SECTION 504

1. SECTION 504 Presented by: Jennifer Armstrong

2. Objectives • Brief history of Section 504 • 2008, ADA Amendments • 3 key changes within ADA that affect Section 504 • Significance for schools • IDEA vs. 504

3. Objectives continued • When is a 504 appropriate? • 504 procedures • Example 504 accommodation plans • Components of 504 accommodation plans • Services vs. accommodations • Who is responsible for 504’s? • Common questions & answers

4. History of Section 504 • Enacted in 1973 under the Rehabilitation Act. • “Federal law designed to protect the rights of individuals with disabilities in programs and activities that receive Federal financial assistance from the U.S. Department of Education” (www.ed.gov, 2009). • http://www.youtube.com/watch?v=HMC5UuiIQkI

5. History of Section 504 • FAPE to each qualified student with a disability. • Student within their jurisdiction. • Regardless of the nature or severity of the disability. • Regular education, related aides, additional services. • Meet needs as adequately as a student without a disability.

6. Who is protected under Section 504? • Definition of qualified individuals with disabilities. • 1. Physical or mental impairment which substantially limits one or more major life activities. • 2. Record of such an impairment. OR • 3. Regarded as having such an impairment.

7. Old definitions prior to amendments • 1. “physical or mental impairment” • “any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory including speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin or endocrine: or any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness and specific learning disabilities” (www.edlaw.net, retrieved 1/3/11). • An exhaustive list is not provided.

8. Physical or mental disability that substantially limits one or more major life activities. • What is considered a major life activity?

9. Old definitions prior to amendments • 1. “substantially limits one or more major activities” • Caring for one’s self • Walking • Seeing • Hearing • Speaking • Breathing • Working • Performing manual tasks • Learning

10. Old definitions prior to amendments • 2. “record of such impairment” • Has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.

11. Old definitions prior to amendments • 3. “is regarded as having such an impairment” • Physical or mental impairment • that does not substantially limit major life activities but is treated by a school district as having such a limitation. • that substantially limit major life activities only as a result of the attitudes of others toward such impairment. • Has none of the impairments defined…but is treated by a school district as having such an impairment.

12. Americans with Disabilities Act Amendments Act of 2008 • Signed into law on 9/25/08. • Was effective 1/1/09. • Purpose: “to restore the intent and protections of the Americans with Disabilities Act of 1990.” • Affects the meaning of disability under Section 504. • Overall definition remains the same. • Impairment substantially limits major life activity • Record of impairment OR • Regarded as having impairment

13. ADAAA of 2008 • ADAAA specifies that the definition of disability under Section 504 (Rehabilitation Act) must conform with the definition disability under the ADA.

14. 3 major changes to Section 504 • 1. substantially limits • 2. mitigating measures • 3. major life activities

15. 1. “substantially limits” • Broad coverage was original intention. • ADAAA reports the definition was too narrow. • Courts reinstated a broad scope of protection be available under the ADA. • No single formula or scale should be used to measure whether an impairment “substantially limits”.

16. 1. “substantially limits” • No quantifiable standard by which to apply the “substantially limits” test. • Must consider more than the student’s grades. • Academic and nonacademic. • i.e. student with diabetes is barred from participating in class trips because of the impairment, the student’s learning is “limited”.

17. 2. “mitigating measures” • Determination of whether an impairment substantially limits a major activity shall be determined without considering the effects of mitigating measures. • Medication • Medical supplies, equipment or appliances • Prosthetics • Hearing aids/cochlear implants • Mobility devices

18. 2. “mitigating measures” • Low vision devices • Asst. technology use • Learned behavioral modification • Only mitigating measure which may be considered is ordinary eyeglasses or contact lenses.

19. 2. “mitigating measures” • i.e. A student with ADHD taking medication to subdue the symptoms cannot be denied protection simply because he uses a mitigating measure. • The medication may subdue the symptoms of ADHD but accommodations may still be needed in order to provide the same quality of education.

20. 3. “major life activities” • The list was expanded with the amendment of ADA. • Those basic activities that most people in the general population can perform with little or no difficulty, including major bodily functions.

