SECTION 504, THE ADA AND SCHOOLS

SECTION 504, THE ADA AND SCHOOLSBy Conde Kunzman Shasta County Office of Education

1134 C.F.R. 104 {Section 504}No otherwise qualified individual with a disability, shall, solely by reason off his or her disability, be excluded from the participation in, denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.221973 Rehabilitation Act - HistoryWidely recognized as the first civil-rights statues for persons with disabilities.Pocket vetoed twice by President Nixon when he left office in 1974During the 1976 campaign Jimmy Carter vowed to sign and implement the statue.33History - Carter did not sign the regulationsAmerican Coalition of Citizens with Disabilities (ACCD) organized national demonstrations.1975 PL 94-142 (Education of All Handicapped Children Act)The regulations were signed by Education Secretary Riley on April 5, 1977.

http://www.npr.org/programs/wesun/features/2002/50444AssumptionsMost educators have received minimal and often inadequate training in the identification of 504 eligible students.

Many educators feel this legislation is less important than IDEA

55Train Staff on ComplianceDocument all parental and teacher requests and concerns regarding a students performance (academic/behavioral) that could trigger 504 in writing!Designate a 504 Coordinator at site and district level.Attach all relevant documents to a students 504 plan (e.g. BIP or BSP) and provide copies to all personnel involved in implementation.66ComplianceDevelop and revise Section 504 forms. Encourage all districts to use the same set of forms.Train and calibrate substantial limitation across the SELPAIf a student is not making progress, revisit the current plan. Be proactive, not reactive!77Program AccessibilityWhere a disabled student is unable, even with accommodations, to participate in the extracurricular activity, 504 does not require a separate program to be developed.

(Snohomish (WA) School District. (OCR 1995) 23 IDELR 97)88 Program AccessibilityBEST PRACTICE! For non-educational programs, make sure eligibility requirements are strictly related to the ability to participate in the program. Be wary of any eligibility requirements that single or screen out disabled students.Do evaluate program accessibility

99Defensible discipline10

Defensible Discipline45-day removal does not require manifestation determinations to occur prior to the removals.

Caveat! 45-day removals only available for offenses involving weapons, drugs, or serious bodily injury.District may unilaterally change the placement of dangerous students with disabilities without conducting a reevaluation.1111 Defensive DisciplineCaveat! 504 students who are subject to discipline but are currently using illegal drugs lose their 504 protections, regardless of whether the conduct relates to their disability (e.g. alcohol addiction).504 students who currently use illegal drugs or alcohol can be disciplined in the same manner as general education students.1212 Defensible DisciplineSection 504 students are held to the same discipline standards as their nondisabled peers.

Caveat: 504 students who are being disciplined are entitled to the same procedural protections as special education students who are being disciplined.1313Defensible DisciplineConduct manifestation determinations as under IDEA. (34 C.F.R. 300.530 (e))Within 10 days deciding to change a students placement, the 504 team must meet to determine:If the misconduct was caused by, or had a direct and substantial relationship to the childs disability; orIf the misconduct was the direct result of the districts failure to implement the 504 plan. 1414 Defensible DisciplineChange of placement occurs when:Removal of more than 10 consecutive school days, orSeries of removals that constitute a pattern Total or more than 10 school days in a school yearBehavior substantially similar to prior incidents: and Additional factors such as length of each removal, total time of removals, proximity of removals to each other.Determined by LEA on a case-by-case basis.

1515Components of a 504 planTemplates are availableForms A-HBehavior Plan from PENT website16

Procedures & PoliciesSection 504 Plan An individualized program designed to meet the disabled students need for equal access and participation.

Components

Disability Nature of the disability and the major life activity it limits.Assessment Relevant data needed to assess the nature and extent of the disability.Educational Impact How the disability affects the childs education.1717Procedures & PoliciesProcedural Safeguards (34 C.F.R. 100.36) Right to have an evaluation that draws on information from a variety of sources.Right to be informed of proposed actions related to eligibility, placement, and plan for services (i.e., right to notice).Right to examine all relevant records, including those obtained through investigations and interviews.1818Procedures & PolicesProvide notice when proposing to assess a student for 504 eligibility or when declining to conduct an evaluation. Do not use special education forms.Notice should explain the action the district proposes to take, or declines to take, and the reasons why it has decided that way.Notice should be sufficiently detailed so that parents can meaningfully evaluate whether they wish to consent, refuse, or request a 504 hearing.

1919 Procedures & PoliciesRight to periodic reevaluations (annually)and an evaluation before any significant change in placement/program.Right to an impartial hearing, with right to be represented by counsel, if there is disagreement with the schools proposed action.Right to appeal 504 hearing decision.2020 Specific AccommodationsDistrict multi-disciplinary team must describe how the disability affects the students educational performance so that appropriate and specific accommodations can be written into the 504 plan.

