Differences & Distinctions: 504s v. IEPs

1. Differences & Distinctions:504s v. IEPs Amy Vatner, Esq. SPED*NET Wilton June 4. 2013

2. Training Agenda • Legal Background • Section 504 & Public Schools Overview • Referral, Evaluation, & Eligibility Determination • 504 Plan & Placement • Procedural Safeguards • IDEA vs. 504

3. Legal Background

4. What is Section 504? • Part of the Rehabilitation Act of 1973 • National civil rights law, not and education statute • Prohibits discrimination on the basis of disability by any program or activity (including schools, health care housing, postsecondary education) that receives federal financial assistance

5. What Section 504 Says “No otherwise qualified individual with a disability in the United States shall, solely by reason of her or his disability, • be excluded from the participation in, • be denied the benefits of, or • be subjected to discrimination under any program or activity receiving Federal financial assistance”

6. Related Laws:IDEA* and Section 504 • IDEA is a Dept. of Education statute, not civil rights • Both may provide services and protections to students with disabilities • Laws have different definitions of “disability” • 504 is not a funding statute • IDEA is a funding statute – federal and state allocations *Individuals with Disabilities Education Act

7. Related Laws: Section 504 & Americans with Disabilities Act Amendments Act (ADAAA) of 2008 • ADAAA prohibits discrimination of people with disabilities by: • All qualifying private employers (Title I) • All state and local government programs, including the public schools (Title II), and • All places of public accommodation, including non-religiously controlled colleges and universities and test agencies (Title III) • Section 504 preceded enactment of ADAAA and has generally been used as basis for disability discrimination protection in schools • Courts and Office of Civil Rights (OCR) have interpreted laws consistently

8. ADA Amendments Act of 2008 (ADAAA) • ADAAA requires that definition of disability be interpreted broadly • OCR enforces Section 504 regulations consistently with the ADA, so the new definition of disability in the ADAAA must be used when determining Section 504 eligibility

9. Person with a Disability: ADAAA/504 Definition Does the student: • have a physical or mental impairment* • which substantially limits • one or more major life activities? *or has a record of having an impairment or is regarded as having an impairment

10. 504/ADAAA Disability Definition Part 1:Impairment • Any physiological condition that affects a bodily system, or any mental or psychological disorder

11. 504/ADAAA Disability Definition Part 2:Substantial Limitation • No litmus test for what “substantially limits means” • More than material limitation but less than severe limitation (Look to condition, manner, duration) • Mitigating measures may not be considered (medication) • Includes substantially limiting impairments that may be episodic or go into remission

12. 504/ADAAA Disability Definition Part 3:Major Life Activity Added by ADAAA Eating Sleeping Standing Lifting Bending Reading Concentrating Thinking Communicating Section 504 • Caring for oneself • Performing manual tasks • Walking • Seeing • Hearing • Speaking • Breathing • Learning • Working

13. Additional Major Life Activities (Bodily Functions) • Brain • Circulatory • Endocrine • Reproductive • Neurological • Immune system • Normal cell growth • Digestive • Bowel • Bladder • Respiratory

14. Section 504 and Public Schools

15. IDEA vs 504: Big Picture reminders • If a student has an IEP, she is covered by the IDEA & receiving special ed services • If a student has 504 plan, there are no special ed services

16. Section 504 and Public Schools • Intent of civil rights laws is to provide equal opportunity and prevent discrimination based on disability – THINK “leveling the playing field” • Public schools must provide FAPE (free appropriate public education) to each qualified student with a disability

17. Overview: The 504 Process • Referral • Evaluation • Eligibility Determination • Development of 504 Plan • Review • Reevaluation

18. Referral for evaluation • Districts: Have “child find” obligation to evaluate students who they suspect may have a disability • Parents: May want to consider 504 evaluation if their child did not qualify for services under IDEA but has shown a pattern of not succeeding in the general education classroom or has a diagnosis and needs accommodations to fully participate in school activities • Anyone may refer, but parents must CONSENT to eval

19. Purpose of Evaluation • Does the student have a disability under Section 504? • If so, what are the student’s individual education needs?

20. Section 504 Evaluation Requirements • Use valid tests conducted by trained personnel • Assess all areas of educational need • Accurately reflect achievement rather than disability • Be completed in a reasonable amount of time • Include process for periodic reevaluation

21. Medical Diagnosis and 504 • Medical diagnosis is not needed for Section 504 eligibility (team can make placement without it) • If 504 placement team determines a diagnosis is required, the evaluation must be conducted at no cost to the parents • If a child does have a medical diagnosis, it does not automatically qualify the student for 504 services • Look at IMPACT and not DIAGNOSIS

22. Question: Outside diagnosis • Student has a diagnosis from an outside clinician. Is student entitled to a 504 plan on this basis alone?

23. Question: No diagnosis, but problems • Student has no formal diagnosis, but is struggling in school, has severe problems staying focused in class. Can the student receive a 504 plan without a formal diagnosis?

24. 504 Team People who: • are knowledgeable about the student, • can interpret data, and • know the placement options • Might include: • Principal • Social Worker • Counselor • Psychologist • Nurse • Other School Staff • Parent (not required as under IDEA!)

25. Determining 504 Eligibility The team must consider all factors affecting a student’s ability to receive FAPE: • Evaluation data (aptitude and achievement tests) • Teacher recommendations • Physical condition • Child’s social & cultural background • Adaptive behavior • Other sources of information (parents, doctors, etc.)

