Transcript Section 504 Issues

YOUR ROLE IN
SECTION 504
Presenter:
Beverly R. Rickhoff
Escamilla & Poneck, Inc.
100 Travis Park Plaza
711 Navarro Street
San Antonio, Texas 78205
(210) 225-0001
Section 504 Topics
•Purpose
•Identification of 504 Students
•The 504 Law: Compliance
•Referral Process
•504 Team/Meetings
•FERPA and 504
•504 Forms
•504 Folders
•College Entrance Exams
•Additional Cases
Section 504--What is it?
•Section 504 of the Rehabilitation Act
of 1973
•Federal anti-discrimination law
•Not equivalent to special education
•Even applies to private schools and
charter schools receiving federal
financial assistance
Purpose of 504
To prohibit discrimination on the basis of
disability in any program receiving federal
funds
34 C.F.R. § 104.1
How Does a Student
Qualify?
•
3 ways to qualify:
1. Physical/mental impairment that substantially limits one
or more major life activities
2. Has a record or history of such an impairment
3. Is regarded as having an impairment by others
•
If IDEA eligible, will be protected under 504
Major Life Activity:
Includes (not an
exhaustive list):
• Walking
• Seeing
• Hearing
• Speaking
•
•
•
•
•
Breathing
Learning
Working
Caring for oneself
Performing manual
tasks
34 C.F.R. § 104.3(j)(2)(ii)
Substantially Limits
•Means an important and material
limitation
•District can make the decision on a
case-by-case basis
Letter to McKethan, 23 IDELR 504 (OCR
1994)
What is a Physical
Impairment?
Any physiological disorder or condition,
cosmetic disfigurement, or anatomical loss
affecting one or more of the following body
systems: neurological; musculoskeletal;
respiratory, including speech organs;
cardiovascular; reproductive; digestive;
genito-urinary; hemic and lymphatic; skin
and endocrine
34 C.F.R. § 104.3(j)(2)(i)
Is Pregnancy a Physical
Impairment?
No, unless:
•The pregnant student suffers complications
that substantially limit a major life activity; then
•The pregnancy may be considered a
temporary disability warranting protection under
504
29 U.S.C. Pt. 1630, App. § 1630.2(h)
What is a Mental
Impairment?
Any mental or psychological disorder,
such as mental retardation, organic
brain syndrome, emotional or mental
illness, and specific learning disability
34 C.F.R. § 104.3(j)(2)(i)
Has a Record of Such an
Impairment Means
Has a history of, or has been misclassified
as having, a mental or physical impairment
that substantially limits one or more major
life activities
34 C.F.R. § 104.3(j)(2)(iii)
Is Regarded as Having an
Impairment Means
Has a physical or mental impairment that:
a. Does not substantially limit major life activities
but is treated by a recipient as such;
b. Substantially limits major life activities only as a
result of the attitudes of others; or
c. Has none of the impairments but is treated by a
recipient as having such an impairment
34 C.F.R . § 104.3(j)(2)(iv)
So What Does that Mean?
• Even if currently not disabled, a child with a
record of a disability, or regarded as having a
disability, has to be evaluated and served
under Section 504--True or False?
• False---Only children who currently suffer
from an impairment substantially limiting
learning or another major life activity are
eligible for services—but they are still
protected from discrimination
Difference from IDEA
• IDEA lists specific types of disabling
conditions
• The disabling condition must result in
an educational need for special
education services
Some Potentially
Handicapping Conditions
under 504
•Dyslexia (if severe, may qualify under IDEA)
•Communicable diseases (AIDS)
•Temporary handicapping conditions
•Behavior disorders
•Chronic asthma or severe allergies
•Physical handicaps such as spina bifida,
hemophilia, and conditions requiring crutches
Some Other Conditions
•Other chronic or life-threatening diseases
such as diabetes or cancer
•Alcohol/drug addiction (not current use)-34 C.F.R. Part 104, Appendix A, at 386
•Heart disease
•ADHD/ADD may qualify under 504 or IDEA
(depends on how severe--meds control?)
What about Medical
Assessments?
• A medical assessment may not be
required, but it is the District’s
responsibility to arrange and pay for an
assessment, if it is determined to be
necessary
Letter to Williams, 21 IDELR 73, 77
(OSEP 1994); Letter to Veir, 20 IDELR
864 (OCR 1993)
What about Diseases?
•Section 504 does not limit or define
specific diseases
•The Department of Education gives
examples of diseases such as cerebral
palsy, epilepsy, muscular dystrophy,
diabetes, mental retardation, and
visual/hearing impairments
What about Contagious
Diseases?
