By Sandi Rosenbaum, Educational Advocate, Littman Krooks LLP

Hundreds of thousands of students each year sustain concussions, a form of mild traumatic brain injury not detectable by scanning or imaging.  After an individual experiences a jolt or blow to the head, a physician or health practitioner must assess the student for physical or cognitive impairment that would indicate concussion.  Proper attention to recovery protocols is essential to promote a safe and, in most cases, complete recovery as soon as possible.

School districts do pay significant attention to concussions, particularly in the context of sports.  Many states, including NY, have strict laws and regulations to protect students from Sudden Impact Syndrome, in which a subsequent concussion during the recovery period may cause permanent brain damage or even death.  The New York State Education Department issued a 35 page guidance document in June, 2012 (Guidelines for Concussion Management in the School Setting) to assist public school districts in developing  mandated concussion policies in compliance with applicable law.  These policies pay particular attention to concussion identification by school personnel and require medical clearance for student athletes to return to physical activity in general and athletic competition in particular.

However, concussions sustained by hundreds of thousands of K-12 students each year affect not only their participation in physical education and athletics, but their learning processes as well.  Just as it is important to utilize a Return to Play protocol, to limit physical activity so as not to re-injure a recovering brain, it is just as important to limit cognitive exertion during the recovery period through a Return to Learning protocol, to avoid prolonging the recovery or developing permanent brain damage.  Moreover, Return to Learning affects every student, not only those who participate in athletics.

Following a well-publicized paper by the American Academy of Pediatrics in October 2013, the NYSED guidance document was modified in January 2014 to emphasize the importance of cognitive rest to avoid prolonging recovery or causing permanent brain damage.  The guidance document states, “Districts should have policies and procedures in place related to transitioning students back to school and for making accommodations for missed tests and assignments.”  However, it lacks specific guidance in terms of standardized procedures.

This area is still evolving.  Further, the medical literature and CDC and state guidance acknowledge that each individual, and indeed each concussion, is unique.  How do you know if someone recovering from concussion must avoid a certain activity?  Answer:  If the individual experiences symptoms when engaging in that activity.  Even with standardized guidelines in place, each student needs individualized, flexible accommodations to balance cognitive exertion and rest.  Some districts use commercially available computerized neuro-cognitive tests in determining readiness for Return to Play, but there is no systematic research to support their use in determining readiness for the cognitive demands of learning.

“[I]ncreasing cognitive activities are hypothesized to add additional stress to an energy-deprived brain, which may worsen symptoms.  The goal during concussion recovery is to avoid overexerting the brain to the level of worsening or reproducing symptoms.  Determining the appropriate balance between how much cognitive exertion and rest is needed is the hallmark of the management plan during cognitive recovery.    There is insufficient research on the role of cognitive rest …”  from “Return to Learning Following a Concussion,” Pediatrics, published online on October 27, 2013.

If your child sustains a concussion, what does he or she – and you – need to do to maximize chances of a safe and complete recovery?  What is the impact on his or her learning in the interim?  What is the school’s obligation to provide accommodations?   Here is some guidance: 

• Parents and students should notify school promptly of concussion and of medical recommendations as they evolve. The CDC notes that some symptoms may not show up for days following the injury (Returning to School after a Concussion:  A Fact Sheet for School Professionals).
• The guidance from Federal sources, echoed in the NYSED documents, is that students recovering from concussion should benefit from temporary accommodations. It is only when symptoms and effects linger beyond six months that schools are guided to look toward a Section 504 plan or possibly an IEP for more permanent accommodations and supports.  Unfortunately, New York State does not provide specific guidance for developing, documenting or communicating a temporary accommodation plan (which may last for most of a school year before consideration of a 504 plan is suggested).
• The medical literature acknowledges that a history of certain medical, psychological or developmental disorders may increase the symptomology or prolong the recovery. For these students, how do temporary accommodations interface with an existing IEP or 504 plan?  Again, New York State does not provide specific guidance.
• An additional wrinkle relates to testing accommodations. In New York State, testing accommodations can be authorized by means of an IEP or 504 plan, or by a school principal in the event of an injury sustained within 30 days prior to a test administration.  These rules were last published in 2006, long before current concussion policy was set in 2012, and do not contemplate testing accommodations by any other means.  This would suggest that a student in need of testing accommodations beyond the 30 day window for principal’s discretion would require a formal plan by the 504 or IEP team, contrary to Federal guidance to wait six months to consider a 504.  http://www.p12.nysed.gov/specialed/publications/policy/testaccess/policyguide.htm
• The OCR FAQ for 504 specifically states that “A temporary impairment does not constitute a disability for purposes of Section 504 unless … it results in a substantial limitation of one or more major life activities for an extended period of time. The issue of whether a temporary impairment is substantial enough to be a disability must be resolved on a case-by-case basis, taking into consideration both the duration (or expected duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual.

“In the Amendments Act (see FAQ 1), Congress clarified that an individual is not “regarded as” an individual with a disability if the impairment is transitory and minor. A transitory impairment is impairment with an actual or expected duration of 6 months or less.”  However, no criteria are provided to determine whether an impairment is minor.  Thus it is conceivable that a transitory impairment may not be minor and thus a 504 plan would indeed be appropriate for prolonged symptoms with a duration shorter than 6 months.

Unless symptoms are prolonged and severe enough to warrant referral to the CSE for potential curriculum modification or special education services, the guidelines suggest accommodations only.  Accommodations do not change the curriculum or the essential course requirements, rather, they provide for modification in the way information is presented to the student, or in the way that the student may demonstrate command of the course material (oral presentation instead of term paper, response to essay questions may be dictated, multi-day administration of final exam).  In certain cases, students may need additional time beyond the end of the marking period or school year to complete course requirements.

Sandi Rosenbaum is an educational advocate for the law firm, Littman Krooks LLP. The skilled group of attorneys and advocates at Littman Krooks handle special education litigation, transition planning and advocacy, school disciplinary matters, special education due process, special education private school reimbursement, and Section 504 accommodation advocacy. Littman Krooks maintains a strong reputation in the disability community due to continued client referrals and their ability to empower families through education and knowledge. The firm uses a proactive client-centered and person-centered approach that allows for tailored representation to our clients’ unique needs.

Learn more about our special needs planning and special education advocacy services at www.littmankrooks.com or www.specialneedsnewyork.com.

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