Section 504 Overview and Compliance Requirements South San Antonio ISD December 14, 2012
Part 1 Legal Overview, Child Find, and the role of the Office of Civil Rights
Legal Overview Anti-Discrimination Laws Based on Disabilities • Section 504 of the Rehabilitation Act of 1973 • Americans with Disabilities Act (ADA) of 1990 • Americans with Disabilities Act (ADA) Amendments, 2008 (effective January 1, 2009)
What is Section 504? A civil rights law that prohibits agencies that receive federal funding from discriminating against persons with disabilities on the basis of a disability.
What is the Purpose of Section 504? • Main emphasis in the schools is to ensure equal educational opportunity for eligible disabled students • Accomplished by providing appropriate classroom accommodations and services to eligible disabled students • Includes preschool and adult education, extracurricular and non-academic activities
Code of Federal Regulations (CFR) • The 504 guidelines for public school district’s responsibilities and procedures for anti-discrimination are outlined and established in the Code of Federal Regulations (CFR), under 34 CFR Part 104, primary Parts A and D. • Where specifically is the code that relates to public and private education? • These codes may be found on the U.S. Department of Education’s website at the referenced link: http://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr104.html#D
ADA Amendment • To effectuate the ADA’s purpose, the Amendments Act specifically does the following: • Directs that the ameliorating effects of mitigating measures (other than ordinary eyeglasses or contact lenses) may not be considered in determining whether an individual has a disability • Expands the scope of “major life activities” by providing non-exhaustive lists of general activities and major bodily functions • Clarifies that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active • Clarifies how the ADA applies to individuals who are “regarded as” having a disability
Office of Civil Rights Guidancefor ADA Amendments Act of 2008 • The U.S. Department of Education’s Office of Civil Rights webpage contains an updated Frequently Asked Questions to clarify the requirements of Section 504 as amended in the area of public elementary and secondary education • http://www2ed.gov.about/offices/list/ocr/504faq.html • The actual text of this 2008 Amendment is printed in the Appendix of The Dyslexia Handbook (Revised 2007, Updated 2010)
Section 504 and Child Find • In order to locate and identify students in need of Section 504 protections from anti-discrimination, all district and staff employees have an obligation to be part of a team that identifies and evaluates all students who may have a disability • Refer to Handout #1
Section 504 and Child Find Part 104, Subpart D, Sec. 104.32 – Location and notification. • A recipient that operates a public elementary or secondary education program shall annually: • (a) Undertake to identify and locate every qualified handicapped person residing in the recipient’s jurisdiction who is not receiving a public education; and • (b) Take appropriate steps to notify handicapped persons and their parents or guardians of the recipient’s duty under this subpart.
Underlying Principles of Section 504 and ADA as Amended • Civil rights statute to protect the rights of individuals with disabilities against discrimination. • Requires school districts to provide a “free appropriate public education” (FAPE) to qualified students. Substantive Due Process + Procedural Due Process _______________________ FAPE (free appropriate public education)
FAPE Special Education: • Provision of services, such as accommodations, designed to meet the educational needs of the disabled students as adequately as the needs of nondisabled students are met • Provision of an IEP reasonably calculated to confer meaningful educational benefit to the student
FAPE Section 504: • Equal educational opportunity • Provision of services plan that includes accommodations or services that level the playing field so student can access curriculum as adequately as nondisabled students
Section 504 Services Generally speaking, students who qualify only under Section 504 will: • not receive direct instructional services of a specialized nature (with the exception of dyslexia and related disorders), and • in most cases, receive related aids and services and/or accommodations in a regular education setting as specified within their Section 504 Plan. • Refer to Handout #2
Texas Dyslexia Law • In Texas, the identification and instruction of students with dyslexia and related disorders are mandated and structured by two statutes and one rule. • Texas Education Code (TEC) §38.003 (1) defines dyslexia and related disorders, (2) mandates testing students for dyslexia and providing instruction for students with dyslexia, and (3) gives the SBOE authority to adopt rules and standards for administering testing and instruction. • Chapter 19 of the Texas Administrative Code (TAC) §74.28 outlines the responsibilities of districts and charter schools in the delivery of services to students with dyslexia. • Finally, The Rehabilitation Act of 1973 Section 504 as amended in 2008 (§504) establishes assessment and evaluation standards and procedures for students. • Reference The Dyslexia Handbook, p. 6