•If substantially limits a major life activity
•The Supreme Court decided this issue in
the employment context in School Board of
Nassau County v. Arline, EHLR 558:228
(1987)
Arline Holding:
• The student must be placed in the regular
education environment unless it is
demonstrated that he cannot be educated
there; and
• Restrictive placement is okay if necessary to
contain current risk of contagion
34 C.F.R. § 104.34(a)
Student with Allergy:
In Mystic Valley Regional Charter
Sch., 40 IDELR 274 (SEA MA
2004), parents of child with lifethreatening allergy to peanut and
tree-nut products won on 504
claim
Mystic Holding:
•
School took many steps to accommodate:
• Parents--no products sent to school
• Staff/students washed hands
• Staff training on symptoms/how to
administer medicine
• School should have had a classroom ban
on all peanut and tree-nut products, as
well as above accommodations
Is Least Restrictive
Environment Required
under 504?
Yes. Like IDEA, to the maximum extent
appropriate, districts must educate students
with disabilities with non-disabled peers
unless education in the regular environment
with use of supplementary aids and services
cannot be achieved satisfactorily
34 C.F.R. § 104.34(a)
More on LRE:
In non-academic and extracurricular
services and activities:
District shall ensure participation in meals
and recess periods to the maximum extent
appropriate
34 C.F.R. § 104.34(b)
Program or Activity
•Includes all programs or activities of school
districts receiving federal funds, regardless
of whether the specific program or activity
receives federal funds (i.e., athletics, band,
drama, club memberships)
•Equal opportunity to participate in the
program
Non-Academic Services
• However, districts can establish eligibility
requirements even if they disproportionately
exclude students with disabilities (reasonable
accommodation standard/fundamental alteration)
• Marietta (OH) City Sch. Dist., 19 IDELR 182
(OCR 1992). District excluded students with
multiple severe disabilities from square dancing
activity
Field Trips:
• A school district may prohibit a student with a
disability from going on a field trip if it
presents an unacceptable risk to the
student's health or safety
• North Hunterdon/Voorhees Regional (NJ)
High School District, 25 IDELR 165 (OCR
1996) (excluded student with cerebral palsy
and epilepsy from attending field trips on
three occasions)
Non-Academic Services
Include:
Counseling, physical recreational
athletics, transportation, health
services, recreational activities,
special interest groups or clubs,
referrals to other agencies, and
employment
34 C.F.R. § 104.37(a)(2)
Disparate Treatment Case
• Allegany County (MD) Bd. of Educ., 40
IDELR 220 (OCR 2003), held that District did
not discriminate against student with
disability by not permitting him in band class
since he could not read music or play an
instrument, and had not auditioned for nonmusician position
Allegany Held:
•Student’s IEP determined band class
was inappropriate
•Must prove District treated differently
than non-disabled students; and
•District does not have practice of
excluding students with disabilities
What Must Districts Do to
be in Compliance with
504?
•Provide written assurance of nondiscrimination 34 C.F.R. § 104.5(a)
•Designate one or more employees to
coordinate compliance if >15 employees
•Provide grievance procedures to resolve
complaints of discrimination if >15 employees
34 C.F.R. § 104.7(a), (b)
More Compliance
Requirements
•Notice of non-discrimination in admission or
access to District programs or activities
•Childfind: Annually identify and locate all
504 qualified students (publish in local
newspapers and the student handbook)
•Annually notify students and
parents of District responsibilities
34 C.F.R. § 104.32(a), (b)
What if District Fails to
Comply?
• OCR could suspend or terminate
federal financial assistance
• Claimant entitled to jury trial
• Supreme Court has not decided if
compensatory damages are available,
but some lower courts have determined
that damages are available
How Do you Refer a
Student?
•Parent or school staff refer student to Campus
Student Support Team (CSST) to consider pertinent
information
•The CSST decides whether to refer the student for
a 504 evaluation. If not, the CSST shall consider
other interventions
Evaluation Process:
•If believed to need special instruction or
related services, the District must evaluate
before initial placement or significant change
in placement 34 C.F.R. § 104.35(a)
•Parental notice and consent required for
initial evaluation/no consent for reevaluation
Letter to Durheim, 27 IDELR 380 (OCR
1997)
504 Coordinator Should
Provide to Parent/
Guardian:
• Invitation to 504 meeting
• Copy of completed Referral form
• Copies of all related documentation
and forms, if requested
Procedural
Safeguards
•Parents can examine relevant records
•Notice of rights, including the right to a hearing
concerning identification, evaluation, or educational
placement
•A hearing conducted by an impartial person (not
necessarily an attorney) who is not an employee of
the district and who has no other conflict of interest
•Review procedure
34 C.F.R. § 104.36
Other Procedures:
• Information should be placed in the
student's folder, including all related
documentation and forms
• Copy paperwork and provide to staff
who will work on the evaluation
Who Else Can You Refer?
• Students who are referred and
evaluated but do not qualify for Special
Education
• Students who are being dismissed from
Special Education
The District Must...