21. 3. “major life activities” • Includes but limited to: • Caring for oneself • Performing manual tasks • Seeing • Hearing • Eating • Sleeping • Standing • Lifting

22. 3. “major life activities” • Bending • Speaking • Breathing • Learning • Reading • Concentrating • Thinking • Communicating • Working

23. 3. “major life activities” • Operation of major bodily function (include, not limited to) • Immune system • Normal cell growth • Digestive • Bowel, bladder • Neurological, cardiovascular, circulatory • Brain respiratory • Endocrine • Reproductive • Musculoskeletal

24. Other Considerations with ADAAA • Conditions that are episodic or in remission are covered when they are active. • Student with ADHD may be affected by his symptoms differently and at different times and under different conditions. • An impairment need not limit or be perceived to limit a major life activity in order for an individual to meet the “regarded as having an impairment”. • As long as the person has been subjected to discrimination because of an actual or perceived physical or mental impairment.

25. Other Considerations with ADAAA • A temporary or minor impairment with an actual or expected duration of six months or less. • Does not fall under the “regarded as having an impairment”. • An impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability. • Student with impairment that substantially limits reading but not learning.

26. Significance for Schools • Much broader universe of covered students. • Eligibility review team cannot consider mitigating measures. • If a disability is in question, individual will likely be considered. • More requests for accommodations. • May need to revisit Section 504 Procedures and forms.

27. Significance for Schools • Shift from “eligibility” to qualifications and reasonable accommodations. • Increase in internal complaints?? • Parent complaints/lawsuits?? • Requests for ACT/ISAT accommodations may increase.

28. IDEA vs. 504 IDEA Section 504 A 504 is intended to establish a “level playing field” Eliminate barriers that exclude persons with disabilities. • IDEA is remedial and often requires the provision of programs and services in addition to those available to persons without disabilities.

29. IDEA vs. 504 IDEA Section 504 No specific funding. Section 504 applies to all entities which receive federal financial assistance. All public schools receive federal financial assistance, all are covered under Section 504. • All states now accept funding through IDEA. • All states and local school districts are required to follow IDEA requirements.

30. IDEA vs. 504 IDEA Section 504 Broader definition of “disability”. More flexible. Less specific criteria to govern personnel requirements. • Specific guidelines for those considered to have a “disability”. • IDEA guidelines are specific in term of time frames, parental participation, formal paperwork.

31. IDEA vs. 504 IDEA Section 504 Covers lifespan. Examples of coverage: employment, education, public access to buildings, transportation. • Addresses the special education needs. • Ages 3 to 21.

32. Evaluation and IDEA • IDEA • Fully and comprehensively evaluated by a multidisciplinary team. • Informed and written parental consent. • Re-evaluation at least once every three years. • Does not require re-evaluation before a significant change in placement. • Independent evaluation at district’s expense if parent disagrees with first evaluation. www.ldonline.org

33. Evaluation and Section 504 • Section 504 • Information from variety of documented sources. • Decisions, evaluation data, and placement made by knowledgeable persons. Do not require written consent. Require that parent be notified. • Periodic evaluation. • No provisions regarding independent evaluation at school’s expense. • Re-evaluation required before a significant change in placement. www.ldonline.org

34. Responsibility to Provide FAPE IDEA Section 504 No IEP, requires a plan. Appropriate means an education comparable to the education provided to those who do not have a disability. Usually in general education. Related services if needed. • IEP • Appropriate education means to provide educational benefit. • May be combination of special and general education. • Related services, if required. www.ldonline.org

35. Due Process Procedures IDEA Section 504 Must provide impartial hearings for parents who disagree with identification, evaluation or placement. Does not require parental consent. Parents have an opportunity to participate and be represented by legal counsel. School usually appoints hearing officer. No “stay put” provisions. • Must provide impartial hearings for parents who disagree with identification, evaluation or placement. • Requires written consent. • Specific procedures are provided. • Impartial appointee selects hearing officer. • “stay put” provision. www.ldonline.org

36. Due Process Procedures IDEA Section 504 No requirement for parental notice prior to change of placement. Can appeal to court if party is not successful in their due process hearing. U.S. Dept. of Education, Office of Civil Rights, can sue in federal court for violation of Section 504. • Parents must receive 10 day notice to any change of placement. • Right to appeal/can recover attorney’s fees if successful in court. • U.S. Dept. of Education, Office of Special Education.

