Section 504 Update

1. Teri B. Goldman Mickes Goldman O’Toole, LLC tgoldman@mickesgoldman.com Section 504 Update

2. Federal Regulations • OCR has not proposed any new regulations since the ADAAA amendments. • OCR guidance issued in March 2009 indicates that the current regulations (primarily adopted in the 1970s) remain consistent with the ADAAA and its purposes.

3. EEOC Regulations • Congress directed the EEOC to amend its existing ADA regulations to reflect the changes made by ADAAA. • Regulations were proposed in September 2009. • Final regulations published on March 25, 2011. • Regulations became effective May 2011.

4. Highlights of the EEOC Regulations • The ADAAA does not apply retroactively. • EEOC regulations apply to all private and state and local government employers with 15 or more employees and others. • Major bodily functions include the operation of an individual organ within the body system (e.g., kidney, liver, etc.) • MLA also includes sitting, reaching, bending, and interacting with others.

5. Highlights • To have an “actual” disability or a record of a disability, the individual must be or must have been substantially limited in performing a major life activity as compared to most people in the general population. • The EEOC regulations do not define “substantial limitation” but instead provide “rules of construction.”

6. EEOC Rule of Construction • An impairment need not prevent or severely or significantly limit an MLA to be considered “substantially limiting.” • Substantially limits is not meant to be a demanding standard. • However, not every impairment will constitute a disability. • Substantially limits should be construed broadly in favor of expansive coverage to the maximum extent permitted by the ADA. • The determination of whether an impairment substantially limits a MLA requires an individualized assessment.

7. EEOC Rules of Construction • The substantial limitation standard shall be made without regard to the ameliorative effects of mitigating measures. • An impairment that is episodic or in remission is a disability if it would substantially limit a MLA when active.

8. EEOC Rules of Construction • The primary focus is whether discrimination occurred and, therefore, the determination of disability should not require extensive analysis. • Although the determination of whether a disability exists will not usually require scientific, medical, or statistical evidence, such evidence may be used if appropriate. • An impairment lasting less than six months may be substantially limiting.

9. EEOC Highlights • Confirms that the positive effects of mitigating measures may not be considered in determining if a disability exists. This means that the focus might need to be on the extent of limitations prior to the use of a mitigating measure or on what would happen if the individual ceased using a mitigating measure.

10. EEOC Highlights • ADAAA allows consideration of the negative effects of a mitigating measure in determining whether a disability exists. • The prohibition of assessing the positive effects of a mitigating measure applies only to the determination of disability. All other determinations – including whether a person requires reasonable accommodation – can take into account both the positive and negative effects of a mitigating measure.

11. EEOC Highlights • If a person with a disability uses a mitigating measure that eliminates the need for reasonable accommodation, the employer does not have an obligation to provide one. • An employer cannot require an individual to use a mitigating measure but the failure to use one may affect whether the individual is qualified for a particular job.

12. EEOC Highlights • Some impairments, due to their nature, “will virtually always be disabilities.” (e.g., deafness, blindness, intellectual disability, partially or completely missing limbs, mobility impairments requiring use of wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, MS, muscular dystrophy, major depressive disorder, bipolar disorder, PTSD, OCD and schizophrenia ). For these, the individualized assessment will be simple and straightforward.

13. EEOC Highlights • Pregnancy is not an impairment and, therefore, cannot be a disability. Impairments resulting from pregnancy may be considered a disability if they substantially limit an MLA. • An employer regards a person as having a disability if it takes an action prohibited by the ADA (such as failure to hire, demote, etc.) based on the person’s impairment or on an impairment the employer believes the individual has, unless the impairment is transitory and minor.

14. Impact on Students and Section 504 Determinations • Will OCR adopt the various positions that EEOC has taken in its final regulations? • Will OCR adopt its own regulations? • No extensive analysis vs. 504 requirement to conduct an individual evaluation. • Impact of mitigating measure analysis on student need for 504 plan.

15. Recent OCR Guidance

16. March 2009 Guidance • The ADAAA does not require OCR to amend its regulations. The regulations as currently written are valid and OCR is enforcing them consistent with the ADAAA. • OCR generally does not review the results of individual placement or other educational decisions so long as a district complies with 504 procedures.

17. March 2009 Guidance • The determination of disability must be made on the basis of an individual inquiry. • An impairment in and of itself is not a disability. • A medical diagnosis cannot suffice as an evaluation for purposes of providing FAPE under 504. • A temporary impairment does not constitute a disability for purposes of Section 504 unless its severity is such that it results in a substantial limitation in one or more MLAs for an extended period of time. Case-by-case taking into consideration both duration and substantial limitation.

18. March 2009 Guidance • Reason to Suspect – must refer for evaluation if the student needs or is believed to need “special education or related aids and services to regular education.” • “School districts may always use regular education intervention strategies to assist students with difficulties in school.” • A regular education intervention plan is appropriate for a student who does not have a disability or is not suspected of having one but may be “facing challenges in school.”

19. March 2009 Guidance • Only periodic, not triennial, evaluations are necessary. May choose to follow the IDEA requirement. • Periodic reevaluation is required before a significant change of placement. Exclusion from the program of more than 10 days is a significant change in placement. • Transferring from one type of program to another or terminating or significantly reducing a related serve may also be a significant change in placement.

20. March 2009 Guidance • Per OCR, informed parental permission is needed for initial evaluations. But the March 2009 guidance acknowledges that the law is silent as to parental consent. • The team convened to look at evaluation must include persons knowledgeable about the student, the meaning of the evaluation data and the placement options. • The team must draw information from a variety of sources and the information must be documented and carefully considered.

21. March 2009 Guidance • A medical diagnosis may be one of the sources of information but other information from other sources must be considered. • A medical diagnosis does not automatically qualify a student for 504 services. • Substantial limitation must be made on a case-by-case basis as to each individual student.

