SECTION 504 OF THE REHABILITATION ACT 1

Purpose • Nondiscrimination statute • Protects a qualified individual with a disability from being discriminated against on the basis of the disability in any program that receives federal financial assistance • NOT a funding statute 2

Who is Eligible?

• Very broad range of individuals are protected by 504 • An individual with a disability under 504 means any person who: – has a mental or physical impairment that substantially limits one or more major life activities; or – has a record of such an impairment; or – is regarded as having such an impairment 3

Physical or Mental Impairment •

Physical -

any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems -- neurological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin and endocrine 4

Physical or mental Impairment Cont.

•

Mental -

any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disability • There is NOT a comprehensive list of impairments under 504 5

Examples of Disabilities Under 504 – orthopedic, visual, speech or hearing impairments – cancer – heart disease – asthma – dyslexia – diabetes 6

Examples of Disabilities Under 504 Cont.

– broken limbs – ADHD/ADD – AIDS – recovering alcohol or drug addicts – epilepsy – muscular dystrophy – multiple sclerosis – all disabilities covered by IDEA 7

IDEA and 504 • Note: any student who qualifies for services under IDEA is also covered by 504 – Compliance with IDEA is sufficient in these cases to satisfy the requirements of 504 8

Major Life Activity • Learning, caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing or walking 9

Substantial Limitation •

Substantial limitation

in any major life activities due to a physical or mental impairment qualifies an individual for eligibility for services under 504 • Environmental, cultural and/or economic disadvantages are NOT covered 10

Don’t Get Snagged on Prongs 2 and 3 of Eligibility • 2 nd and 3 rd prongs of 504 eligibility cover individuals with a history of a disability or those perceived as having a disability • While a “record of” an impairment or being “regarded as having” an impairment by a district gives rise to anti-discrimination protection under 504, these prongs to not oblige the school to provide FAPE 11

Don’t Get Snagged on Prongs 2 and 3 of Eligibility Cont.

• Since the student qualifying under prong 2 or 3 does not, in fact, HAVE a mental or physical disability, there can be no need for special education and related aids and services • Put more bluntly -- these two prongs of the definition are legal fictions.

• District has no duty to refer, evaluate, or place a student who qualifies under prongs 2 or 3 12

Don’t Get Snagged on Prongs 2 and 3 of Eligibility Cont.

• Example under prong 2 – a child suffered from bone cancer in his leg at age 6, and went into full remission with no substantial relapses. A coach may not prevent the child from trying out for the team simply because of the child’s medical history. That would constitute discrimination based on the child’s record of a past disability.

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Don’t Get Snagged on Prongs 2 and 3 of Eligibility Cont.

• Example under prong 3 – (this is extremely rare. This is a student who does not meet the prong one requirement, but is mistakenly regarded by the school district as if he did.) A child from a family with a history of TB enrolls in school. Although the child does not have TB, the teacher, who knows the family history, sits the child in the back of the class and neither interacts with the child nor allows other children to be in close proximity to the student. This is discrimination based on an incorrect perception that the child has a disability 14

School District Responsibilities • Child find - district must undertake efforts to identify and locate every qualified person residing in the district who is not receiving a public education • Annual notice -- annually, district must take appropriate steps to notify handicapped persons and their parents or guardians of the district’s duty 15

School District Responsibilities Cont.

• Referral process -- must have a referral process in place • Evaluation system - – preplacement evaluation – evaluation must be done prior to any subsequent change in placement – periodic reevaluation 16

School District Responsibilities Cont.

• Evaluation criteria -- has a broader meaning than just formal test instruments – no requirements for evaluation to address specific areas or to include specific tests – must use a variety of data • FAPE -- must provide free appropriate public education 17

School District Responsibilities Cont.

• Placement -- placement decisions must be made by a group of knowledgeable persons and must be based on a variety of data – 504 committee consists of a group of persons knowledgeable about the child, the meaning of the evaluation data and the placement options – no requirement that the group include parent – plan should be in writing and should be specific 18

School District Responsibilities Cont.

• LRE -- services must be provided in the least restrictive environment • Parent procedural rights -- these include notice, an opportunity for parents to examine relevant records, an impartial hearing and a review procedure. Compliance with IDEA meets these requirements 19

School District Responsibilities Cont.

• Hearing procedure -- district must develop a process by which 504 complaints can be heard and decided. – hearing officer must not be an employee of district or related to board members – hearing officer must be paid by district as an independent contractor 20

OCR Examples of Accommodations • A student with a long-term, debilitating medical problem such as cancer may need a class schedule that allows for rest and recuperation following therapy 21

OCR Examples of Accommodations Cont.

• A student with a chronic medical problem such as kidney or liver disease may have difficulty walking distances or climbing stairs. This student may require a parking space close to school entrances, extra time between classes or other types of accommodations to conserve the student’s energy 22

OCR Examples of Accommodations Cont.

• An emotionally or mentally ill student may need an adjusted class schedule to allow time for regular counseling or therapy • A student with arthritis may have persistent pain, tenderness or swelling in the joints and may require a modified physical education program 23

OCR Examples of Accommodations Cont.

• A student with epilepsy who has no control over seizures, and whose seizures are stimulated by stress or tension, may need accommodations for stressful activities as lengthy academic testing or competitive endeavors in PE 24

504 and the Student with ADHD •

Does every student identified with ADD/ADHD qualify for services under 504?

Not on the basis of ADD/ADHD alone. There must also be a substantial impairment of a major life activity.

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504 and the Student with ADHD Cont.

•

Must a district evaluate every child suspected of having ADD/ADHD for services under 504?

There is no absolute right to an evaluation under 504. If the parent requests an evaluation, but the district does not believe that the child is in need of special services, it may refuse to evaluate. Parent must be informed of their rights to challenge the decision.

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504 and Discipline • OCR letters have issued “policy letters” which make it clear that the process to be followed under 504 is similar to the one followed under IDEA • A series of short-term suspensions that are each 10 days or fewer in duration may create a pattern of exclusions that constitute a significant change in placement 27

504 and Discipline Cont.

• Three factors are relevant to the determination as to whether a series of short-term suspensions constitute a change in placement – – Length of each suspension – Total amount of time the student is excluded from school – Proximity of the suspensions to each other 28

504 and Discipline Cont.

• For removals constituting a change in placement, the 504 committee must conduct a MDR to determine if the misconduct was related to the disability 29

Consequences for Violating 504 • OCR is watchdog for Section 504 • Parent may file complaint with OCR alleging the district has failed to identify, evaluate and/or provide appropriate services to a student – OCR will investigate 30

Consequences for Violating 504 Cont.

– Investigation may be short and simple or it may take months to complete and require hundreds of hours of staff time and thousands of pages of documentation – If OCR finds the district has discriminated, the district can voluntarily comply or risk loss of all federal funds 31

Consequences for Violating 504 Cont.

• Parent may request Section 504 due process hearing – different from IDEA hearing • Parent may file a lawsuit alleging a violation of 504 – under certain circumstances, the district may be liable for damages or other relief 32

SECTION 504 OF THE REHABILITATION ACT 33