37. Is IDEA or Section 504 better? IDEA Section 504 More flexible eligibility criteria. Decision making is manageable. More legal solutions. Matt Cohen, 2009 • Service delivery is more developed and specific. • Financial supports. • More Regulations, rules, accountability.

38. When is it Appropriate to Consider a 504 Referral? • Meet the 504 eligibility criteria. • Do not qualify for special education services or are not being referred for special education. • Not benefiting from current instruction. • Being considered for retention, suspension or expulsion. • Chronic health condition. • Is “at risk” of dropping out of school. • Involved with substance abuse. • Needs physical accessibility to school or activity.

39. Examples of Who May be Protected by a Section 504 • Students • Communicable diseases (i.e. hepatitis). • Temporary disabilities arising from accidents who may need short term hospitalization or homebound recovery. • Allergies, asthma, diabetes. • addicted to drugs or alcohol (as long as they are not currently using). • 22 or older, parents with disabilities.

40. 504 and Evaluation • Determining whether a student qualifies as having a disability under Section 504 begins with the evaluation process. • Requires the “use of evaluation procedures that ensure that children are not misclassified, unnecessarily labeled as having a disability, or incorrectly placed, based on inappropriate selection, administration, or interpretation of evaluation”. www.ed.gov

41. 504 and Evaluation • Validated test materials. • Administered by trained personnel. • Address specific areas of educational need, not testing only IQ. • Selected tests show validity. • Use a variety of sources for information.

42. Evaluation and Documentation • Establish procedures to document that the evaluation information has been considered. • Discretionary. • Could includes such items as: meeting notes, evaluation reports, summaries. • Documentation should prove compliance.

43. Evaluation and Documentation • No timelines for evaluations. • Office of Civil Rights interprets the regulations as requiring evaluations to be completed “within a reasonable period of time.”

44. 504 Disciplinary Considerations and Placement • OCR states an expulsion or suspension of a student for more than 10 consecutive days constitutes a “significant change of placement.” • Before a student is suspended for more than 10 consecutive days. • Pattern that constitutes a change in placement?

45. 504 Disciplinary Considerations and Placement • Things to consider to determine if there is a pattern. • Case by case • Length of each suspension • Proximity of suspension to one another • Total amount of time excluded from school. • Must consider if the misconduct is a manifest of the disability. • If there is a connection->cannot be suspended for more than 10 days or expelled. • If NO connection->subject to regular disciplinary procedures.

46. 504 and Procedural Safeguards • Requires schools to provide a system of procedural safeguards. • Must include • Notice • Opportunity for parents/guardians to examine relevant records. • Impartial hearing with an opportunity for participation by parents/guardian and representation by counsel. • Review procedures.

47. 504 and Procedural Safeguards • Section 504 offer schools a choice. • Adopt a set of procedures specifically for Section 504 proceedings. OR • Follow the procedural safeguards required by IDEA.

48. 504 and Notice and Consent • Requires parent notification • Identification • Evaluation • Placement • Does not need to be in writing. • Suggest in writing for documentation. • Interpreted by OCR to require districts to obtain parental permission for initial evaluations. • OCR does not specify form of parental consent.

49. 504 and Complaints, Compliance, and Monitoring • A parent or student has the right to file a complaint if there is a belief of discrimination. • Initial complaints should be filed with the districts Section 504 officer. • Not having one is a violation of Section 504.

50. 504 and Complaints, Compliance, and Monitoring • Complaints may also be filed with the Office for Civil Rights. • Conduct compliance reviews and complaint investigations. • May be filed by an individual or organization. • May address an individual student, class, or systemic issue.