IMPLEMENTING 504 IN MISSOURI’S SCHOOLS

1. IMPLEMENTING 504 IN MISSOURI’S SCHOOLS Teri Goldman Teri B. Goldman, LLC 36 Four Seasons Center #337 Chesterfield, MO 63017 terigoldmanatty@aol.com

2. PURPOSE OF 504 • To eliminate discrimination on the basis of disability in any program or activity receiving federal financial assistance from the Dep’t of Education. • Direct or indirect receipt of federal financial assistance. .

3. Who is disabled under 504? • A person is disabled if that person currently has a physical or mental impairment that substantially limits one or more major life activities. • If a student satisfies this definition, the student is entitled to FAPE if the school is a recipient of federal financial assistance.

4. Other definitions of disability • A person is disabled and subject to the nondiscrimination aspects of the law, but not the FAPE obligation, if: • (i) that person has a record of having an impairment that is substantially limiting; or • (ii) is regarded as having such an impairment.

5. Record of Disability • Has a history of, or has been misclassified as having, an impairment that is substantially limiting. • Examples – persons with histories of mental or emotional illnesses, heart disease or cancer.

6. Regarded As • Has an impairment that is not substantially limiting, but is treated by the recipient as though he or she does; or has an impairment that is substantially limiting only because of the attitude of others; or has no impairment but is treated by the recipient as having such an impairment.

7. Regarded As • Examples – persons with a limp, persons with disfiguring scars, AIDs. • Be cautious of individual accommodation and health plans prepared outside of IDEA and 504. • OCR – where teachers were asked to comply with voluntary scent-free program, student was regarded as having disability.

8. Regarded As • Consider adding language to such plans: This individualized plan provides for routine accommodations that the XYZ District makes available to any student who needs such routine accommodations. The District has no reason to suspect that the student who is the subject of the plan has a 504 or IDEA disability.

9. What is an impairment? • Physical or mental impairment means any physiological disorder or condition or any mental or psychological disorder. • An impairment, alone, is insufficient to qualify a student as 504 disabled.

10. Medical Diagnoses • OCR – a medical diagnosis, including medication, is neither necessary or controlling in determining disability status. • A medical diagnosis is simply evidence that the individual has an impairment. • Use terminology correctly.

11. Medical Diagnoses • OCR – finding a student eligible simply on the basis of a diagnosis violates 504. • Don’t second guess medical diagnoses, simply consider them as one part of the process.

12. What is a major life activity? • Major life activities mean functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. • List is not exhaustive. Courts may add further to the list.

13. Major Life Activities • In the school context, learning is not the only major life activity to be considered when determining disability status. • Courts take a global view. The activity should be viewed as central to daily living. Don’t use small subsets of learning, such as spelling.

14. Major Life Activities • Major means important. “These terms need to be interpreted strictly to create a demanding standard for qualifying as disabled.” • Court Examples: • Lifting, but only as part of set of basic motor functions. • Running is not.

15. Major Life Activities • It is doubtful that socialization is. • Gaining weight and failing the bar exam are not. • Driving is not. • Caring for other is not. • Eating, for a diabetic person, is. • Attending day care is not.

16. Major Life Activities • Shopping, gardening, golfing are not. • Sexual reproduction is. • Eating and drinking may be. • Ability to process body waste is for person with kidney disease. • Attaining a high score on the SAT is not.

17. Major Life Activities • Specific activities not on the list are determined on a case-by-case basis.

18. What is substantial limitation? • First, look at whether the identified impairment impacts the identified major life activities. • Second, must determine substantial limitation on individual basis. • Third, conduct the analysis by looking at the individual with mitigating measures in place.

19. Mitigating Measures • Devices or practices that a person uses to correct for or reduce the effects of the mental or physical impairment. • Examples – eyeglasses, contacts, medication, hearing aids.

20. Substantial Limitation • The individual must be significantly restricted as to the condition, manner or duration in which the individual can perform the major life activity compared to the condition, manner or duration under which the average person can perform that same major life activity.

21. Substantial Limitation • Supreme Court – to be substantially limited, the impairment’s impact must be permanent or long-term. • An individualized assessment of the effect of the impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person.

22. Substantial Limitation • Eighth Circuit – it means limited considerably or to a large degree. • Critical – the comparison is to the average peer or person in the population. For students, measured by reference to performance of children at same age or grade level.

23. Substantial Limitation • Comparison is not in relation to student’s potential or ability. • Use at least state or national data, where available.

24. Exclusions • Environmental, cultural, and economic disadvantage are not in themselves covered. • Other excluded conditions include bisexuality, other gender identity disorders, compulsive gambling.

