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Chapter 15 Section 504 ADA Co-Presented by:

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1 Chapter 15 Section 504 ADA Co-Presented by:
Candy Dunn, Director of Special Education IU1 and Megan Marie Van Fossan, McGuffey School District M-

2 Agenda Why are we here? Self Assessment History ADAAA 08 Definitions
Evaluation/Eligibility Service Agreement and Other Forms Grievance Procedures Self Assessment (answers) Q & A

3 Why Are We Here? To provide an overview of Chapter 15 - Section 504 of the Rehabilitation Act of 1973 and the revisions effective 2009. To provide an update regarding changes in the ADA and Section 504 Rehabilitation Act. To compare IDEA requirements with Section 504. To provide an overview of process, procedures, forms, parents rights and discipline.

4 Self Assessment (This is not a cooperative learning activity)

5 A Guiding Quotation “Some kids need special education…
Others need something special in their education.” Education Week, June, 1998

6 3 Phases of Section 504 Phase 1: Awareness 1970’s disability movement
Phase 2: Constriction Phase 3: Expansion 1970’s disability movement Court cases: Sutton 1999 Toyota 2002 January 1, ADAAA 6

7 Section 504 - Phase 1 AWARENESS
1973 regulations needed to enforce Section 504 were signed Accessible buildings Curb cuts Very little impact on schools Section 504 is a part of a piece of federal legislation—the Rehabilitation Act of The law prohibits discrimination on the basis of disability in any program that receives federal funding. So of course application of this law is not restricted to services provided by public schools. Any publicly funded program, or partly publicly funded program, is subject to this law. Section 504 is a federal anti-discrimination law that protects the rights of individuals with disabilities in programs and activities that receive federal financial assistance from the U.S. Department of Education (29 USC §794,701 et seq.). Recipients of this federal financial assistance include public school districts, institutions of higher education, and other state and local education agencies. It requires a school district to provide a “free and appropriate education,” (FAPE) to each qualified student with a disability who is in the recipient’s jurisdiction, regardless of the nature or severity of the student’s disability (34 C.F.R. § (a). Under Section 504, FAPE provides regular or special education and related aids and services that are designed to meet the needs of individuals with disabilities as adequately as the needs of individuals without disabilities are met. 34 C.F.R. § (b)(1)(i). Essentially Section 504 was designed to "level the playing field," to ensure full participation by individuals with disabilities.

8 Section 504 - Phase 2 CONSTRICTION
Sutton v. United Airlines (1999) Mitigating factors considered when evaluating if a person has a “substantial limitation” Toyota v. Williams ( 2002) Severely restricted an individual from engaging activities of central importance & impairment was permanent or long term IDEA 8

9 Section 504 - Phase 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. 9

10 Section 504 - Phase 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.” 10

11 Section 504 - Phase 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.” 11

12 EXPANSION ADA Amendments Act
Impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Examples include: epilepsy, asthma, diabetes, cancer, major depression, and bipolar disorder 12

13 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 13

14 Section 504: Disability Defined
Physical or Mental Impairment** Major Life Activities** Record of Impairment** Regarded Impairment** Physiological disorder, contagious disease, cosmetic disfigurement or anatomical loss in one or more system: Neurological Musculoskeletal Respiratory Cardiovascular Reproductive Digestive Bowel * Genito-urinary Hemic Lymphatic Skin Endocrine Immune System *** Normal Cell Growth *** Bladder *** Functions *** Mental or psychological disorder including: Mental retardation Organic brain syndrome Emotional or mental illness Specific learning disabilities Major life activities include: Self-care Manual tasks Walking Seeing Hearing Speaking Breathing Sitting Standing *** Reaching Thinking *** Concentrating *** Reading *** Communicating *** Interacting with others Learning Working Eating *** Sleeping *** Lifting *** Bending *** The individual has: A history of impairment    A record of having been misclassified as having an impairment An impairment not limiting a major life activity, but treated as disabled by the covered entity No impairment, but treated as disabled by the covered entity Substance Abuse (recovering alcoholic or addict* Show chart handout on WIki * Does not include current, illegal drug abusers ** (34 Code of Fed Reg. Part 104.3) *** Added in new amendments by Congress effective January 1, Non-exhaustive list.