Rights Protected under Section 504 • Right to be free from actions that discriminate on the basis of disability; • Equal right to access extracurricular activities and nonacademic services; • Right to manifestation determination prior to disciplinary changes in placement; • Right to protection from accumulations of short-term disciplinary removals that, collectively, amount to a pattern of exclusion; • Right to make complaints to the Office of Civil Rights (OCR); • Right to Section 504 Due Process Hearings; • Right to periodic evaluations. • Refer to Handout #3
Who oversees Section 504? U.S. Department of Education’s Office of Civil Rights The mission of the Office of Civil Rights is to ensure equal access to education and to promote educational excellence throughout the nation through vigorous enforcement of civil rights. http://www2.ed.gov/about/offices/list/ocr/index.html
OCR Enforcement of Section 504 How does OCR enforce Section 504 and Title II of the ADA as amended? • On-site investigation of complaints, compliance reviews, and early resolution agreement • Appeals: The complainant may appeal to the Deputy Asst. Sec. for OCR Enforcement • Noncompliance: • Initiate a termination of federal financial assistance • Refer the case to the Dept. of Justice for judicial proceedings
Section 504 Accommodation Plans are Legal Documents Failure to provide accommodations is a violation which could place specific individuals, the campus and/or district in positions where they have to defend the failure to accommodate before a hearing officer or judge.
Legal Background Review • Section 504 and the ADA are both _________ laws, overseen by the _________ that provides protection to students based upon their disabilities. • Section 504 is concerned with the ______________ that allow students to access a Free Appropriate Public Education. • All district staff are responsible for the ____________ component of Section 504.
Part 2 Section 504 Referral & Eligibility Determination
Referral Facts • Parents, teachers, nurses and school staff may refer a student for Section 504 evaluation at any time. • Referral does not have to be triggered by educational need. • A medical diagnosis is not required for a referral. • RtI process cannot be used to delay or deny an evaluation for eligibility. • A campus/district cannot require that a student complete a “round” of RtI before evaluation will be initiated. • Refer to Handout #4
Evaluations under Section 504 • Duty to evaluate is triggered by suspicion of disability and need for services • There is no right to an evaluation on demand • Placement decision must be made by a group of persons • Knowledgeable about the child • Understands the meaning of the evaluation data • Understands the placement options • Evaluation precedes delivery of services
Evaluations under Section 504 • Evaluation under Section 504 refers to the collecting, gathering, and interpreting of data from a variety of sources about the student’s educational functioning. • Parental consent is required prior to initial evaluation. • Periodic re-evals – at least every 3 years. • Parental consent is not required if reviewing existing education data
Evaluations under Section 504 Decisions to be made by the committee: • *What is the physical or mental impairment? • Is one or more major life activity or major bodily function impacted? • Is there substantial limitation? • If eligible, does the student require a services plan? • What services or accommodations are appropriate? • What needs does the student have and how does that affect the educational services? *Not a “diagnosis,” but an educational finding (diagnosis required for medical treatment, not 504 determination)
Does Every Student Referred have to be Evaluated? No. • Refusing campuses should provide a letter to the referring parent or guardian explaining the district’s reason for refusing to evaluate. • Parents have the right to appeal the refusal to evaluate.
Who is Eligible? “Students with Disabilities” means any student who…
Eligible Physical or Mental Impairments Including but not limited to (34 CFR Sec. 104.3): • Any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological, musculosketal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic, and lymphatic, skin, and endocrine. • Any mental or psychological disorder , such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. • Traumatic Brain Injury (TBI) – for more information refer to Traumatic Brain Injury (TBI) Resource Document: Re-entry of Students with a TBI to the School Setting http://www.tea.state.tx.us/index2.aspx?id=2417494529
Major Life Activities(include, but not limited to) • Breathing • Caring for oneself • Hearing • Learning • Performing manual tasks • Seeing • Speaking • Walking • Working • Bending • Communicating • Concentrating • Eating • Lifting • Operation of a major bodily function • Reading • Sleeping • Standing • Thinking
Mitigating Factors & Eligibility • Students are disabled under Section 504 if they have a physical or mental impairment that WOULD substantially limit them in a major life activity IF THEY WERE NOT taking advantage of mitigating measures. • Mitigating factors cannot be considered when considering the limits on life activities, but can be considered when determining accommodations. • The only exception would be typical eye glasses or contacts.
