Transcript SECTION 504, THE ADA AND SCHOOLS

SECTION 504, THE ADA AND
SCHOOLS
By Conde Kunzman – Shasta County Office of Education
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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.
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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.

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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)
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The regulations were signed by Education
Secretary Riley on April 5, 1977.
http://www.npr.org/programs/wesun/features/2002/504
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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
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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.

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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!

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Program Accessibility
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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)
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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
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DEFENSIBLE DISCIPLINE
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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.
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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.
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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.
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Defensible Discipline

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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:
1. If the misconduct was caused by, or had a direct
and substantial relationship to the child’s
disability; or
2. If the misconduct was the direct result of the
district’s failure to implement the 504 plan.
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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.
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COMPONENTS OF A 504
PLAN
Templates are available
Forms A-H
Behavior Plan from PENT website
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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.
2. Assessment – Relevant data needed to assess
the nature and extent of the disability.
3. Educational Impact – How the disability affects
the child’s education.
1.
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Procedures & Policies
Procedural Safeguards (34 C.F.R. § 100.36)
1. Right to have an evaluation that draws on
information from a variety of sources.
2. Right to be informed of proposed actions
related to eligibility, placement, and plan for
services (i.e., right to notice).
3. Right to examine all relevant records, including
those obtained through investigations and
interviews.
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Procedures & Polices
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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.
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Procedures & Policies
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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.
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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)
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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.
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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
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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.
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DON’T assume FAPE under
Section 504 is the same as FAPE
under the IDEA
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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.
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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.”
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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]
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Ensure that 504 evaluations
meet procedural requirements
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Properly Assess for Eligibility
Two main questions should be addressed
when considering student eligibility under
Section 504:
1.
2.
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)?
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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.)
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The Five Major Changes to Section 504
Section 504’s eligibility language should be
read more broadly.
2. The Section 504 Committee should
consider impairments that are episodic or
in remission
3. Congress added new major life activities,
including major bodily functions
4. EEOC’s definition of substantial limitation
was rejected as too high a standard
5. A new mitigating measures rule applies to
substantial limitation.
1.
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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
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READ, the ADA
Amendments Act
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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.
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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.
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ADAAA – New Criteria

Operation of major bodily function,
including immune system, normal cell
growth, brain, respiratory, endocrine,
bowel, bladder, digestive, neurological,
circulatory, reproductive.
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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)
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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
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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
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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”
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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
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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
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Episodic impairments
The school has a duty to evaluate where
the impairment, although episodic,
substantially limits a major life activity
when active
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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
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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
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Episodic/Technical 504 Plans
Student is not exited from Section 504
between episodes
 The 504 plan is paused until needed again
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Impairments in Remission

“impairment that is in remission is a
disability if it would substantially limit a
major life activity when active”
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Looks back the dormant impairment and
asks how it would impact if active
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Remission vs Episodic

Remission seems to mean conditions that are
conditions that were once present but have
not returned
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Episodic means conditions are cyclic
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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?
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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.
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Evaluation Concerns

How would such a student be identified
as in need of evaluation?
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SOME EVALUATION CONCERNS
Question 31 in the Q and A
“A recipient…shall conduct an evaluation… of
any person who, because of handicap, needs
or is believed to need, special education or
related services before taking any action with
respect to the initial placement of the person
in regular or special education and any
subsequent significant change in placement”
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Some Evaluation Concerns
Where is the “need” triggering the duty to
evaluate for a disability in remission?
No need = no duty to evaluate
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54 IDELR (OCR 2009)

“The procedures also state that a student
is not eligible under Section 504 as a
student with a disability if the student
does not need Section 504 services in
order for the student’s educational needs
to be met, which conflates the
determination of disability with placement
and services decisions, which should be
separate.”
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3 Prongs of Eligibility
Any person who:
1. has a physical or mental impairment
which substantially limits one or more life
function
2. record of impairment -or3. is regarded as having such an
impairment
34 CFR 104.3
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3 prongs of eligibility
“It is rare for [prongs 2 and 3] to be used
in elementary and secondary student
cases. They cannot be the basis upon
which the requirement for FAPE is
triggered.”
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Evaluation Concerns

Only those eligible under Prong 1 get a
Section 504 plan and FAPE
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1
evaluation
Absent school suspicion of need for services,
there is typically no duty for the school to
refer a student for Section 504 solely on the
basis of an impairment in remission
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2
evaluation
Should the parents refer the student for an
evaluation on the basis of an impairment in
remission, the school must either evaluate the
student or refuse to evaluate and provide
notice of Section 504 rights to parent
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3
evaluation
If the student is eligible, determine whether a
Section 504 plan is required
Eligibility and need for a plan are separate
determinations
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Properly Assess for Eligibility
A
student must be evaluated by the school
and the appropriate professional staff in the
student’s native language.
 Information
should be considered and
documented from a variety of sources and
materials.
 District
must provide relevant data needed
to assess the nature and extent of the
handicap, and recommend services, if any are
needed.
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Medical Eligibility
If district receives a medical diagnosis, the
appropriate staff member should contact the
parent and medical provider, and conduct
any supplemental assessment necessary to
confirm the diagnosis. Remember
 Medical diagnoses alone may not be
sufficient to trigger eligibility.
 Even if a disability is documented, one must
still analyze whether it substantially limits a
major life function.
 Cannot legally rely on only one assessment
measurement item to determine eligibility.

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
Remember that the Section 504 duty to
evaluate is triggered when the school
believes a student has a current disabilityrelated need for service.
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How do you screen out the
positive impact of mitigating
measures like medication?
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
The mitigating measures rule only applies to
eligibility. It does not apply to the
determination of whether the student needs
a 504 plan.
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An exception:
The Section 504 Committee must consider
the positive impact of ordinary eyeglasses
and contact lenses.
Where the student’s vision is not
substantially limited due to glasses, the
student does not qualify
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NEXT STEPS
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1. So how should we proceed?
Watch for clarifying official guidance on the
impact of the ADA amendments to the
functions and duties of public schools
under Section 504.
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2. Update your Section 504 Forms
Indicate your school’s understanding of
the ADAAA’s emphasis on broad eligibility
 Recognize the new major life functions
including reading, and the inclusion of
major bodily functions
 Remove references to the EEOC’s
definition of substantial limitation

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3. School and Parent
Remember that the Section 504 duty to
evaluate is triggered when the school
believes a student has a current disabilityrelated need for services.
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4. Use Episodic/Technical 504 Plans
Be careful denying eligibility to students
whose conditions although episodic, can
reach the point of substantial limitation
when active
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5. Mitigating Measures
Understand that the plain language of the
changes requires Section 504 eligibility to
be determined without regard to the
ameliorative or beneficial impact of
mitigating measures.
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6. Calibrate “substantial limitation”
Train your employees so that they
understand the changes you are making
to your forms and procedures and the
new approach to Section 504 eligibility.
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7. Use RtI Effectively
Continue to develop intervention services
for all students and document your
efforts.
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8.Procedures & Policies
Best Practice
When exiting a student from 504…
Reevaluate the student to confirm ineligibility
Provide parents with notice that student no
longer qualifies for 504
Document the basis for exiting the student
Provide procedural safeguards to
parents/guardians
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Questions?
SECTION 504
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