Update the 504 annually (Best Practice)

2121Specific AccommodationsNarrowly tailor the accommodations to redress the substantial limitation.Not every child requires extra time and extra time can mean a variety to things.Preferential seating is different for different students.If student requires access to a computer for assignments, specify which categories or types of assignments.Focus on what accommodations are needed, not what is optional.

2222 Specific AccommodationsAssure parents that specific accommodations can be implemented:Tape recording: permission of personnelPeer note taker: need for willing student volunteerAssignments on a computer: access to a computerDetermine if other less intrusive accommodation will accomplish the same goal.Rely on teachers input as to what accommodations are too vague or too laborious to implement.

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DONT assume FAPE under Section 504 is the same as FAPE under the IDEA

2424Deliver 504 FAPEFAPE under Section 504 vs. the IDEA:Under 504, FAPE may consist of either regular or special education, and related aides and services, designed to meet the needs of disabled students as adequately as their non-disabled peers, as implemented by an appropriate means, including but not limited to an IEP.

Under the IDEA,FAPE consists of special education and related services, written on an IEP document to meet students unique needs.

2525504 FAPEFAPE under Section 504

Requires districts to design educational plans to meet the needs of disabled children to the same degree as for nondisabled children.

Obtaining monetary damages for a denial of FAPE requires a showing of intentional discrimination based on disability, or deliberate indifference.2626 504 FAPENote: Section 504 contains a LRE requirement nearly identical to IDEAs LRE mandate:Disabled students must be placed in the regular education environment unless it is demonstrated that such education, with the use of supplementary aids and services, cannot be achieved satisfactorily.[Letter to Williams]2727

Ensure that 504 evaluations meet procedural requirements

2828Properly Assess for EligibilityTwo main questions should be addressed when considering student eligibility under Section 504:

Is there a physical or mental impairment?Does that physical or mental impairment substantially limit one or more major life functions (e.g. reading, concentrating, walking)?2929 Properly Assess for EligibilitySubstantially limits is defined as:

Without accommodation and/or intervention, the student would not be able to equally access educational programs and activities.

Note: A student is not substantially limited simply because the student in not reaching his or her potential.

(T.J.W. by Butler v. Dothan City Bd. Of Ed.)

3030The Five Major Changes to Section 504Section 504s eligibility language should be read more broadly.The Section 504 Committee should consider impairments that are episodic or in remissionCongress added new major life activities, including major bodily functionsEEOCs definition of substantial limitation was rejected as too high a standardA new mitigating measures rule applies to substantial limitation.3131Public Law 110-325 1/1/2009Major Life Functions(A) a physical or mental impairment that substantially limits one or more major life activities caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working32

READ, the ADA Amendments Act

3333ADAAAADA Amendments Act (effective 1/09)Overturns a series of U.S. Supreme Court decisions, the new law is intended to reinstate a broad scope of protection for individuals with disabilities.Ensures that individuals who compensate for their disabilities are protected from discrimination.3434 ADAAABroadens major life activities to include:Caring for oneself, performing manual tasks, seeing, hearing, working, learning, walking, speaking, breathing, eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating.3535ADAAA New CriteriaOperation of major bodily function, including immune system, normal cell growth, brain, respiratory, endocrine, bowel, bladder, digestive, neurological, circulatory, reproductive.3636ADAAAClarifies that substantially limits does not mean significantly restricts.Toyota Motor Manufacturing vs Williams

Impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability

Impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.22 NDLR 92 (U.S. 2002)3737Mitigating MeasuresSomething a student can use without assistance from the schoolOCR has pointed out that mitigating measure should not be confused with reasonable adjustments auxiliary aids and servicesOffice of Civil Rights FAQ packet#21, #22, #2438ADAAARequires disability determinations to be made without considering mitigating measurese.g., medication, medical supplies, appliances, low-vision devices, prosthetics, hearing aids and mobility devicesexcludes ordinary eye glasses and contact lenses usually

3939Sutton (30 IDELR 681)Consider the impact of mitigating measures, for good and bad, when determining substantial limitation

Evaluate the individual as they are found4040Episodic ImpairmentsEpisodic impairments ebb and flow in here their severitySeasonal allergiesAsthmaMigraine headachesQualify if condition episodically arises to the level to a substantial limitation 4141Episodic 504 plansThe Section 504 Committee should state in the plan the trigger factors for each student with an episodic impairment that will both identify when to start the 504 services, and when the services are no longer necessary4242Episodic impairmentsThe school has a duty to evaluate where the impairment, although episodic, substantially limits a major life activity when active4343Episodic 504 PlansLook at the big picture of the school year, not just when active.If during the school year the condition rises to the level of a substantial limitation the school should evaluate

4444Eposodic Section 504 PlansSection 504 FAPE is supposed to level the playing field

Section 504 plan should be provided on an as needed bases4545Episodic/Technical 504 PlansStudent is not exited from Section 504 between episodesThe 504 plan is paused until needed again

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46Impairments in Remissionimpairment that is in remission is a disability if it would substantially limit a major life activity when active

Looks back the dormant impairment and asks how it would impact if active

4747Remission vs EpisodicRemission seems to mean conditions that are conditions that were once present but have not returned

Episodic means conditions are cyclic48

48Some Evaluation ConcernsHow would such a student be identified as in need of evaluation?

