SECTION 504 1973 REHABILITATION ACT Americans with Disabilities Act Amendments Act of 2008: Implementing Section 504 as Amended by the ADAAA08 Grant Wood.

SECTION 5041973 REHABILITATION ACTAmericans with Disabilities Act Amendments Act of 2008:Implementing Section 504 as Amended by the ADAAA08

Grant Wood AEAFall, 2012

Materials for this presentation are being used/reprinted with permission of:

James F. McKethan, LLC

Microscribe Publishing

910-946-6840

[email protected]

Section 504

Section 504, as it is often called, is a civil rights law that covers the rights of all individuals with disabilities, not just school-aged children. It prohibits disability discrimination by any program or activity that receives federal funds.

1. Mental or physical impairment

2. Substantially limiting in

3. One or more major life activities

What is it? The Criteria

“Meet Your Student” Scenarios

Introduce yourself to those at your table.

You have a received a referral for a 504 (see scenario cards).

Discuss your initial thoughts on the scenario

Complete Box #1 on your recording sheet

Be thinking about your scenario as we work through the information this morning. You will revisit the scenario in the second part of the morning.

Equal Opportunity…

Nothing is more unequal than

the equal treatment ofunequal people…

Lau V Nichols

© Copyright 2009 James F. McKethan, LLC

Section 504Section 504Protection Against DiscriminationProtection Against Discrimination

No otherwise qualified individual with a disability…Shall, solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal assistance. 29 USC § 794

Discrimination is the exclusion from participation in, the denial of benefits of, any program or activity receiving or benefiting from federal financial assistance. Students may not be denied participation in or be denied benefit from services that are afforded nondisabled students. 34 CFR §104.4


Equal Education Opportunities

An appropriate education is a program designed to meet the individual educational needs

of individuals with disabilities as adequately as the needs of nondisabled students are met.

Free Appropriate Public Education

34 CFR §104.33(b)(1)(i)


The School District’s Obligations

Appropriate Regular education,

or Special education

and related aids and services

34 CFR §104.33(b)(1)

How far do school officials need to go to comply with this requirement?


ADA Amendments Act of ADA Amendments Act of 20082008

Reverses effect of Supreme Court decisions

Envisions a broad umbrella of coverage

Lowers bar for showing that an impairment substantially limits

Makes clear that eligibility for impairments that are episodic or are in remission is based on a substantial limitation when active.

Expands list of major life activities

Prohibits consideration of mitigating measures

Clarifies third prong, “regarded as,” definition of person with a disability

Makes clear that reasonable accommodations are not required for persons regarded as disabled

Makes clear that minor and transitory impairments are not protected disabilities


Effective January 1, 2009

IDEA and Section 504 Comparison

Child Find Consent for

Evaluation Re-evaluations LRE IEP Team Special Education Culture, Economic &

Environment Discipline -

Manifestation

Child Find Consent for

Evaluation Re-evaluations LRE 504 Team Special Education Culture, Economic &

Environment Discipline -

Manifestation

IDEA Section 504


IDEA and Section 504 Comparison

Funding statute Discrete categories of

disabilities Procedural Due

Process “Pure” Section 504

children are not covered under IDEA

IEPs reasonably calculated to convey educational benefit

Consent for Placement Annual review

Non-funding statute Broadly defines disabled

children Procedural Due Process All IDEA children are

covered by Section 504 Meet the needs of

disabled students as adequately as the needs of non-disabled students are met

No consent required No annual review

required

IDEA Section 504


Administration & Enforcement

Section 504 of the Rehabilitation Act of 1973 is administrated by the US Department of Education’s Office of Civil Rights.

State departments of education have no enforcement authority for issues arising under Section 504.

Local districts must identify the person responsible for ensuring compliance.

Section 504 provides procedural safeguards.


General Notice School districts shall

provide notices of discrimination in admission or access to, treatment or employment in, its programs and activities and shall

Identify the official responsible for ensuring compliance with Section 504

34 CFR §104.8


Document A

When to Consider a Referral

A parent makes a request for an evaluation or for a 504 plan.

Suspension or expulsion is being considered. Academic performance is lower than expected. A student is evaluated and is not IDEA eligible. Student exhibits an on-going medical problem. Students enroll with a 504 plan from another

district. An impairment of any kind is suspected. A student is chronically absent due to

medical/health issues. A student receives medication on school

grounds. A student formerly found not eligible due to

mitigating measures.

The events listed are occasions when the existence

of a disability should be considered and do not imply that the student is 504 eligible.


