The U.S. Department of Education Office for Civil Rights

The U.S. Department of Education

Office for Civil Rights

This document provides general information for the purposes of training and technical assistance. This document is not an OCR

policy document.

Objectives

• Overview of OCR

• Explain OCR’s Section 504 and ADA enforcement

• Review FAPE Requirements under Section 504

• Discuss ADA Amendments Act & Impacts

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What is OCR?

Part of the U.S. Department of Education

Enforces federal civil rights laws prohibiting discrimination in education programs on the basis of: race, color, national origin, sex, disability, and age

Headquartered in Washington, DC and includes 12 regional offices across the U.S.

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OCR across the Country

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Legal Jurisdiction

Title VI of the Civil Rights Act of 1964

Title IX of the Education Amendments of 1972

Section 504 of the Rehabilitation Act of 1973

Title II of the Americans with Disabilities Act of 1990

The Age Discrimination Act of 1975

Boy Scouts of America Equal Access Act

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OCR’s Jurisdiction

OCR has jurisdiction over programs and activities that receive financial assistance from the Department of Education. These may include:

state education agencies elementary and secondary school systems colleges and universities state vocational rehabilitation agencies

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OCR’s Jurisdiction

OCR also has jurisdiction over certain public entities under Title II, which prohibits disability discrimination by public entities whether or not they receive federal financial assistance.

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How does OCR enforce the law?

OCR

resolves complaints conducts compliance reviews provides technical

assistance

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Complaint Resolution

Early Complaint Resolution

Investigation

Voluntary resolution before the conclusion of an investigation

Resolution Agreement (to settle the matter)

Letter of Findings and Enforcement

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Technical Assistance

OCR provides TA to help schools, parents, and students understand their rights and responsibilities.

Types of technical assistance: PresentationsResponses to telephone and written

inquiriesWorkshopsConsultations

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Section 504 & Title II Protections

Examples of prohibited discrimination under both Section 504 and Title II may include:

Failure to provide FAPE to an elementary or secondary student with a disability

Failure to provide appropriate academic adjustments to a qualified college student with a disability

Denying the benefits of a program or activity because a school’s facilities are inaccessible

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Section 504 - Nondiscrimination

General Provision: Prohibition against discrimination on basis of disability (Subpart A)

Elementary and Secondary Programs: Provision of FAPE (Subpart D)

Accessibility (Subpart C)

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Free Appropriate Public Education (FAPE)

• to each qualified student with a disability

• in the school district’s jurisdiction

• regardless of the nature or severity of the disability

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Qualified Individual with a Disability

In the elementary and secondary context, the person with a disability is:

of an age when students without disabilities are provided with the services

of an age which it is mandatory under state law to provide services to student with disabilities; or

a state is required to provide FAPE under IDEA

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What does Free Education mean?

Free means free:

Educational and related services at no cost to student or parent

may charge fees paid by all students

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What does Appropriate mean?

Appropriate means:

regular or special education and related aids and services designed to meet a student's individual needs as adequately as the needs of non-disabled persons are met; and

based on requirements regarding academic setting, evaluation, placement, and procedural safeguards.

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IDEA is Different

Many students are served under another federal law, the Individuals with Disabilities Education Act (commonly referred to as IDEA).

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IDEA vs. Section 504/Title II

IDEA defines disability differently.

To be protected under IDEA, a child must: have a particular disability listed in IDEA,

and need special education

Under Section 504, a qualified student with a disability is protected regardless of whether the student needs special education

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The Section 504 Process

Identification

Placement

Evaluation

Evaluation

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Identify and Evaluate

Districts must individually evaluate any child who, because of a disability, needs or is believed to need special education or related services.

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Evaluation

Conduct an evaluation of any person who needs or is believed to need special education or related services:

Before initial placement

Before any subsequent significant change in placement

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Purpose of Evaluation

The evaluation is intended to answer two questions:

(1) Does the child have a disability under Section 504/Title II?

(2) If so, what are the child’s individual education needs?

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ADA Amendments Act of 2008 Effective Jan. 1, 2009

Amends ADA and conforms definition of disability in Section 504 with Amendments Act

Retains the elements of the term “disability,” but changes the meaning of “substantially limits a major life activity” and being “regarded as” having an impairment.