15 Concentrating Thinking Learning Reading

16 Section 504 vs. IDEA 504 Eligibility
Has a physical or mental impairment Impairment substantially limits one or more major life activities Requires services to meet educational needs as adequately as needs of non-disabled students Meets one or more definitions of IDEA disability categories Disability adversely affects the student educational performance Requires special education and related services (specially designed instruction)

17 Section 504 vs. IDEA Remedial – often requiring the provision of programs & services in addition to those available to persons without disabilities. Students sometimes granted “more” services than children without disabilities. Additional funding Establish a “level playing field”; eliminate barriers that exclude persons with disabilities. Precludes hurdles to participation No funding The definition of a disability is much broader than the definition under IDEA. Schools often drag their feet in providing needed services to children under Section 504 because of the lack of funding but their legal obligation may be no less than IDEA. LEAs do not receive funding specifically for the implementation of non-discrimination laws, but are not excused from making expenditures that are necessary to ensure equal access in all settings where this law applies. Additionally, while federal funds are provided for implementation of IDEA, under Section 504, federal funds are not provided, although the obligation to comply remains. Cost considerations do not limit a district's responsibility to provide FAPE under Section 504. 17

18 504 and ADA are Civil Rights Acts
Guarantee non discrimination for “unalterable characteristics” Guarantee “equal access” Section 504 is enforced by the U. S. Department of Office for Civil Rights Violation of Section 504 may also result in civil liability These laws are Civil Rights Acts and to fail to provide the protections would be a violation of Civil Rights law. WHAT HAPPENS IF A DISTRICT DOES NOT COMPLY WITH SECTION 504? OCR attempts to bring a district into voluntary compliance through negotiation of a corrective action agreement. If this is unsuccessful, OCR may initiate proceedings for suspension or elimination of federal funds that school districts receive for programs and services (Executive Order 11914, 41 Fed. Reg.17871(1976). OCR also may refer the case to the Department of Justice for judicial proceedings.

19 But What About Special Ed?
504 is simpler, less time-consuming 504 generally provides supports and accommodations vs. services or modifications Keeps some kids out of Special Education M- Basically, if the student needs special ed services, or goals, or regular monitoring, the IEP is the best choice.

20 Aren’t These Kids All on IEPs?
Not necessarily For an IEP, the student needs to have the disability and also require specially designed instruction IEPs are limited to 13 specific handicapping conditions, 504 is much broader F- Discuss some cases where kids are not Special Education eligible. Kids in wheelchairs, with orthotics, asthma, etc.

21 Non-Disabled § 504 IDEA

22 Child Find Triggers Parent requests an evaluation or 504 plan
Suspension or expulsion is being considered Academic performance is lower than expected Student is evaluated and is not IDEA eligible Student exhibits a chronic medical problem

23 More Triggers Student transfer to SD with a §504 plan from another district Student is chronically absent due to medical/health issues Student receives medication during the school day Student formerly found not eligible due to mitigating measures

24 Annual Notice On or before the first day of the school year, the district must inform parents of enrolled students that the district: does not discriminate against protected handicapped students and the district’s responsibilities under Chapter 15 Notice may be included in a document reasonably expected to reach the parents of students enrolled in the district (e.g. school calendar or brochure) McGuffey sends with bus assignments Show PDE Sample Annual Notice to Parents

25 How is a Referral Made? Parent request in writing for a 504/Chapter 15 evaluation School Staff are concerned about the presence of a disability or suspected disability Site administrator for 504 should proceed with a Written Notice explaining why either the parent or the district is seeking a 504/Chapter 15 evaluation and include a copy of the Procedural Safeguards Within 25 school days of receipt of the parents’ written request for the provision of service, the district shall evaluate the information submitted by the parents and send a written response to the parents’ request

26 The Steps Student evaluated Team meets Eligibility Determined
(If eligible) Service Agreement written Agreement implemented and monitored Manifestation Determination (Suggests to follow Chapter 14) Reevaluation if substantial changes F- This is a lot less complicated than Special Education.

27 Evaluation Presence of the Disability
Impact of disability on school-related activity Level of impact Section 504 only requires that the evaluation be conducted in suspected areas of need. F- Show the Consent for Evaluation form again and the various sources of information that should be used. These are the three areas that need to be determined in the district’s evaluation, if not, we will lose cases.

28 Evaluation “Evaluation” does not necessarily mean “test.” In the §504 context, “evaluation” refers to a gathering of data or information from a variety of sources so that the committee can make the required determinations. The evaluation process should also consider various other factors, such as teacher recommendations, physical condition, social and cultural background, behavior and any independent evaluations.

29 Extreme Substantial Moderate Mild Negligible Extreme
Dr. Perry Zirkel, Lehigh University, Bethlehem, PA Extreme Student exhibits little or no success in all subject areas and may need altered curriculum and different standards for instruction and assessment Extreme Substantial Student experiences great difficulty in several subjects and needs extensive support from teachers and parents. Student performs below expectations of typical peers. Substantial Moderate Student has fair amount of difficulty with a number of subject areas however with effective instruction student performs commensurate with typical peers Moderate One of the greatest challenges is determining what is the level of limitation. This scale gives good descriptors to help 504 committees to make that determination. Let’s look at each level: Negligible Mild Moderate Substantial – Meets essential part of criteria for 504 eligibility Extreme – Also Meets essential part of criteria for 504 eligibility but may indicate the need to consider for special education referral Mild Student performance varies from one subject areas to the next, but still is within expectations for a typical student Mild Negligible Student demonstrates signs of minimal difficulty with specific topics in one or tow subject areas or may benefit from slight accommodations Negligible 29