Adapted from: Student Access, A Resource Guide for Educators, CASE

Docu

men

ts B

& C

Procedural Safeguards

Notice regarding identification evaluation or educational placement

Opportunity to examine relevant records

Impartial hearing opportunity for

participation by parents representation by legal

counsel a review procedure

Compliance with IDEA procedures is one means of meeting the 504 requirement

34 CFR §104.36


Docu

men

t(s

) D

Assemble The 504 Team

Ensure that the eligibility decision is made by a group of persons knowledgeable about:

the child the meaning of the

evaluation data available

accommodations

34 CFR §104.35(c)(3)


ADAAA 2008 & Evaluations

What evaluation information will you use to assess reading, thinking, sleeping, and concentrating, etc.?

What funding is available to pay for evaluations?

How do you determine whether MLA/MBF limitation is the result of mitigating measures?

Is it permissible to use the special education evaluation system for Section 504 evaluations?

Is the special education evaluation system an option?


In interpreting evaluation data and in making decisions:

• draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior,

• establish procedures to ensure that information obtained from all such sources is documented and carefully considered.


Document E

School & Classroom PerformanceInformal Evaluation Data

Evaluation

Evaluation must be

Validated for their intended use.

Administered in conformance with instructions provided by their producer.

Tailored to assess specific areas of educational need.

Accurately reflect the student’s aptitude or achievement level, etc., rather than sensory deficits, e.g., impaired sensory, manual, or speaking skills…

Examples

Scholastic record Report cards Work samples State assessment results Psychological evaluation Norm referenced

educational assessments Curriculum-based

assessment Structured academic &

behavioral interventions Social and health history Information provided by

parent

34 CFR §104.35 (b)


Before Entering the Eligibility Process . . .

If concerns are purely academic or behavioral, the student is provided interventions through IDM/RTI and an evaluation based on information from a variety of sources before proceeding

If a student has significant physical or mental health concerns, consider proceeding without accessing the IDM/RTI process

A Referral Process


Mental and Physical Impairments

any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or

any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

34 CFR §104.3 (j)(2)(i)


Mental and Physical Impairments

Non Verbal Learning Disorder

Central Auditory Processing Disorder

Pregnancy

Obesity Slow Learners Alcoholism Drug Addiction

34 CFR §104.3 (j)(2)(i)

What about the following?


I’m Tyler

Major Life Activities

“Major life activities” means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working

The ADAAA08 added: reading, concentrating, thinking, sleeping, eating, lifting, bending, communicating and the operation of a major bodily function such as the immune system, normal cell growth, digestive, bowel, bladder functions

When is a function or activity a major life activity?

34 CFR §104.3(j)(2)(II) amended by the ADAAA of 2008


Cultural, Environmental and Economic Factors

Homeless Migrant ESL Poverty Cultural factors Attendance Problems

Transiency Divorce Death of a family

member and other family crises

Military deployments

34 CFR §104 Appendix A Analysis of Final Regulation

“The first of the three parts of the definition (of a disabled person) specifies that only physical and mental disabilities are included. Thus, environmental, cultural, and economic disadvantage are not themselves covered.”


Mitigating Measures

Many students who come before the 504 team are taking prescribed medication to mitigate the effects of the impairment.

Students who experience no substantial limitation in any major life activity when using a mitigating measure does not meet the definition of a person with a disability and would not be entitled to FAPE under Section 504.

The corrective effects of mitigating measures

cannot be considered in determining whether

or not a person is disabled.

ADA Amendments Act of 2008


Scenario Practice

What existing evaluation data would you look at? (Complete Box #2)

What evaluation data do you need to obtain?

What is the impairment? Identify the Major Life Activity

(MLA). What other factors would you

consider?

The 504 Eligibility Standard

…When a school improperly identifies a student…It not only mislabels the student, it opens the door to a host of procedural obligations and potential legal liabilities

Jim Walsh, “Compliance Keys,”

Section 504 Compliance Advisor, April 2007© Copyright 2009 James F. McKethan, LLC

Not IDEA Eligible?

Section 504 eligibility is not a consolation prize for students who do not qualify for special education

Perry Zirkel, Lehigh University


Determine Section 504 Eligibility CFR 1630.2(j)(2)

Evaluation Information

Mental or Physical Impairment

MLA performance restricted when compared to performance of a nondisabled student

Eligibility Decision


Docu

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t F

Consider connections

Barriers to

Learning

Learning Learning SupportsSupports

Successful in School

Core InstructionRange of Learners

= Motivationally ready & able to learn

1

2 =

Encounter some barriers and may be lacking prerequisite knowledge & skills

3 =

Encounter complex and intensive barriers to learning

Focusing solely on instruction will not

help students in groups 2 & 3 succeed

Scenario

Based on the evaluation data you have, is the student eligible for a 504? (Complete Box #3) To what extent is the student limited in

comparison to his/her non-disabled peers? What would you present as justification

for the eligibility?