Assuming that the parents refer, or the school decides that a 504 evaluation should occur, how would the student be evaluated?4949Purpose of EvaluationIdentify need and determine service to meet the needAn impairment that no longer exists and is not expected to return but the guidance is not clear on this.5050Evaluation ConcernsHow would such a student be identified as in need of evaluation?

5151Some evaluation concernsQuestion 31 in the Q and AA recipientshall conduct an evaluation of any person who, because of handicap, needs or is believed to need, special education or related services before taking any action with respect to the initial placement of the person in regular or special education and any subsequent significant change in placement

5252Some Evaluation ConcernsWhere is the need triggering the duty to evaluate for a disability in remission?

No need = no duty to evaluate535354 IDELR (OCR 2009)The procedures also state that a student is not eligible under Section 504 as a student with a disability if the student does not need Section 504 services in order for the students educational needs to be met, which conflates the determination of disability with placement and services decisions, which should be separate.54543 Prongs of EligibilityAny person who:1. has a physical or mental impairment which substantially limits one or more life function

2. record of impairment -or-3. is regarded as having such an impairment34 CFR 104.355553 prongs of eligibilityIt is rare for [prongs 2 and 3] to be used in elementary and secondary student cases. They cannot be the basis upon which the requirement for FAPE is triggered.5656Evaluation ConcernsOnly those eligible under Prong 1 get a Section 504 plan and FAPE57

571evaluationAbsent school suspicion of need for services, there is typically no duty for the school to refer a student for Section 504 solely on the basis of an impairment in remission 58582evaluationShould the parents refer the student for an evaluation on the basis of an impairment in remission, the school must either evaluate the student or refuse to evaluate and provide notice of Section 504 rights to parent59593evaluationIf the student is eligible, determine whether a Section 504 plan is required

Eligibility and need for a plan are separate determinations

6060Properly Assess for Eligibility A student must be evaluated by the school and the appropriate professional staff in the students native language.

Information should be considered and documented from a variety of sources and materials.

District must provide relevant data needed to assess the nature and extent of the handicap, and recommend services, if any are needed.6161 Medical Eligibility If district receives a medical diagnosis, the appropriate staff member should contact the parent and medical provider, and conduct any supplemental assessment necessary to confirm the diagnosis. Remember Medical diagnoses alone may not be sufficient to trigger eligibility.Even if a disability is documented, one must still analyze whether it substantially limits a major life function.Cannot legally rely on only one assessment measurement item to determine eligibility.6262Remember that the Section 504 duty to evaluate is triggered when the school believes a student has a current disability-related need for service.

6363How do you screen out the positive impact of mitigating measures like medication?

6464The mitigating measures rule only applies to eligibility. It does not apply to the determination of whether the student needs a 504 plan.6565An exception:The Section 504 Committee must consider the positive impact of ordinary eyeglasses and contact lenses.Where the students vision is not substantially limited due to glasses, the student does not qualify6666Next steps67

1. So how should we proceed?Watch for clarifying official guidance on the impact of the ADA amendments to the functions and duties of public schools under Section 504.

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682. Update your Section 504 FormsIndicate your schools understanding of the ADAAAs emphasis on broad eligibilityRecognize the new major life functions including reading, and the inclusion of major bodily functionsRemove references to the EEOCs definition of substantial limitation69693. School and ParentRemember that the Section 504 duty to evaluate is triggered when the school believes a student has a current disability-related need for services.70704. Use Episodic/Technical 504 Plans Be careful denying eligibility to students whose conditions although episodic, can reach the point of substantial limitation when active

71715. Mitigating MeasuresUnderstand that the plain language of the changes requires Section 504 eligibility to be determined without regard to the ameliorative or beneficial impact of mitigating measures.72726. Calibrate substantial limitationTrain your employees so that they understand the changes you are making to your forms and procedures and the new approach to Section 504 eligibility.73737. Use RtI Effectively Continue to develop intervention services for all students and document your efforts.74748.Procedures & PoliciesBest PracticeWhen exiting a student from 504Reevaluate the student to confirm ineligibilityProvide parents with notice that student no longer qualifies for 504Document the basis for exiting the studentProvide procedural safeguards to parents/guardians7575Questions?76SECTION 504