25. Exclusions • Psychoactive substance use disorders resulting from current illegal use of drugs. • The term individual with a disability does not include an individual who is currently engaging in the illegal use of drugs when the recipient acts on the basis of such use.

26. Exclusions • Individuals no longer engaging in drug use are not excluded if they have successfully completed a supervised drug rehab program. • If an individual is a rehabilitated drug addict or alcoholic, is not currently using, and otherwise meets the statutory definition, they can qualify as disabled.

27. Temporary Impairments. • Supreme Court – ADA – the impairment’s impact must be permanent or long-term. • EEOC – temporary, non-chronic impairments of short-duration, with little or no permanent long-term impact, are usually not disabilities.

28. Temporary Impairments • OCR – may be covered if substantially limiting and depending on severity and duration. • Case-by-case evaluation.

29. Case Examples • Post-traumatic stress disorder, standing alone, is not a disability and not necessarily an impairment. • Asthma was not a disability where it did not impact a major life activity. Attacks were infrequent and symptoms could be controlled with medication.

30. Case Examples • Former medical student was not disabled where he could not prove was substantially limited in learning and reading. Prior academic success was “fatally inconsistent” with his claim to be disabled. • A diagnosed learning disability is not necessarily a disability under the ADA and 504.

31. Case Examples • A diabetic person was not disabled where the disorder was controlled through insulin and diet. • A person with end-stage renal disease was disabled because was unable to control the body’s ability to process waste.

32. Case Examples • Student with asthma was eligible where asthma was severe and student was repeatedly hospitalized – substantially limited in breathing. • Student with asthma not eligible, even where placed on homebound at times, because her asthma, with inhaler, did not substantially limit breathing or other major life activities.

33. Case Examples • Student with ADHD not eligible where impairment did not substantially limit learning. • ADHD student not disabled where classroom performance was above average.

34. 504 v. IDEA and FAPE • IDEA – an IEP that is reasonably calculated to provide meaningful educational benefit. • 504 – provision of regular or special education and related services designed to meet the individual educational needs of disabled person as adequately as needs of nondisabled persons.

35. FAPE • Implementation of an IEP one way to provide FAPE under 504. • OCR – but parents have no flexibility in choosing between IDEA and 504. • Impermissible for parents to reject IDEA services and require district to develop only 504 plan.

36. 504 v. IDEA • IDEA covers only students who meet criteria. • 504 covers more individuals and activities- employees, patrons, parents, facilities, extracurricular.

37. CHILD FIND Obligation to Identify and Evaluation Students

38. CHILD FIND • 504 requires recipients operating public elementary and secondary education programs to annually undertake to locate and identify all students with disabilities. • Comply, in part, by public announcements and posting of forms and notices.

39. Evaluations • Need written procedures regarding evaluations and eligibility determinations. • Parents cannot demand a specific evaluator. • Referrals – teachers should document why they believe student may need 504 assistance.

40. Child Find and Evaluations • 504 requirements a preplacement evaluation of any person who, because of disability, needs or is believed to need special education or related services before taking action with respect to initial placement. • Significant changes in placement require revaluations.

41. Evaluations • A student seeking 504 eligibility must permit the school to conduct and evaluation to determine if the student is a person with a disability. • A placement of a student in 504 without an evaluation violates 504.

42. Evaluations • Districts are not required to evaluate or identify, simply at parent request, where no reason to suspect a disability. • If refuse, should provide notice of action and 504 procedural safeguards.

43. Evaluations • District is obligated to conduct evaluation where reason to suspect that student may meet 504 definition of disability. • If a parent refuses to consent to an evaluation to determine existence of disability, the student is considered not to be disabled.

44. Evaluations • No automatic obligation to evaluate students for 504 eligibility after the determination of non-IDEA eligibility. • DO NOT USE 504 AS A CONSOLATION PRIZE!!!!

45. Evaluations • 504 does not necessarily require a medical evaluation, but if the team believes one is necessary, it must be provided at no cost to parent. • Must consider, but not follow, outside evaluation recommendations.

46. Evaluations • 504 does not specify the form of the evaluation.

47. Evaluations • Need written procedures regarding evaluations and eligibility determinations. • Parents cannot demand a specific evaluator. • Referrals – teachers should document why they believe student may need 504 assistance.

48. Evaluations • Need referral, screening (review of existing data) and evaluation procedures. • A medical diagnosis, alone, is not an evaluation. • Evaluation procedures should be consistent with those used under IDEA with respect to:

49. Evaluations • Validation and reliability. • Proper administration. • Sufficient testing in all areas of suspected disability.

50. Evaluations and Consent • OCR, not 504, requires written parental consent for initial 504 evaluations. • OCR does not, at this time, require consent for reevaluations. • Districts may, but are not required to, use due process to override refusal to consent.