Considerations for Accommodations/Services

Does the student require more time for homework and in-school assignments?

Are modified assignments necessary? Subject matter, types of assignments, testing, etc.?

Are there instructional and social behaviors that need to be addressed?

Does the student have substantial difficulty organizing, planning and completing assignments?

Is the student chronically absent? For what reasons?

Is there a steady increase in disciplinary incidents?

Does the student require specialized health management? If so, what intervention and at what frequency?


Possible Accommodati

ons List

Criterion for Appropriate Accommodations/Services

Designed to address specific major life activities/major bodily functions in which a substantial limitation is documented.

Designed to meet individual educational needs of handicapped persons as adequately as the needs of nondisabled students.

34 CFR 104.33(b)(1)


Guidelines for Accommodations

Ensure the service, accommodation or adjustment is supported by evaluation data.

Write clear and specific accommodations: Leaving no room for interpretation, avoid open-ended accommodations, and avoid giving teachers discretion to implement.

Accommodations for state assessment must be used regularly in the instructional program

Ensure teachers understand the accommodations: Clarify terminology, e.g., preferential seating,

extended time, etc., provide training, if necessary, and develop a teacher accountability protocol.

34 CFR 104.33(b)(1)


Docu

ments

G &

H

Scenario

What are 2-3 appropriate accommodations for the student? (Complete Box #4)

What are the possible unintended consequences of each accommodation?

Section 504 Re-Evaluation

The District must establish re-evaluation procedures.

The re-evaluation must be conducted on a periodic basis.

A re-evaluation procedure consistent with the special education re-evaluation requirement is one way of meeting Section 504 requirements.

Conduct a re-evaluation prior to any significant change of placement.

34 CFR §104.35 (d)


Best Practice Review Annually and if the student’s

situation changes (condition gets better or worse, transition, etc.)

Re-Evaluate every three years Consider dismissal if student is no

longer substantially limited or if services move to an IEP.

Discipline

A handicapped student may not be suspended for more than ten days w/o a manifestation hearing, e.g., determination that misconduct is not caused by the disability

The determination is made by the Section 504 team

The manifestation determination is a reevaluation

Must take into account recent evaluation data that provides an understanding of the student’s current behavior

OCR: Long-term Suspension or Expulsion, 1988


Long – Term Suspensions

The principal may initiate disciplinary procedures for 504 students when the misconduct is not directly caused by the disability.

The 504 team may modify the current educational placement when the misconduct is directly caused by the disability. If appropriate, an alternative educational placement may be considered.


Discipline and Substance Abuse

Current drug users are excluded from the definition of handicapped under Section 504 & the ADA.

Current drug and alcohol users are subject to the same disciplinary action to the extent applied to non-handicapped students for similar code of conduct infractions.

OCR: Staff Memo, 1991, 17 IDELR 609


504 Hazards & Catch 22’s

Murky procedures High-stakes enterprise Over-identification Failure to identify children Providing 504 plans in lieu of

IEP’s Not following procedures Refusing to implement

Accommodation Plans


There is disagreement among the team

members.

Now what?

34 CFR §104.36


Minimize Conflict with Parents

Act promptly on parental requests for evaluations.

Develop a parent-friendly brochure outlining the 504 eligibility standard and the step-by-step referral process.

Distribute brochures to local medical and mental health providers.

Conduct Section 504 information forums for parents, community service providers.

Organize 504 team meetings with an agenda. Be knowledgeable of the student’s

impairment. Implement 504 accommodations.


Grievance Procedures

School districts shall: Designate at least one

person to coordinate its compliance

Adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging discrimination

34 CFR §104.7


(Documents I & J)

Scenario Sharing

Finalize the Quality Quadrant with notes regarding your scenario

Choose a Reporter Share with the group the following:

Summary of student Evaluation data considered Team decision including MLA and

impairment 3 accommodations

Questions, Comments, Witty Remarks

SECTION 504 1973 REHABILITATION ACT Americans with Disabilities Act Amendments Act of 2008: Implementing Section 504 as Amended by the ADAAA08 Grant Wood.

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