•
•
Establish policies and procedures for evaluating
and placing students
Assure tests and other evaluation materials:
a. Are validated and administered by trained personnel;
b. Are tailored to assess educational need and are not
based solely on IQ scores; and
c. Reflect aptitude or achievement or other elements
which the tests purport to measure
34 C.F.R. § 104.35(b)
Re-Evaluations under 504
• Section 504 requires “periodic” reevaluations
• Unlike IDEA, there is no specified timeframe
• Districts in compliance if reevaluate the
student every 3 years
• District must provide reevaluation before any
significant change in placement
34 C.F.R. § 104.35(a)
• Note: UISD conducts annual reevaluations
What is a Significant
Change in Placement?
•Expulsion
•Series of suspensions which
exceed 10 days in a school year-depends on length/time/proximity
•Cumulative suspensions which
exceed 10 school days
What About In-School
Suspension?
• Greenville County (SC) Sch. Dist., 17 IDELR 1120
(OCR 1991), if in-school suspension for more than
10 days is equivalent educationally to out-of-school
suspension, then it is a significant change in
placement, i.e., basically sit down and be quiet.
Must be comparable to
educational services
they regularly receive
More Significant Changes...
•Transferring a student to home instruction
•Graduation from high school
•Significantly changing the composition of
the student’s class (e.g., moving the student
from a regular classroom to a resource
room)
•Change campus (e.g., middle
to high school)
What About Adjustments
in Accommodations?
• Not every adjustment in programming
will trigger the need for a reevaluation
• Standing alone, elimination of an
instructional method (team teaching)
was not found to be a significant
change in placement
Montebello (CA) Unified Sch. Dist, 20
IDELR 388 (OCR 1993)
The 504 Team
•A 504 committee/team must be made up of
individuals knowledgeable about the student,
evaluation data, and placement options
•Team should consist of counselors, school nurses,
special education representatives, teachers, and an
administrator
•Must consider all evaluation data, including teacher
and parent input forms
504 Team Requirements
•504 Team must identify an impairment, and
not just identify a symptom, i.e., "student
struggling in school, student has difficulty in
class”
•Must show how child is substantially limited
in a major life activity
504 Team Must Also...
• Consider information from a variety of
sources, including information about
the student's social or cultural
background
• Environmental, cultural and economic
disadvantages are not disabilities
• 34 C.F.R. § 104.34(c)(1)
And...
• 504 team must determine mitigating
factors that minimize or eliminate the
disability (e.g., medications control
behavior such as ADHD)
504 Team--cont’d
•Consider Special Education referral (if
not done already)
•If eligible for 504 services, shall develop
student's Individual Accommodation Plan
(IAP) and determine modifications
•If not eligible for 504 services, shall refer
the student back to the CSST for other
options
504 Team Should Consider:
• Standardized testing scores, report
cards, nurse records, teacher
observations and notes, health records,
cumulative folder information,
disciplinary referrals
• To determine accommodations
Accommodations:
• Evaluation data must support the
accommodations required by the 504
committee—don’t get carried away!
• Don’t let parents dictate what
accommodations the District will
provide if they are not necessary
What Kind of Evaluation Data
Do You Need?
• No particular form of evaluation data is
required under the law
• Draw on information from a variety of
sources and use a variety of methods,
which may include formal testing, if the
committee feels such an assessment is
necessary
For Example:
• Mishawaka (IN) Sch. Corp.,39 IDELR
10 (OCR 2002)--Mere reliance on
psychologist's report that student had
ADHD did not satisfy the statutory
requirements for evaluation
• Remember: doctor’s diagnosis not
automatic referral
Behavior Management
Plan
•504 requires Districts to develop a Behavior
Management Plan when student’s behavior
significantly interferes with his/her ability to
benefit from his/her education
•Component of FAPE
•All school officials must follow
34 C.F.R. § 104.33
Medication Administration-is it a Placement Decision?
Yes, the district should convene 504 meeting
to discuss the purpose of the medication,
identify persons responsible for administering
medication, decide appropriate emergency
procedures and consider whether additional
staff training is needed
Letter to Mentink, 19 IDELR 1127 (OCR 1993)
What Else Should the 504
Committee Do?
• Provide notice of parent/student rights
in identification, evaluation,
accommodation, placement decisions,
and due process rights
• Place documentation of meeting and
decisions in child’s 504 folder
• Advise teachers of instructional
modifications and provide copy of IAP
Recommendations:
•Section 504 Coordinator should
communicate with campus staff prior to
the meeting
•Have student participate in
development of accommodation plan if
possible
•Maintain good documentation
•Complaint process = Office of Civil
Rights Complaint
Potential Problem Areas:
•Teachers must receive and implement
accommodations – no grace period at the
beginning of school year
• School-based 504 evaluation whenever a parent
expresses concern (but must show no reason to
suspect)
•Medication – remind student to take meds
(student irresponsibility = school’s responsibility)
Chairperson’s Role During
Meeting:
• Create sample agenda of what will take
place--don’t get off track
• If reach deadlock, recess and let
everyone cool off
• Maintain control of meeting--don’t let
non-decision-makers take over or
demand things
• Tape record if needed
What if Guests Want to
Attend 504 Meeting?
