SECTION 504, THE ADA AND SCHOOLS

1. SECTION 504, THE ADA AND SCHOOLS By Conde Kunzman – Shasta County Office of Education

2. 34 C.F.R. § 104 {Section 504} No otherwise qualified individual with a disability, shall, solely by reason off his or her disability, be excluded from the participation in, denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.

3. 1973 Rehabilitation Act - History • Widely recognized as the first civil-rights statues for persons with disabilities. • Pocket vetoed twice by President Nixon when he left office in 1974 • During the 1976 campaign Jimmy Carter vowed to sign and implement the statue.

4. History - • Carter did not sign the regulations • American Coalition of Citizens with Disabilities (ACCD) organized national demonstrations. 1975 – PL 94-142 (Education of All Handicapped Children Act) • The regulations were signed by Education Secretary Riley on April 5, 1977. • http://www.npr.org/programs/wesun/features/2002/504

5. Assumptions • Most educators have received minimal and often inadequate training in the identification of 504 eligible students. • Many educators feel this legislation is less important than IDEA

6. Train Staff on Compliance • Document all parental and teacher requests and concerns regarding a student’s performance (academic/behavioral) that could trigger 504 in writing! • Designate a 504 Coordinator at site and district level. • Attach all relevant documents to a student’s 504 plan (e.g. BIP or BSP) and provide copies to all personnel involved in implementation.

7. Compliance • Develop and revise Section 504 forms. Encourage all districts to use the same set of forms. • Train and calibrate “substantial limitation across the SELPA • If a student is not making progress, revisit the current plan. Be proactive, not reactive!

8. Program Accessibility • Where a disabled student is unable, even with accommodations, to participate in the extracurricular activity, 504 does not require a separate program to be developed. (Snohomish (WA) School District. (OCR 1995) 23 IDELR 97)

9. Program Accessibility BEST PRACTICE! • For non-educational programs, make sure eligibility requirements are strictly related to the ability to participate in the program. Be wary of any eligibility requirements that single or screen out disabled students. • Do evaluate program accessibility

10. Defensible discipline

11. Defensible Discipline • 45-day removal does not require manifestation determinations to occur prior to the removals. • Caveat! 45-day removals only available for offenses involving weapons, drugs, or serious bodily injury. • District may unilaterally change the placement of dangerous students with disabilities without conducting a reevaluation.

12. Defensive Discipline • Caveat! 504 students who are subject to discipline but are currently using illegal drugs lose their 504 protections, regardless of whether the conduct relates to their disability (e.g. alcohol addiction). • 504 students who currently use illegal drugs or alcohol can be disciplined in the same manner as general education students.

13. Defensible Discipline • Section 504 students are held to the same discipline standards as their nondisabled peers. • Caveat: 504 students who are being disciplined are entitled to the same procedural protections as special education students who are being disciplined.

14. Defensible Discipline • Conduct manifestation determinations as under IDEA. (34 C.F.R. § 300.530 (e)) • Within 10 days deciding to change a student’s placement, the 504 team must meet to determine: • If the misconduct was caused by, or had a direct and substantial relationship to the child’s disability; or • If the misconduct was the direct result of the district’s failure to implement the 504 plan.

15. Defensible Discipline • Change of placement occurs when: • Removal of more than 10 consecutive school days, or • Series of removals that constitute a “pattern” • Total or more than 10 school days in a school year • Behavior substantially similar to prior incidents: and • Additional factors such as length of each removal, total time of removals, proximity of removals to each other. • Determined by LEA on a case-by-case basis.

16. Components of a 504 plan Templates are available Forms A-H Behavior Plan from PENT website

17. Procedures & Policies • Section 504 Plan – An individualized program designed to meet the disabled student’s need for equal access and participation. Components • Disability – Nature of the disability and the major life activity it limits. • Assessment – Relevant data needed to assess the nature and extent of the disability. • Educational Impact – How the disability affects the child’s education.

18. Procedures & Policies Procedural Safeguards (34 C.F.R. § 100.36) • Right to have an evaluation that draws on information from a variety of sources. • Right to be informed of proposed actions related to eligibility, placement, and plan for services (i.e., right to notice). • Right to examine all relevant records, including those obtained through investigations and interviews.

19. Procedures & Polices • Provide notice when proposing to assess a student for 504 eligibility or when declining to conduct an evaluation. Do not use special education forms. • Notice should explain the action the district proposes to take, or declines to take, and the reasons why it has decided that way. • Notice should be sufficiently detailed so that parents can meaningfully evaluate whether they wish to consent, refuse, or request a 504 hearing.

20. Procedures & Policies • Right to periodic reevaluations (annually)and an evaluation before any significant change in placement/program. • Right to an impartial hearing, with right to be represented by counsel, if there is disagreement with the school’s proposed action. • Right to appeal 504 hearing decision.

21. Specific Accommodations • District multi-disciplinary team must describe how the disability affects the student’s educational performance so that appropriate and specific accommodations can be written into the 504 plan. • Update the 504 annually (Best Practice)

22. Specific Accommodations • Narrowly tailor the accommodations to redress the substantial limitation. • Not every child requires “extra time” and “extra time” can mean a variety to things. • “Preferential seating” is different for different students. • If student requires access to a computer for assignments, specify which categories or types of assignments. • Focus on what accommodations are needed, not what is optional.

