Masking has become a polarizing “hot button” issue as schools in Nebraska and South Dakota reopen this fall. Many boards of education have started the school year with, or are considering moving to, requiring all students to wear masks or other face coverings while at school. Some families have responded to universal masking rules by providing a doctor’s note or other document seeking to show that a particular student has a medical condition preventing him/her from wearing a mask. Some students who have not previously raised health concerns may now reveal a medical condition that they believe should excuse them from masking requirements. Unfortunately, some of these are legitimate medical needs and others are attempts to bypass masking requirements for political or other reasons. How does an educator with a million other things going on sift through it?!
As a result, we are getting this question from clients repeatedly: if a student has a doctor’s note, is he/she entitled not to wear a mask? As with most legal issues involving students with disabilities, the legal answer is not a simple “yes” or “no.” Instead, these requests should trigger your process for identifying and accommodating students under Section 504 of the Rehabilitation Act. Although it may seem like additional work, the benefit of the process around the request makes it easier to handle them consistently and to receive the deference schools are entitled to when following the proper process.
Both Section 504 and the IDEA require schools to find and evaluate students who are believed to have disabilities. When a parent tells you that their child has a medical excuse not to wear a mask, the parent is also giving you notice that the student suffers from a physical or mental impairment, which triggers your obligation to conduct a 504 evaluation.
If the school is notified that a student has a medical condition significant enough to support waiver of a universal masking rule, schools must take the following steps:
promptly seek parental consent to evaluate under Section 504;
hold a Section 504 Committee meeting to determine if the student is “disabled” as that term is defined by Section 504; and, if so,
create a Section 504 plan for students who qualify as “disabled” under Section 504, if the child’s disability requires a reasonable accommodation to access the school’s programs and activities.
Students who already have a Section 504 Plan or an IEP should have any needed accommodations to mask rules addressed in those existing plans after the committee or IEP team holds a meeting to discuss the new accommodation requests.
The good news in all this is that the 504 evaluation process is much less formal than the IDEA process. The bad news is that this means your 504 committees bear a lot of responsibility for making this decision on their own. The worse news is that you cannot simply create a “health care plan” and call it good; the Office for Civil Rights has repeatedly found that students with health care plans should be given the opportunity to instead have a plan under Section 504, because they are entitled to the procedural safeguards of Section 504 if they have a qualifying disability.
If your district has a robust Section 504 process, you should be able to use that same system for students seeking waiver of universal masking rules or other disability-related accommodations due to the pandemic. If you are uncertain about how that would look, or if you are a little rusty on the whole Section 504 bit, KSB does have a detailed memo, forms and COVID-19 samples available. Just let us know if you need help. For districts that purchase the 504 forms, we will also share a link to a short Section 504 refresher course, which is about 30 minutes long.