Presented by: Conde J. Kunzman SELPA Director Shasta County [email protected]

July 2009

What Is Section 504?

Section 504 is a federal civil rights statue that prohibits discrimination/harassment on the basis of a disability

What Does Section 504 Actually Say?

“No otherwise qualified handicapped individual… shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…” 29 U.S.C. Subsection 794 (1973)

Section 504 Enforcement

 Section 504 is enforced by the U. S. Department of Office for Civil Rights  Violation of Section 504 may also result in civil liability

Type of legislation: Original Passage: Coverage

IDEA

Funding act 1975 Students 3 years to age 22

Section 504

Civil rights act 1973

ADA

SAME as § 504 1990 FAPE: Special education + related services Administering Agency: OSEP + SEAs Eligibility Definition 2 essential elements 1) 13 categories 2) need for spec ed.

Students K – post secondary » employees » facilities Special or regular education and related services Student is compared to the average OCR (+EEOC) SAME as § 504 SAME as § 504 SAME as § 504 3 essential elements: 1) impairment 2) major life activity 3) substantial SAME as § 504

3 Phases of Section 504

 Stage 1: Awareness  1970’s disability movement  Stage 2: Constriction  Stage 3: Expansion  Court cases:   Sutton 1999 Toyota 2002  January 1, 2009 - ADAAA

PHASE 1

 Awareness  1973  1977 the regulations needed to enforce Section 504 were signed   Accessible buildings Curb cuts  Very little impact on schools

SECTION 504 PHASE 2: CONSTRICTION

 Sutton v. United Airlines (1999)  Mitigating factors considered when evaluating if a person has a “substantial limitation” IDEA  Toyota v. Williams ( 2002)  Severely restricted an individual from engaging activities of central importance & impairment was permanent or long term

SECTION 504 STAGE 3: EXPANSION

 ADA Amendments Act  Effective 1/1/09  In rejecting a series of U.S. Supreme Court decisions, the new law is intended to reinstate the broad scope of protection for individuals with disabilities.

SECTION 504 STAGE 3: EXPANSION

 Section 504, unlike the IDEA, “requires a comparison between the treatment of disabled and nondisabled children, rather than simply requiring a certain level of services for each disabled child.”  Mark H. v. Lemahieu (9 th Cir. 2008) 513 F.3d 922)

SECTION 504 STAGE 3: EXPANSION

 Broadens the definition and coverage of “disability” under ADA and the Rehabilitation Act.

 Ensures that individuals who compensate for their disabilities are protected from discrimination.

 Clarifies that “substantially limits” does not mean “significantly restricts.”

EXPANSION - ADA Amendments Act

 Impairment that limits one major life 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.

Section 504/ADA Amendments Act

 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

Concentrating Thinking Learning Reading

ADA Amendments Act

 Main focus of the ADAAA  Employees  Iraq veterans  Changes may or may not impact K-12 practices  Form D

FORM D

 The team must focus on the major life activity as a whole (e.g. learning), not on a particular class (e.g. math) or sub-area (e.g., socialization; study skills)  Substantial limitation means: A.

unable to perform a life activity that the average student of approximately the same age can perform

B.

OR significantly restricted as to the condition, manner or duration under which a particular life activity is performed as compared to the average student of approximately the same age. The impairment must be substantial and somewhat unique, rather than commonplace, when compared to the average student of approximately the same age.



Site Implications

Increased role for school nurse  Make an educated estimate of the mitigation of medication  Ask parents to bring in medical information and consider the contents of the evaluation. The team should modify its position on eligibility if appropriate.

 Do a thorough and complete evaluation of students in all areas of suspected disability  Forest Grove School District v. T.A.

 RtI implications   Tier 2 or 3 interventions Special education referral  IDEA regulations regarding consent revocation  Perform Child Find obligation

Key Points

 Common regular education interventions such as RtI may eliminate existence of a “substantial limitation”  Standard is to compare student to an “average student”. This means you compare student against chronological peers in the entire state or country. Different standard of FAPE than I.D.E.A.

 Do not consider mitigating factors when determining whether an impairment is substantially limiting

 Physician or psychologist opinion as to student’s eligibility status is only one source of information the team should consider. Remember, the team is making an educational decision, not a medical decision.

 Students eligible under I.D.E.A. are not entitled to a separate Section 504 plan.

Temporary Disabilities

 Determination must be made on a case-by-case basis, taking into consideration the severity and the duration of the impairment, typically 6 months

Procedural Requirements

 Notice to parent of evaluation, meeting, and notice of results/actions.  Form A  Form D  Form F  Appropriate Team Membership, parent and persons knowledgeable about the child, meaning of evaluations and placement options.

 Form C

 Parent rights must be provided  Form B  Parent Permission must be received prior to evaluation  Form A  Ensure appropriate time limits are set  Same as I.D.E.A

 School representative and parents should organize and review all data prior to Section 504 meeting  Form C

Developing a Section 504 Plan

 Identify student’s disability, major life activity impacted, and educational impact of disability.

 Design a program to suit student needs  FAPE = special ed.

and/or

regular education + related services  Be sure accommodations are succinct and realistic  Review each Section 504 Plan at least on an annual basis or upon any significant change in placement.

Local Grievance Procedure

 Identification, evaluation, or placement decisions may be appealed by a written request.

 Form J  Mediation may be used to resolve areas of dispute  Form B    List your district’s 504 Coordinator Place district’s 504 Coordinator on your website Contact the SELPA office if needed  After mediation or impartial hearing, a written decision must be provided to person making appeal

Child Find Requirement

 The District has an affirmative duty to conduct a “child find” at least annually.

 District must “identify and locate” every qualified disabled child residing in its jurisdiction including pre-schoolers, homeless, and those attending private school.

Child Find (con’t)

 Teachers and administrators must receive training on the identification of students suspected of having a disability.

School Wide Compliance

 Annually identify and locate all Section 504 qualified students (Child Find)  Pamphlet available on SELPA website  County wide tracking mechanism  Annually notify persons who are disabled and their parents of the District’s responsibilities under Section 504.

 Provide parents with procedural safeguards.

Useful References

 P.A. Zirkel,  Section 504, the ADA and the Schools  Two-volume reference updated ANNUALLY and available from www.lrp.com

 P.A. Zirkel,  §504 / ADA Eligibility Determinations  West’s Education Law Reporter (in press)

References (con’t)

 Section 504 and ADA: Providing Student Access – A Resource Guide for Educators, 3d edition  A guide providing forms and policy templates (including a CD) for use by school districts and available from www.casecec.org

Useful References (cont.)

 npl.ly.gov.tw/pdf/6538.pdf

 One of the several sources for the specific statutory language, which on legal databases will be available under these official, alternative citations:  122 Stat. 3554 and U.S.C.

§ 12101

et seq

. (2008)

Thank You.