Best Practices for Implementing Section § 504

1. Best Practices for ImplementingSection § 504 Dr. Elissa Brown Director, Section § 504 NC Department of Public Instruction ebrown@dpi.state.nc.us 0

2. Section § 504: AGENDA • Authority • Definition/Who is covered • Processes & Procedures • IHP, 504, IEP • Team Members • Accommodations • Best Practices

3. § 504: Authority • OCR is the administrative authority to enforce § 504 (1973; ADAAA 2008) • State departments of public instruction have no enforcement authority for issues arising under § 504 • LEAs must identify the person responsible for ensuring compliance • § 504 provides procedural safeguards

4. Who is covered?To be protected, a student must be determined to: • Have a physical or mental impairment that substantially limits one or more major life activities ; or • Have a record of such an impairment; or • Be regarded as having such an impairment 34 CFR § 104.3(j)

5. Drill down deeper (1st prong) Have a physical or mental impairment that substantially limits one or more major life activities (this generally creates the catalyst for referral for Section 504 plan) • A physical or mental impairment • That substantially limits • One or more major life activities or major bodily function

6. Substantial Limitation • …is the inability to perform a major life activity or major bodily function when compared to how the person in the general population performs the same major life activity or major bodily function

7. Major Life Activities • …means functions such as caring for one’s self; performing manual tasks; walking; seeing; hearing; speaking; breathing; learning; or working • 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

8. § 504 Intent The question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis

9. Did you know… An impairment in and of itself is not a disability. The impairment must substantially limit one or more major life activities in order to be considered a disability under§ 504

10. Cultural, Economic, & Environmental Factors ….three parts of definition specifies physical and mental disabilities…thus, cultural, economic, and environmental factors are not themselves covered. Such as… -Homeless -Migrant -Poverty -Divorce -ESL -Military deployment -Attendance problems -Death or other family crisis

11. Annual Notice of Nondiscrimination • A recipient that employs 15 or more people • Initial and continuing steps to notify participants, beneficiaries, applicants, and employees • Does not discriminate in admission or access • Shall identify the official responsible for ensuring compliance • Multiple methods of dissemination • If the service area contains limited English language, public notifications must be disseminated in native language

12. Annual Notice Scenerio: What’s missing? In compliance with Federal Law, Best Bet Schools administers all education programs, employment, and admissions with out discrimination against any person on the basis of gender, race, or religion

13. Child Find • A public elementary or secondary education program shall annually: • Undertake to identify and locate every qualified handicapped person residing in the recipient’s jurisdiction who is not receiving a public education; and • Take appropriate steps to notify handicapped persons and their parents/guardians of the recipient’s duty under this subpart

14. Clarifying terms and degrees of impairment/disability Temporary impairment Individual Health Plan (IHP) Section 504 Individual Education Plan (IEP)

15. Temporary Impairment • A temporary impairment does not constitute a disability for purposes of Section 504, unless its severity is such that it substantial limits a major life activity for an extended period of time • Case-by-case basis • Consideration of 1) duration of impairment and 2)extent to which it limits major life activity

16. Side-by-Side: IDEA and § 504

17. Side-by-Side: IDEA and § 504

18. Individual Health Plan (IHP) • Responsibility of School Nurse to develop • State policy (not federal statute) • Each LEA shall make available a registered nurse for assessment, care planning, and on-going evaluation of students with special health care service needs

19. IHP; Section 504; IEP With a partner or small group: Discuss the similarities and differences between an Individual Health Plan (IHP), a Section 504 Plan, and an Individual Education Plan (IEP) • When would you choose one or the other? • When is an IHP enough and when do you need a 504?

20. Did you know…. • Q: How should the school respond if parents reject IDEA eligibility and demand a 504 plan? • A: Parents may not reject the IDEA services and then expect the school to develop a 504 plan. A rejection of services under the IDEA amounts to a rejection of FAPE under Section 504.

21. Did you know… A 504 plan is not legally sufficient to substitute for an IEP. IDEA sets out specific requirements for the development and content of a student’s IEP

22. Section 504 Plans & IEPs Section 504 eligibility is not a consolation prize for students who do not qualify for special education (Zirkel, P. Lehigh University) IDEA regulations do not allow a 504 plan to substitute for an IEP. The IDEA and its regulations set out specific requirements for the development and content of a student’s IEP. (Letter to Morse, OSEP: 10-03-03)

23. Consent for Evaluation: 504 Must have parent consent for evaluation but not required to have parent consent for services

24. Eligibility Procedures • Must draw upon information from a variety of sources • Document and carefully consider all information, including any new data • Team decides…group should be knowledgeable about condition, student, context, capacity • LRE appropriate appropriate to learner

25. Accommodation Plan • Evaluation drawn from a variety of sources-traditional and nontraditional sources (including aptitude/achievement measures, medical documentation, psychological evaluations, curriculum-based, teacher anecdoctal notes, etc.) • Developed in accordance to LEA procedures

26. Accommodation Plan • Reviewed (best practice annually) as appropriate (frequently as needed) • Documented and coherent • Includes supplemental aides, related services, field trips, recess, lunch, clubs, athletics • Written by the team, communicated & disseminated • Procedures should be in place to monitoring plan implementation

27. Team Members (Multi-disciplinary committee) • Speech, OT, PT, child nutrition-match to child’s documented needs • General Educator(s) • School Nurse • School Counselor • Administrative personnel • Parent, Student, Advocate Persons knowledgeable about child, meaning of data, placement options

28. Implementation • General education teachers must implement the provisions of the Section 504 plans when those plans govern the teachers’ treatment of students for whom they are responsible. If the teachers fail to implement the plan, it can cause the LEA to be in noncompliance • If teachers do not implement the § 504, the majority of times, it is a miscommunication issue

29. State Testing Accommodations • Use NCWISE “testing accommodations chart” form www.ncpublicschools.org/accountability/policies.tswd Accommodations that are listed on Section 504 Plan must be used routinely in classroom instruction, classroom assessments, and on state assessments

30. Procedural Safeguards • Notice to parent with accompanying documents • Re-evaluation before a significant change in placement • Grievance procedures • Designation of employee responsible for compliance • Public notice of nondiscrimination policy

31. Procedural Safeguards (cont.) • Parents rights to review educational records, appeal any decision regarding evaluation and placement through an impartial hearing

32. Discussion questions • Discuss how your LEA does the following: • What processes are in place for transfer students? • What constitute reasonable services under 504? • What procedures are in place for 504 re-evaluation? • What procedures are in place to monitor plan implementation?

33. Best Practices • Annual Review • Parent, student, professional that matches need (eg Child Nutrition) at team meeting • Consent for placement • Multiple sources of data • Instructional and testing accommodations match • More detail is better than not enough detail

34. Best Practices • Be proactive-provide accommodations listed in the Section 504 plan; don’t wait for a student to request them • Delineate roles and responsibilities for services as well as disability discrimination complaints • Do not use learning as the only gauge of § 504 eligibility • Update forms

35. Section 504 Resources • http://www.uwsp.edu/education/pshaw/Portfolios/KIM%20MEISSEN/inetpub/SOEportfolio/504resources.html • www.eeoc.gov • http://wrightslaw.com/ • http://www2.ed.gov/about/offices/list/ocr/504faq.html • LRP.com

36. Future Directions • Create state guidance document • Facilitate professional development • Create process through NCWISE to collect annual reporting data (headcount and/or accommodations) • Testing Accommodations Chart-accountability www.ncpublicschools.org/accountability/policies.tswd • Continue collaboration between and among agencies (Child Nutrition, Exceptional Children, School Nurses, etc)