22. March 2009 Guidance • FAPE is the standard applied to students under 504. • Reasonable accommodation is a term used in the employment context. It does not apply in the school context. • A student may receive “adjustments in the regular classroom” in a 504 plan.

23. March 2009 Guidance • Implementation – teachers (including regular education teachers) must implement the provisions of a 504 plan. If the teachers fail to implement, the district can be deemed to be noncompliant with Section 504.

24. Recent OCR Investigatory Decisions

25. Bethlehem (NY) Central Sch. Dist. (3-11-09) • Student with food allergies had health plan but no 504 or IEP. • Student enrolled in culinary arts class for following school year. • Allergist said it was safe for student to be in the course with some accommodation. • School requested letter from doctor requesting more information. • School subsequently obtained a release to speak to the doctor but he was on vacation.

26. No subsequent efforts were made. • District denied student enrollment in the course and parent filed with OCR. • OCR – district regarded the student as disabled based on his food allergies and IHP and decision to deny enrollment. • OCR – decision to obtain additional information from allergist was not made by a group of knowledgeable persons pursuant to 504 procedures.

27. IHP was treated as a mitigating measure by OCR. • Reason for exclusion – possibility of, among other things, food fights in the culinary arts class.

28. Polk County (FL) Pub. Sch. (9/27/10) • District violated 504’s procedural requirements when it required a third grader to go through the RTI process before the district would evaluate him. • Parent requested evaluation but district informed her that student first had to complete general education interventions. • At time, district had sufficient evidence that student might need services because of his ADHD.

29. Oxnard (CA) Elementary Sch. Dist. (1-11-11) • District discriminated against a student by delaying his IDEA evaluation and by failing to evaluate his eligibility for 504 services. • District referred to student support team prior to conducting any evaluations, applied an incorrect eligibility standard, and failed to consider the student’s 504 eligibility until the parent requested an evaluation. • District had reason to suspect where student had been placed on ½ day schedule and was excluded from summer school for behavioral reasons.

30. Lourdes (OR) Public Charter School (3/8/11) • School district found out of compliance with 504 even when it followed the state education department’s instruction when placing a student with diabetes on homebound. The significant change in the student’s placement, coupled with the district’s failure to reevaluate the student or inform the parents of the procedural safeguards, constituted a 504 violation.

31. The school’s difficulties in hiring a school nurse did not excuse its unilateral decision to remove the student from his general education class and place him on homebound, a more restrictive environment. • The District violated 504’s LRE requirement.

32. Los Angeles County (CA) Office of Education (1-30-09) • Programs with shortened instructional day were discriminatory. • School district operated two self-contained programs for disabled students. Those students received 5 hour day compared to the typical 6-7 hours day. • Districts must ensure that the separate program offers services and activities comparable to others.

33. OCR acknowledged that when disabled students must receive different educational services there must be an individual determination through the IEP or 504 team that those are necessary.

34. Murray County (GA) Sch. Dist. (2-11-10) • District violated 504 by changing placement of student with ADHD and bipolar before completing an evaluation. • Student struck a teacher and there was a recommendation that he be placed in an alternative school. 504 team convened and decided that the behavior was related to the disability and “adopted” the recommended change in placement to the alternative school.

35. In finding violation, OCR cited to the regulation that requires a district to conduct an evaluation prior to any significant change in placement. • Per OCR, if the team finds the behavior to be related, rather than disciplining the student, the district must reevaluate the student to determine if the current placement is appropriate.

36. Hernando County (FL) Sch. District(11/9/10) • School district violated its obligation to provide a homebound high school student with an equal opportunity to participate in extracurricular and non-academic activities. • Student was not fully informed of all school activities. • Equal access means access to all extracurricular and nonacademic activities, which necessarily includes proper notice on a consistent basis.

37. Missouri 504 Due Process Decisions and Court Cases

38. Case Number 1 • Elementary aged student; straight As and gifted program; accomplished pianist. • Likes to read; does not like to write. • Transferred to district with existing 504 plan (no evaluation to support). • Handwriting as the MLA at issue. • New district began implementing the 504 but then reevaluated and determined not disabled. • Outcome?

39. Case Number 2 • High school aged student on 504 plan for many years based on medical diagnosis of “multiple chemical sensitivity.” • District reevaluated and concluded non-disabled. • Parent filed for 504 due process. • Outcome?

40. Case Number 3 • Elementary aged student with medical diagnosis of “life threatening peanut allergy.” • Student had 504 plan for the allergy. • No episodes at school. • District reevaluated under 504 and found student not to be 504 eligible. • Outcome?

41. M.W. v. Avilla R-XIII Sch. Dist. • August 3, 2011 decision • Disabled student and his parents brought two-count complaint in federal court against district. • Parents sought damages for their own alleged damages under 504/ADA. • Court found that parents had no standing to pursue such claims because they were not disabled.

42. Avilla (con’t) • Court distinguished Supreme Court Winkelman case and found that parent rights under IDEA and 504 are significantly different. • Court also concluded that parents had failed to “exhaust” administrative remedies under the IDEA. • Judgment for school district. • Court did not address the discrimination issue head on.

43. PRACTICAL TIPS

44. Practical Tips • Update policies and procedures. • Appoint 504 Coordinator and ensure knowledge and training. • Ensure Notice of Nondiscrimination is on website, handbook, publications, brochures, etc. • Have all relevant staff trained in the fundamentals of 504. • Include nurses in your training.

45. Practical Tips • Do not provide 504 plans as “consolation” prizes. • Do not provide 504 plans based solely on diagnosis. • Conduct initial and periodic evaluations. • Evaluate prior to significant changes in placement. • Understand 504’s discipline rules.