Requires “disability” to be construed broadly

Did not alter IDEA

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Definition of Disability

A physical or mental impairment which substantially limits one or more major life activities, or

A record of such impairment, or

Being regarded as having such impairment

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What changed with the Amendments Act?

Interpretation of “disability”

The Amendments Act maintains the same three elements for the term disability.

The meaning of “disability” changed.

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What changed with the Amendments Act?

Meaning of “substantially limiting”

No mitigating measures (except ordinary eyeglasses and contact lenses)

Episodic impairment is a disability if it would substantially limit a MLA when active

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What changed with the Amendments Act?

“Regarded as” a Person with a Disability

Functional limitation is irrelevant

Not transitory and minor

Not entitled to reasonable modifications

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Major Life Activities include (but are not limited to): Caring for oneself Performing manual

tasks Walking Seeing Hearing Speaking Breathing Learning Working

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Eating Sleeping Standing Lifting Bending Reading Concentrating Thinking Communicating

Major Life Activities (cont.)

Functions of the immune system

Normal cell growth Digestive Bowel Functions Bladder

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Brain Circulatory Endocrine Reproductive Neurological Respiratory

Section 504/ADA Policies and Procedures

School district must revise its policies and procedures to reflect the Amendments Act’s new legal standards.

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Section 504 Question #1: Does the child have a disability?

Or, does the student have a physical or mental impairment which substantially limits one or more major life activities?

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What is an impairment?

Any physiological condition that affects a bodily system, or any mental or psychological disorder.

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Substantial Limitation

Does the student’s impairment substantially limit one or more major life activities?

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Substantial Limitation

Does not mean severe restriction or inability in performing major life activity

Look to condition, manner, and duration

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Major Life Activities include (but are not limited to):

Caring for oneself Performing manual

tasks Walking Seeing Hearing Speaking Breathing Learning Working

Eating Sleeping Standing Lifting Bending Reading Concentrating Thinking Communicating

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Major Life Activities

Functions of the immune system Normal cell growth Digestive Bowel Functions Bladder

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Brain Circulatory Endocrine Reproductive Neurological Respiratory

Major life activities also include operation of “major bodily functions” such as:

Next….

The student has been evaluated

Eligibility has been established

Her/His needs have been identified

Next, decide on . . .

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Placement

Appropriate educational services designed to meet the student’s individual needs.

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Section 504 Question #2: What are the child’s individual education needs?

Needs are identified by looking to a variety of evaluation sources, including:

aptitude and achievement tests teacher recommendations physical condition social or cultural background adaptive behavior

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Who Decides?

The “team” or a group that includes persons knowledgeable about:

the student

the meaning of the evaluation data

the placement options

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Placement Procedures

The Team carefully considers:

evaluation information from a variety of sources

all significant factors affecting the students ability to receive a FAPE

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Placement Procedures

The Team:

documents all the information considered

does not rely on assumptions regarding persons with disabilities or classes of such persons

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Types of Academic Settings

Regular classes

Regular classes with supplementary services, and/or

Special education and related services

However, all students must. . .

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Academic Settings

Be educated with non-disabled students to the maximum extent appropriate to the needs of the student with a disability

Placement should be in regular classroom unless an appropriate education cannot be achieved satisfactorily with supplementary aids and services

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Once placement has been decided…

Implement the placement plan!

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Non-Academic and Extracurricular Services and Activities

Students with disabilities must be provided an equal opportunity to participate in transportation, lunch, recess, physical education, clubs, athletics, etc.

May be part of the Plan

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Reevaluation

Periodic reevaluations is required.

Recipient must develop procedures for periodic reevaluations. Using the IDEA procedures is one means of meeting the procedure requirement under Section 504.

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Procedural Safeguards

School districts must provide a system of procedural safeguards regarding identification, evaluation, and educational placement.

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Procedural safeguards include:

Notice

Records review by parent or guardian

Due Process (i.e., impartial hearing with participation by parent and counsel)

A review procedure

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Resources Visit OCR’s Reading Room, available at:

www.ed.gov/ocr

Refer to OCR’s “Q&A on the ADA Amendments Act of 2008 for Students with Disabilities Attending Public Elementary and Secondary Schools”

Refer to OCR’s “FAQs about Section 504 and the Education of Children with Disabilities”

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How to Reach OCR

Website: www.ed.gov/ocr

Amy Kim: [email protected] (206) 607-1621

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