discrimination on the basis of disability, and applicable rights under the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act.  Reasonable modifications may include, but are not limited to, permitting students with diabetes to: (i) independently carry and use diabetes supplies and medications during the school day and during all school-sponsored trips and afterschool activities, where sanctioned by their physician or other qualified health care professional; and (ii) carry and consume food and water throughout the school day and during school-sponsored trips and activities, as needed. 

4)      Monitor local school districts€™ compliance with federal law in accordance with the provisions of this letter, including the legal advisory described in number 3 above.  The State must also require school districts to notify parents of children with diabetes who have been required to transfer to a school with a nurse of their rights and provide them the aforementioned legal advisory.  This notice should also include a procedure by which parents may, if they choose, seek reevaluation of whether their child is able to attend his or her zoned school (consistent with the criteria outlined above), with trained non-nurse school personnel to assist with diabetes care.  Transfers back to a child€™s zoned school should not be required, but should be an option.

5)      Pay compensatory damages, including damages for pain and suffering, to the complainants and other aggrieved persons in an appropriate amount for injuries suffered as the result of the State€™s failure to comply with the requirements of the ADA.

The local school districts must, at minimum:

1)      Immediately end any policy of unnecessary forced transfers of students with diabetes and promptly initiate a diabetes care training program for relevant non-nurse school personnel, such as medication assistants, school administrators, coaches, and others.

2)      Reasonably modify policies, practices and procedures to permit students with diabetes to carry insulin, food, water, and/or Glucagon with them during the school day, on the bus, on field trips, and at after-school activities when requested by a student€™s parent or guardian.

3)      Notify parents of currently transferred students with insulin-dependent diabetes of the change in policy regarding diabetes care in schools and transfers of students with diabetes, as well as the procedure by which parents may, if they choose, seek reevaluation of whether their child is able to attend his or her zoned school (consistent with the criteria outlined above), with trained non-nurse school personnel to assist with diabetes care.  Transfers back to a child€™s zoned school should not be required, but should be an option. 

4)      Train school personnel on the rights of students with diabetes, including the affirmative obligation of local schools to make reasonable modifications to policies, practices, or procedures when necessary to avoid discrimination on the basis of disability.  Such modifications may include, but are not limited to, permitting students with diabetes to: (i) independently carry and use diabetes supplies and medications during the school day and during all school-sponsored trips and afterschool activities, where sanctioned by their physician or other qualified health care professional; and (ii) carry and consume food and water throughout the school day and during all school-sponsored trips and activities.

5)      Pay compensatory damages, including damages for pain and suffering, to the relevant complainant and other aggrieved persons in an appropriate amount for injuries caused by the school districts€™ failure to comply with the requirements of the ADA.

VII.  CONCLUSION

We hope that you will give this letter careful consideration and that it will assist in facilitating a dialogue to swiftly address the areas that require attention.  In the event that we are unable to reach a resolution regarding our concerns, the United States may take any appropriate action, including initiating a contested lawsuit pursuant to the ADA, 42 U.S.C. § 12133, to correct deficiencies of the kind identified in this letter.  We would prefer, however, to resolve this matter by working cooperatively with the State and the Districts to negotiate a court-enforceable agreement that brings the State into compliance with the ADA and assures that the above-cited violations will not recur.  To this end, the Department of Justice attorneys assigned to this investigation will be contacting the State€™s and Districts€™ attorneys to discuss this matter in further detail. 

Please note that this letter is a public document, and we will share a copy of this letter with all complainants, as required by 28 C.F.R. Part 35, Subpart F.  At any time, the complainants may file a private suit pursuant to Section 203 of the ADA, 42 U.S.C. § 12133, regardless of the contents of this letter and the Department€™s findings in this matter.

If you have any questions regarding this letter, please call Rebecca Bond, Chief of the Civil Rights Division€™s Disability Rights Section, at (202) 307-0663.