26. Placement • More than just the physical setting • Plan describes all modifications and accommodations to be provided to meet student’s individual needs • Written plan is not required, but is considered good practice (AND YOU SHOULD DEMAND IT!!)

27. What’s in the 504 Plan • Description of the disability • How disability addressed in the school • List of accommodations/modifications and services • Names of teachers who will put plan into effect • Remember, the plan doesn’t have to grant everything, it’s about leveling the playing field and the school has some defenses it can claim

28. Accommodation & Modifications Examples include: • Removal of physical barriers • Extended time for testing • Adjustment of class schedule • Rest periods • Use of aids (calculators, recorders, notetakers, modified textbooks, etc.) • Individualized homework assignments

29. Sit down with student and have a meaningful conversation • Work with student to figure out the 3-5 most important things that could change about his/her school day • Parent or provider can have this conversation

30. Related Services: DON’T let them tell you services aren’t part of 504!! • Physical therapy • Counseling, psychological, or social work services • Assistive technology • Speech & language services • Occupational therapy • Medical Services • Staff training

31. Reevaluation Required: • “Periodically” (not defined in 504, may use IDEA timelines) • Before changing placement (includes education setting or significant change in service level) • Suspension of more than 10 days

32. Procedural Safeguards

33. Procedural Safeguards • Ensure parents are properly notified regarding their children’s education • Provide process for parents to disagree with school’s decision • Require districts to review their own compliance with Section 504 requirements

34. 4 Dispute Resolution Options • U.S. Department of Education Office of Civil Rights complaint (must be filed within 180 days) • Legal action in Federal Court • General grievance with District-designated 504 Coordinator • Impartial Hearing for disagreements over identification, evaluation & placement only (not the 504 plan itself!)

35. 504 Coordinator and Grievance Procedures School Districts must: • establish grievance procedures for resolving complaints • designate a 504 Coordinator to ensure compliance • inform parents and students about the grievance process • AGAIN – this is for more general complaints of discrimination (including access to programs)

36. No Retaliation Districts may not retaliate against individuals for: • asserting rights under 504 • opposing disability discrimination • participating ina complaint process or hearing

37. IDEA vs. 504

38. IDEA/504 Diagram Students with disabilities All Students 504- eligible students IDEA-eligible students

39. Side-by-Side Comparison

40. After High School

41. General Overview: Section 504 and ADAAA Who must comply? • Section 504: recipients of Federal funds • ADA: • Private employers (Title I) • All state and local government programs (Title II) • Public accommodations, including non-religiously controlled colleges and universities and test agencies (Title III)

42. There are No IEPs after High School, but waiving a 504 isn’t magic either • After a student graduates high school or turns 21, IDEA no longer applies • With a 504, student still must self-advocate with postsecondary institution • Legal obligations of employers and postsecondary institutions are very different from K-12 public schools

43. Self-Advocacy is Critical • Services are not received by entitlement • Students must request and demonstrate eligibility – there are no child find obligations anymore

44. Postsecondary Institutions & 504 • Cannot deny admission to qualified(academic and technical standards) students on basis of disability • Must make necessary changes to policies and procedures (academic adjustments such as substitution of courses, classroom accommodations, or waiving full-time financial aid requirements for students who must take fewer courses at a time) • Must ensure student is not discriminated against because of absence of needed auxiliary aids (i.e. notetakers, interpreters, audio text) • Not required to provide personal accommodations (attendants, devices for personal use, etc.) nor fundamentally alter a program

45. College Eligibility Determination • IDEA or 504 services in high school do not guarantee eligibility for accommodations in postsecondary education (colleges entitled to make own determination!) • Student must self-identify and provide documentation of disability • Must be qualified student: meet the academic and technical standards for admission

46. Disability Documentation • Student Responsibility: • Assessment to identify disability and functional limitations and need for academic adjustment or auxiliary aids or services College Responsibility: • Set reasonable standards for documentation and specify how much documentation is needed • Use an “interactive process” to determine appropriate academic adjustments and auxiliary aids and services that meet the student’s individual needs

47. Side-by-Side Comparison

48. Tips for a Smooth Transition • Contact the college’s disability or student services office and ask what their procedures are for requesting accommodations or auxiliary aides • Provide a copy of documentation of disability and need for academic adjustment or auxiliary aid or service • Utilize summary of performance required under IDEA • Put any requests in writing as soon as possible! • Remember that it is the student’s responsibility to follow the procedures • Communicate and work cooperatively

49. References • ADA Amendments Act of 2009 • Section 504, Title II, and Students with Disabilities in Public Schools (OCR) • The 411 on Disability Disclosure Workbook (National Collaborative on Workforce and Disability) • Section 504 of the Rehabilitation Act of 1973 Regulations • Transition of Students with Disabilities to Postsecondary Education: A Guide for High School Educators (OCR) • Free Appropriate Public Education for Students with Disabilities: Requirements under Section 504 of the Rehabilitation Act of 1973 (OCR) • OCR Complaint Processing Procedures • Frequently Asked Questions About Section 504 and the Education of Children with Disabilities(OCR) • Academic Adjustments & Auxiliary Aids & Documentation (OCR) • Students with Disabilities: High School to College (OCR) • Commonly Asked Questions About Child Care Centers and the Americans with Disabilities Act (DOJ) • Americans with Disabilities Act Questions and Answers (EEOC)

50. Office for Civil Rights http://www2.ed.gov/about/offices/list/ocr/index.html National OCR Headquarters: 800-421-3481 Boston regional OCR office: (617) 289-0111 Complaint Information: http://www2.ed.gov/about/offices/list/ocr/qa-complaints.html