• Make sure that they are knowledgeable
about the student
• Make sure that the parent/guardian
gives express permission for them to
attend as their representative
• Do not allow them to make decisions
Family Educational
Rights and Privacy Act
(FERPA) and 504
•504 does not specifically address confidentiality
issues
•Procedural safeguards must include an
opportunity for parents to examine "relevant
records”
34 C.F.R. § 104.36
More on FERPA….
•“Relevant records” has the same meaning
as “education records” under the IDEA and
FERPA
•Individuals accessing student information
must have a “legitimate educational
purpose”
34 C.F.R. § 99.31(a)(1)
Legitimate Educational
Purpose
The information requested is:
•Necessary for an official to perform
appropriate tasks - specified in his or her
position
•To be used within the context of official
agency or school business
Legitimate Educational
Purpose--Cont’d
•Relevant to the accomplishment of some
task or to a determination about the student
•The information is to be used consistently
with the purposes for which the data are
maintained
Are Test Protocols Relevant
Records?
• Yes, District must ensure that evaluation data
are documented and carefully considered so
that parents may independently assess
educational decisions made on behalf of their
children
• 34 C.F.R. § 104.35(c)(2); St. Charles (IL)
Community Sch. Dist. #303 (OCR 1990)
• Right to examine
• Beware of copyright laws
What about Test Booklets?
• Yes, they are considered relevant
records if they contain student answers
or personally identifiable information
• Keep all testing data and booklets (with
answers) in 504 folder
FERPA and 504 Forms
Don’t scribble any unnecessary notes or
comments on the sidelines of 504 forms
because they become part of the student’s
records which are accessible to parents
That Also Means…
• Don’t go back later and change
anything on a 504 form!
• If changes need to be made, then you
must convene another 504 meeting
• Remember, it is a legal document
504 Folders
•Make sure that they follow a student
between grades and schools (needs to be
a priority)
•This means requiring signatures when
folders transferred from one place to
another to hold persons responsible
Transfer of Folders:
• 504 Coordinator must be sure 504
folders contain all relevant information
prior to signing for them
• 504 Coordinator’s responsibility to
review checklist
More on 504 Folders...
•Keep Section 504 materials separate from
special education materials and out of the
student's cumulative folder
•When a student becomes eligible for 504,
give copy of plan to pertinent teachers
•On-site campus 504 Coordinators should
keep folders in a secure location
What About Work
Samples?
• If particular work samples are beneficial
to the 504 Committee in making
decisions regarding the student’s
education, then they should be kept in
student’s folder
And Still More on 504
Folders...
Keep information confidential other than for
individuals who have a “legitimate
educational purpose” in accessing the
information or other allowable release of
information pursuant to FERPA
And Furthermore...
• Keep folders organized and
presentable in case attorneys or third
parties need to review it
So What Else Should You
Do?
•Give copies of the 504 plan to student's teachers,
parents, and any other personnel who have a
legitimate educational purpose to access the
information and keep copy in 504 folder
•Create a list of authorized positions or persons
and records or specific data elements to which
they may have access
What if Parents Reject
IDEA Eligibility and
Demand 504 Plan?
• 504 Coordinators need to explain to
parents that there are many services
available for special education
Besides...
• District cannot opt to provide services
or accommodations under 504 when
child is IDEA eligible. Yankton Sch.
Dist. v. Shramm, 24 IDELR 704 (8th
Cir. 1996)
• A parent’s rejection of IDEA services
amounts to rejection of 504 services
Letter to McKethan, 25 IDELR 295 (OCR
1996)
Ending 504 Eligibility:
•
•
Don’t leave accommodation plan openended--need ending date
Make sure one of two conditions exist:
a. Disability no longer present, or
b. Disability no longer creates a substantial
limitation
•
Conduct follow-up/post-evaluation
College Entrance Exam
Accommodations
• Districts have legal obligation to provide
testing accommodations to students with
disabilities when they take standardized
college entrance exams
• As a recipient of federal funding, the
Educational Testing Service (SAT exam)
must also provide accommodations to
comply with the Americans with Disabilities
Act and Section 504
More on Testing...
• Testing accommodations/modifications
should be based on student's specific
disability and individual needs
• Responsibility shared by the district and
ETS, with the goal of minimizing
adverse effects on the student's
disability