Navigating Through Treacherous Waters

04/21/23Murphy, Lamere and Murphy, PC1

Navigating Through Treacherous Navigating Through Treacherous

WatersWaters

Paige L. Tobin, Esq.Paige L. Tobin, Esq.Murphy, Lamere and Murphy, Murphy, Lamere and Murphy,

P.C.P.C.

October 2009October 2009


Legal DevelopmentsLegal Developments

• 504504

• IDEA ProcessIDEA Process

• Unilateral PlacementsUnilateral Placements

Eligibility Under the IDEAEligibility Under the IDEA

• DisabilityDisability which results in which results in lack of progresslack of progress in in general education program and requires general education program and requires specialized instructionspecialized instruction

• CATEGORIES; Autism, Developmental CATEGORIES; Autism, Developmental Delay, Intellectual Impairment Sensory Delay, Intellectual Impairment Sensory Impairment, Neurological Impairment, Impairment, Neurological Impairment, Communication Impairment, Emotional Communication Impairment, Emotional Impairment, Physical Impairment, Health Impairment, Physical Impairment, Health Impairment, Specific Learning DisabilityImpairment, Specific Learning Disability


504 Eligibility504 Eligibility

Individual With a Disability:Individual With a Disability:

• physical or mental impairment which physical or mental impairment which substantially limits substantially limits

• a major life activity,a major life activity,

• has a record of such impairment,has a record of such impairment,

• is regarded as having an impairment,is regarded as having an impairment,

• needs accommodations to access needs accommodations to access programs run by publicly funded entities.programs run by publicly funded entities.


Major Life ActivitiesMajor Life Activities

1.1. Caring for oneselfCaring for oneself2.2. Performing manual Performing manual

taskstasks3.3. SeeingSeeing4.4. HearingHearing5.5. EatingEating6.6. SleepingSleeping7.7. Walking Walking 8.8. StandingStanding9.9. Lifting Lifting 10.10.BendingBending

11.11.SpeakingSpeaking12.12.BreathingBreathing12.12.LearningLearning13.13.Reading**Reading**14.14.Concentrating**Concentrating**15.15.Thinking**Thinking**16.16.Communicating**Communicating**17.17.WorkingWorking18.18.Operation of major Operation of major

bodily functionbodily function (**new under ADAAA)(**new under ADAAA)


New Definition of Substantially New Definition of Substantially LimitsLimits

• The definition of disability must be The definition of disability must be construed in favor of construed in favor of broad coveragebroad coverage under the Act. under the Act.

• Substantially limits means Substantially limits means materially materially restrictsrestricts (no longer substantially restricts) (no longer substantially restricts)

material = relevant and consequentialmaterial = relevant and consequential


What this means…..What this means…..

• An impairment that substantially limits one An impairment that substantially limits one major life activity does not need to limit other major life activity does not need to limit other major life activities in order to be considered a major life activities in order to be considered a disabilitydisability

• An impairment that is episodic or in remission is An impairment that is episodic or in remission is a disability if it would substantially limit a major a disability if it would substantially limit a major life activity when activelife activity when active

• Effect of the disability need not meet the Effect of the disability need not meet the stringent definition of “substantial” limitation as stringent definition of “substantial” limitation as construed by Courts prior to the ADAA.construed by Courts prior to the ADAA.


What this means……….What this means……….

• High academic performer can still have High academic performer can still have an impairment that substantially limits an impairment that substantially limits concentration/reading etc.concentration/reading etc.

Examples - dyslexic student with overall Examples - dyslexic student with overall good performance but who struggles to good performance but who struggles to read; ADHD student who can’t read; ADHD student who can’t concentrate when medicine wears off in concentrate when medicine wears off in afternoonafternoon


Mitigating MeasuresMitigating Measures

Under the ADAAA - Under the ADAAA -

Can no longer consider the Can no longer consider the ameliorative effects of mitigating ameliorative effects of mitigating measures in determining whether measures in determining whether an impairment substantially limits a an impairment substantially limits a major life activitymajor life activity


Cannot consider the Cannot consider the following:following:• Medication, medical supplies, equipment or Medication, medical supplies, equipment or

appliancesappliances• Low-vision devices, hearing devices, Low-vision devices, hearing devices,

mobility devicesmobility devices• ProstheticsProsthetics• Assistive TechnologyAssistive Technology• Reasonable accommodations or auxiliary Reasonable accommodations or auxiliary

aidsaids• Learned behavioral or adaptive neurological Learned behavioral or adaptive neurological

modificationsmodificationsEXCEPTIONS: ordinary eyeglasses, contactsEXCEPTIONS: ordinary eyeglasses, contacts


Examples of Mitigating Examples of Mitigating Measures:Measures:• Medication to ameliorate effects of ADHDMedication to ameliorate effects of ADHD

• FM system to ameliorate effect of CAP FM system to ameliorate effect of CAP

• Hearing aids or cochlear implantsHearing aids or cochlear implants

• Learned behavior – acquired strategies – Learned behavior – acquired strategies – students who compensate for LD but students who compensate for LD but perform wellperform well

When mitigating measures When mitigating measures means no accommodations means no accommodations necessary?necessary?Student is ELIGIBLE for a 504 Plan, butStudent is ELIGIBLE for a 504 Plan, but

Plan is not necessary because student Plan is not necessary because student requires no accommodations at this requires no accommodations at this time due to his use of mitigating time due to his use of mitigating measuresmeasures

-write no plan but establish timeline -write no plan but establish timeline to review need for accommodations, ORto review need for accommodations, OR

-write contingency 504 plan-write contingency 504 plan


How do schools assess How do schools assess substantial limitation?substantial limitation?