Mitigating Factors: Examples • Reasonable accommodations • RtI or General Ed Dyslexia interventions • Implanted devices • Medical equipment/supplies • Hearing aids • Cochlear implants • Mobility devices • Oxygen • Therapy equipment/supplies • Assistive technology • Learned behavior or adaptive neurological modifications • Medication
Episodic Conditions Episodic conditions evaluated as if active: • Conditions with variable ups and downs (e.g., seasonal asthma, ADHD, epilepsy) • Evaluation must be conducted as if condition was in its most active or worse state
Conditions in Remission Conditions in remission evaluated as if active: • Conditions that are gone, but could return • Evaluation must be conducted as if condition was in its present, full-blown state • Examples: student who has cancer, but the cancer is in remission; student who has sickle cell anemia
Dyslexia Evaluation: Domains to Assess Academic Skills Cognitive Processes • Letter knowledge (name and associated sound) • Reading real and nonsense words in isolation (decoding) • Reading fluency (both rate and accuracy should be measured) • Reading comprehension • Written spelling • Phonological/phonemic awareness • Rapid naming
Dyslexia Evaluation: Additional Areas for Assessment Based on the student’s academic difficulties and characteristics, additional areas that may be assessed include the following: • Vocabulary • Listening comprehension • Oral expression • Written expression • Handwriting • Orthographic processing • Mathematical reasoning • Intelligence
Dyslexia Evaluation: ELLs What are the additional guidelines for evaluation for dyslexia in ELLs? • Additional data gathering • Additional assessment • Interpretation by personnel trained in bilingual assessment and interpretation procedures • Recommended involvement of LPAC (Committee)
Medical Conditions • If a student’s medical condition requires that others outside of the school nurse know about the condition or to take actions to accommodate the student, Section 504 should be considered. • School nurses must participate in all Section 504 meetings involving medical conditions. • School nurses will ensure that all appropriate medical orders are obtained from the student’s medical providers.
Technically Eligible Students • A student whose condition is fully addressed by use of mitigating measures, and thus performs adequately in all domains of school functioning • Eligible for Section 504 but would not receive a 504 services plan • Challenge will be keeping track of these students for 3 year re-evals and MDR
Technically Eligible Students What services do the they receive? • Right to be free from actions that discriminate on the basis of a disability • Right to MDR prior to disciplinary changes in placement • Right to protection from accumulations of short term disciplinary removals (OCS) • Right to make complaints to OCR • Right to Section 504 Due Process Hearings • Right to periodic re-evals • Equal right to access extracurricular activities and nonacademic activities • For further information, reference “An Overview of Section 504 Basics” page 13
ADHD (DSM-V) • Onset of symptoms before age 12 • Pervasive across at least 2 settings (e.g., home and school) • Additional characteristics listed in the DSM-IV currently, and in 2013, the DSM-V
Speech Impairments • Speech impairments should be referred for Special Education evaluation, and should not be evaluated for under Section 504. • However, it is very important for all staff to consider the impact of speech impairment on the student’s acquisition of reading skills. • There is a close association particularly with speech sound disorders and characteristics of dyslexia which can impair reading development.
Temporary Impairments • Temporary impairments lasting for less than 6 months typically do NOT qualify for Section 504. • Campus should work with student who has the temporary impairment through a health plan. • Students who need accommodations may receive them by completing the appropriate school forms documenting the temporary impairment and needed accommodation.
Discipline & Manifestation Determination Some students will need behavioral intervention plans that address additional conditions for handling student conduct and responding to student’s behavior.
Discipline & Manifestation Determination 2 Questions for Manifestation Determination: Question #1: Was the conduct in question caused by, or directly and substantially related to the student’s disabilities? Question #2: Was the conduct in question the direct result of the school’s failure to implement the student’s Section 504 plan, if there was any such failure?
Who Determines Eligibility? A committee of people who know the student best: • Someone knowledgeable about the student • Someone capable of understanding the evaluation information • Someone knowledgeable about accommodation/placement options • Refer to Handout #5
Further information needed? What happens if the committee does not have enough information to determine eligibility? The team should: • discuss additional information needed. • obtain signed consent from the parent for any identified evaluations or testing, or a signed release form that allows the school to obtain information from the student’s medical providers. • agree to meet again when the information is available. • contact the District Section 504 Coordinator for assistance in obtaining additional evaluations.