23. Specific Accommodations • Assure parents that specific accommodations can be implemented: • Tape recording: permission of personnel • Peer note taker: need for willing student volunteer • Assignments on a computer: access to a computer • Determine if other less intrusive accommodation will accomplish the same goal. • Rely on teacher’s input as to what accommodations are too vague or too laborious to implement.

24. DON’T assume FAPE under Section 504 is the same as FAPE under the IDEA

25. Deliver 504 FAPE FAPE under Section 504 vs. the IDEA: • Under 504, FAPE may consist of either regular or special education, and related aides and services, designed to meet the needs of disabled students as adequately as their non-disabled peers, as implemented by an appropriate means, including but not limited to an IEP. Under the IDEA,FAPE consists of special education and related services, written on an IEP document to meet student’s unique needs.

26. 504 FAPE FAPE under Section 504 • Requires districts to “design” educational plans to meet the needs of disabled children to the same degree as for nondisabled children. • Obtaining monetary damages for a denial of FAPE – requires a showing of intentional discrimination based on disability, or “deliberate indifference.”

27. 504 FAPE • Note: Section 504 contains a LRE requirement nearly identical to IDEA’s LRE mandate: • Disabled students must be placed in the regular education environment unless it is demonstrated that such education, with the use of supplementary aids and services, “cannot be achieved satisfactorily.” [Letter to Williams]

28. Ensure that 504 evaluations meet procedural requirements

29. Properly Assess for Eligibility Two main questions should be addressed when considering student eligibility under Section 504: • Is there a physical or mental impairment? • Does that physical or mental impairment substantially limit one or more major life functions (e.g. reading, concentrating, walking)?

30. Properly Assess for Eligibility “Substantially limits”is defined as: Without accommodation and/or intervention, the student would not be able to equally access educational programs and activities. Note: A student is not “substantially limited simply because the student in not reaching his or her potential. (T.J.W. by Butler v. Dothan City Bd. Of Ed.)

31. The Five Major Changes to Section 504 • Section 504’s eligibility language should be read more broadly. • The Section 504 Committee should consider impairments that are episodic or in remission • Congress added new major life activities, including major bodily functions • EEOC’s definition of substantial limitation was rejected as too high a standard • A new mitigating measures rule applies to substantial limitation.

32. Public Law 110-325 – 1/1/2009 • Major Life Functions • (A) a physical or mental impairment that substantially limits one or more major life activities caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, working

33. READ, the ADA Amendments Act

34. ADAAA ADA Amendments Act (effective 1/09) • Overturns a series of U.S. Supreme Court decisions, the new law is intended to reinstate a broad scope of protection for individuals with disabilities. • Ensures that individuals who compensate for their disabilities are protected from discrimination.

35. ADAAA • Broadens “major life activities” to include: • Caring for oneself, performing manual tasks, seeing, hearing, working, learning, walking, speaking, breathing, eating, sleeping, standing, lifting, bending, reading,concentrating, thinking, and communicating.

36. ADAAA – New Criteria • Operation of major bodily function, including immune system, normal cell growth, brain, respiratory, endocrine, bowel, bladder, digestive, neurological, circulatory, reproductive.

37. ADAAA • Clarifies that “substantially limits” does not mean “significantly restricts.” • Toyota Motor Manufacturing vs Williams • Impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability • Impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. 22 NDLR 92 (U.S. 2002)

38. Mitigating Measures • Something a student can use without assistance from the school • OCR has pointed out that mitigating measure should not be confused with reasonable adjustments auxiliary aids and services • Office of Civil Rights –FAQ packet • #21, #22, #24

39. ADAAA • Requires disability determinations to be made without considering mitigating measures • e.g., medication, medical supplies, appliances, low-vision devices, prosthetics, hearing aids and mobility devices • excludes ordinary eye glasses and contact lenses – usually

40. Sutton (30 IDELR 681) Consider the impact of mitigating measures, for good and bad, when determining substantial limitation Evaluate the individual “as they are found”

41. Episodic Impairments • Episodic impairments ebb and flow in here their severity • Seasonal allergies • Asthma • Migraine headaches • Qualify if condition episodically arises to the level to a substantial limitation

42. Episodic 504 plans The Section 504 Committee should state in the plan the trigger factors for each student with an episodic impairment that will both identify when to start the 504 services, and when the services are no longer necessary

43. Episodic impairments The school has a duty to evaluate where the impairment, although episodic, substantially limits a major life activity when active

44. Episodic 504 Plans • Look at the big picture of the school year, not just when active. • If during the school year the condition rises to the level of a substantial limitation the school should evaluate

45. Eposodic Section 504 Plans • Section 504 FAPE is supposed to level the playing field • Section 504 plan should be provided on an “as needed” bases

46. Episodic/Technical 504 Plans • Student is not exited from Section 504 between episodes • The 504 plan is paused until needed again

47. Impairments in Remission • “impairment that is in remission is a disability if it would substantially limit a major life activity when active” • Looks back the dormant impairment and asks how it would impact if active

48. Remission vs Episodic • Remission seems to mean conditions that are conditions that were once present but have not returned • Episodic means conditions are cyclic

49. Some Evaluation Concerns • How would such a student be identified as in need of evaluation? • Assuming that the parents refer, or the school decides that a 504 evaluation should occur, how would the student be evaluated?

50. Purpose of Evaluation • Identify need and determine service to meet the need • An impairment that no longer exists and is not expected to return but the guidance is not clear on this.