Can no longer compare to ‘most Can no longer compare to ‘most students?’students?’

Can no longer base decision only Can no longer base decision only on passing grades, MCAS on passing grades, MCAS scores, whether student can scores, whether student can perform grade level work? perform grade level work?


Use of RTIUse of RTI

Impact of broader standard under Impact of broader standard under ADAAAADAAA

-more students eligible for 504 plans?-more students eligible for 504 plans?

How to address? How to address?

-use of RTI and curriculum -use of RTI and curriculum assessmentsassessments

Use of District Accommodation Use of District Accommodation PlanPlan

• District-wide accommodation plan to District-wide accommodation plan to address diverse learning stylesaddress diverse learning styles

-market your plan to parents-market your plan to parents

-teach your staff-teach your staff


Tips for school staffTips for school staff

• Look at student’s academic and Look at student’s academic and behavioral records before use of behavioral records before use of mitigating measuremitigating measure

• Consider information about student from Consider information about student from outside of school settingoutside of school setting

• Consider why mitigating measures were Consider why mitigating measures were necessary in the first placenecessary in the first place

More TipsMore Tips

• Consider whole child in determining Consider whole child in determining eligibilityeligibility

• Consider multiple sources of informationConsider multiple sources of information

• Consider outside evaluations, but don’t Consider outside evaluations, but don’t rely solely upon themrely solely upon them

• Conduct own evaluationsConduct own evaluations

Remember: No entitlement to IEE at public Remember: No entitlement to IEE at public expense for 504 eligibility determinationexpense for 504 eligibility determination


Questions to Consider:Questions to Consider:

• What is the nature and severity of the What is the nature and severity of the impairment?impairment?

• What is the expected duration of the What is the expected duration of the impairment?impairment?

• How has the student responded to How has the student responded to interventions?interventions?

• Does the student consistently need extended Does the student consistently need extended time to complete assignments?time to complete assignments?

• Does the student consistently need Does the student consistently need significant changes made to the curriculum?significant changes made to the curriculum?

• Does the student demonstrate consistent Does the student demonstrate consistent behavior difficulties?behavior difficulties?

• Is there a pattern of absencesIs there a pattern of absences

Medical Diagnosis = Medical Diagnosis = Eligibility?Eligibility?

• Do not rely solely upon doctor’s Do not rely solely upon doctor’s diagnosis to determine eligibilitydiagnosis to determine eligibility

• Remember that district has an Remember that district has an obligation to consider multiple obligation to consider multiple factors, including educational factors, including educational functioning and needsfunctioning and needs


504 Team Process504 Team Process

• OCR guidance – use IDEA process as OCR guidance – use IDEA process as your templateyour template

• Evaluate! Don’t rely solely on Evaluate! Don’t rely solely on outside informationoutside information

• 504 is a TEAM process – those with 504 is a TEAM process – those with special knowledge of the childspecial knowledge of the child

• Document the team meetings, Document the team meetings, decisions, and reasons for decisionsdecisions, and reasons for decisions

• Document next steps and timelinesDocument next steps and timelines

Content of 504 PlansContent of 504 Plans

• The nature of the student’s disability The nature of the student’s disability and the major life activity it limitsand the major life activity it limits

• The basis for determining the disabilityThe basis for determining the disability

• The educational impact of the disabilityThe educational impact of the disability

• Necessary accommodations (including Necessary accommodations (including related aids and services)related aids and services)

• PlacementPlacement

AccommodationsAccommodations

• Define key terms and obligations in Define key terms and obligations in accommodation plansaccommodation plans

• Define who is responsible for Define who is responsible for implementing identified accommodationsimplementing identified accommodations

• Be careful of unnecessary or overly Be careful of unnecessary or overly burdensome accommodations burdensome accommodations

• Use ‘undue hardship’ test to evaluate Use ‘undue hardship’ test to evaluate reasonableness of accommodationreasonableness of accommodation

Specific Accommodation Specific Accommodation ConcernsConcerns

• Behavior PlansBehavior Plans

• Communication with ParentsCommunication with Parents

• Students with severe allergiesStudents with severe allergies

• Extracurricular activities - athleticsExtracurricular activities - athletics

• Field TripsField Trips

• TransportationTransportation

Implementing the PlanImplementing the Plan

1.1. Provide plan to all who Provide plan to all who needneed it it

-teachers (classroom and specialists)-teachers (classroom and specialists)

-substitute teachers-substitute teachers

-bus drivers/cafeteria workers-bus drivers/cafeteria workers

2.2. Document receipt of plan Document receipt of plan

3.3. Review plan at minimum annuallyReview plan at minimum annually

4.4. Document if student chooses not to accept Document if student chooses not to accept accommodations – address as necessaryaccommodations – address as necessary

Discipline and 504Discipline and 504

• Develop, implement and revise BIP Develop, implement and revise BIP as necessary as necessary

• Consider FBA if appropriateConsider FBA if appropriate

• Perform Manifestation Determination Perform Manifestation Determination for change in placement over 10 for change in placement over 10 days or patterndays or pattern

• No need to provide services during No need to provide services during periods of exclusionperiods of exclusion

EnforcementEnforcement

• BSEABSEA

• OCROCR

The best defense to a complaint The best defense to a complaint regarding violation of 504 is to show regarding violation of 504 is to show that the district has consistently and that the district has consistently and appropriately followed processappropriately followed process

New 504 Cases New 504 Cases

Bedford Public Schools, BSEA #09-5853Bedford Public Schools, BSEA #09-5853(Figueroa, September 14, 2009)(Figueroa, September 14, 2009)

Hampden-Wilbraham Regional School Hampden-Wilbraham Regional School District, BSEA#07-5701District, BSEA#07-5701(Putney-Yaceshyn, May 15, 2008)(Putney-Yaceshyn, May 15, 2008)

Boston Public Schools, BSEA#09-1007Boston Public Schools, BSEA#09-1007(March 23, 2009)(March 23, 2009)

ADHD and EligibilityADHD and Eligibility

• Consider eligibility under IDEA and Consider eligibility under IDEA and 504504

• Does student require specialized Does student require specialized instruction? instruction?

• Impact of medicationImpact of medication

Students with Students with Autism/Asperger’sAutism/Asperger’sDisordersDisorders• Can an ASD student be ineligible under Can an ASD student be ineligible under

IDEA but eligible under 504?IDEA but eligible under 504?

-impact of the Autism Statute 71B -impact of the Autism Statute 71B §3?§3?

-services versus accommodations-services versus accommodations


IDEA Process IDEA Process Top Ten IEP MistakesTop Ten IEP Mistakes

1.1. Eliminating needed services/supports Eliminating needed services/supports on IEP because Parents do not want on IEP because Parents do not want themthem

2.2. Adding unnecessary services/supports Adding unnecessary services/supports because Parents insist on thembecause Parents insist on them

3.3. Goals and benchmarks that are the Goals and benchmarks that are the same year-to-year same year-to-year

4.4. Goals that are not truly measurableGoals that are not truly measurable5.5. Careless accommodations listCareless accommodations list

Top ten, continuedTop ten, continued

6.6. Failing to include student’s functioning in out-Failing to include student’s functioning in out-of-school settings (for ASD, SED students) of-school settings (for ASD, SED students)

7.7. Failing to document coordination/consultation Failing to document coordination/consultation between service providersbetween service providers

8.8. Failing to show consideration of outside evalsFailing to show consideration of outside evals

9.9. Failing to consider transition Failing to consider transition

10.10.Failing to attach a well-drafted N1Failing to attach a well-drafted N1

Unilateral Placements: Unilateral Placements: The Warning SignsThe Warning Signs

• Student who is or has been socially isolatedStudent who is or has been socially isolated• Student who has markedly increased Student who has markedly increased

absences absences • Parents who are clearly and increasingly Parents who are clearly and increasingly

unhappy and tell you and everyone elseunhappy and tell you and everyone else• Student who tells the teacher that he is going Student who tells the teacher that he is going

to a new school or checks outto a new school or checks out

Pay particular attention in the early Spring Pay particular attention in the early Spring before a transitionbefore a transition

Unilateral PlacementsUnilateral Placements

Steps to take to avoid unilateral placements:Steps to take to avoid unilateral placements:

1.1. Listen and respond to Parents’ concerns re: student in Listen and respond to Parents’ concerns re: student in community and home settingscommunity and home settings

2.2. Consider recommendations from outside evaluators and Consider recommendations from outside evaluators and have district staff communicate with evaluatorhave district staff communicate with evaluator

3.3. Use your best salesperson to sell your program – Use your best salesperson to sell your program – teacher’s credentials, curriculum, visits to programteacher’s credentials, curriculum, visits to program

4.4. Ensure coordination between service providersEnsure coordination between service providers5.5. Consider use of periodic standardized tests and Consider use of periodic standardized tests and

curriculum assessments to track progress, document curriculum assessments to track progress, document progress, communicate with parentsprogress, communicate with parents

6.6. Produce a solid IEP before the student leavesProduce a solid IEP before the student leaves

Unilateral Placements Unilateral Placements

What to do after notice of unilateral What to do after notice of unilateral placement?placement?

Review and revise IEP as necessary and Review and revise IEP as necessary and present to Parents – the Cadillac version present to Parents – the Cadillac version and don’t wait for the annual review date and don’t wait for the annual review date

Collect work samples, tests, emailsCollect work samples, tests, emails Continue IEP process, i.e. meetings, Continue IEP process, i.e. meetings,

evaluations on scheduleevaluations on schedule

Navigating Through Treacherous Waters

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