30 Impact of Disability Without effect of mitigating measures such as medication, prosthetics, hearing aids, mobility devices, assistive technology, learned behavioral modifications Does not include eyeglasses or contact lenses For episodic or in remission, consider effects when active Compare to average student F-

31 Short-term Disability & Exclusions
Short term disabilities (such as broken limbs) are usually not considered if less than six months in nature – unless substantial impact Determination must be made on a case-by-case basis, taking into consideration the severity and the duration of the impairment, typically 6 months Exclusions: Illegal drugs, gambling, addiction F- Review

32 What questions can the Section 504 team members ask?
What is the nature and severity of the impairment? What is the duration or expected duration of the impairment? Does the student consistently need substantial changes to complete assignments? Does the student consistently exhibit difficulties with planning and organization? Has the student shown a consistent downward slope in academic progress? Has the student shown a consistent pattern of negative behaviors? Does the student need assistance to participate fully in any portion of the school day, including those where academics are not at issue?

33 How is the presence of the disability determined?
If parents have a diagnosis/medical, district can review it and accept it (unless they want to refute it) - need parental consent Parent/family member interviews Review of school records School observations Teacher interviews Social/emotional checklists Academic assessments Formal tools not required If the district determines, after review of information provide by the parents, that it needs additional information before it can make a specific recommendation, the district shall ask the parents to provide additional medical records and grant the district permissionj to evaluate the student. The district request shall be in writing and specifically identify the procedures and types of tests that it proposes to use to evaluate the student & inform the parent that they have the right to give or withhold their written consent to the evaluation. Show PDE sample “Notice of District-Initiated Evaluation”

34 Disability Determination
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 IDEA are not entitled to a separate Section 504 plan.

35 Timeline for Evaluation
There is no timeline - the law refers to “reasonable” No more than 60 calendar days is a good rule of thumb F-

36 Definition of School Days
Chapter 15 defines school days as the days of the school district’s academic year PLUS the 14 calendar days before the beginning of the academic year and the 14 calendar days following the completion of the academic year Refer to Sample Calendar - McGuffey Calendar

37 Team Meets Must include at least one or both of the parents and the school administrator/representative of the school district If determining eligibility, must be people who: Know the student Know evaluation data Know accommodations/supports options The team ensure that the plan effectively removes the barriers created by a student’s disability. There is no specific Invitation - can develop one similar to Invitation for Chapter 14

38 Evaluation Report Written by the team
The information obtained from all sources must be documented and all significant factors related to the student's learning process must be considered. Carefully considered by the team to determine eligibility

39 Service Agreement Developed
Consider area in which there is impact “Allows student to participate in and benefit from public education programs and activities” Physical, instructional, social/emotional/ behavioral accommodations Write clear Service Agreements. For example, rather than providing an accommodation “as needed,” indicate who will determine that the accommodation is needed. Sometimes will provide actual therapies, such as OT, SLP. Aide support could be provided.

40 Service Agreement No required elements like an IEP Goals not required
Must include a plan for periodic review Should appoint a “Contact Person” to monitor the plan and communicate with family M-

41 Service Agreement Includes specific related aids, services or accommodations Specify the date the services will begin, the date services will be discontinued & when appropriate: the procedures to be followed in the event of a medical emergency

42 Service Agreement Identify student’s disability, major life activity impacted, and educational impact of disability Design a program to suit student needs 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

43 Accommodations While curricular modifications may be available to special education students (i.e., reduced mastery of the grade level curriculum), there is no modification of the curriculum itself for §504 students. 504 is not about reducing expectations for disabled students, but providing the types of accommodations that will compensate for their disabilities so that §504 students have an equal chance to compete in class.

44 Placement / LRE In the §504 context, “placement” simply means the regular education classroom with individually planned accommodations. It does not literally mean taking the child out of the regular classroom and putting him someplace else.

45 More About Service Agreements
May have to pay for extra services - aide support, therapy, etc. May have to make environmental changes Provide access to extracurricular activities May not exclude from enrollment in challenging academic programs.

46 Service Agreement Implemented and Monitored
Site administrator should ensure that all people involved with the student have a copy Communicate with Contact Person on a periodic basis about implementation and progress Failure to implement a 504 plan can have serious legal consequences - people can be held personally liable M- Mention Doe Vs Withers

47 Review No required frequency of review, but it must be “periodic”
The plan should specify how often and by whom it will be reviewed Make sure required reviews occur Annual review is recommended M-

48 Special Steps for Discipline
Same protections for suspension and expulsion as Special Education students (including pattern) 45 days IAEP for weapons, illegal drugs or serious bodily injury Manifestation Determination within 10 days of decision If student is currently using illegal drugs or alcohol, he/she loses his/her right to Manifestation Determination Show the Manifestation Determination document from McGuffey.

49 Re-evaluation The student should be re-evaluated if major changes to the plan are being considered A Student must be reevaluated prior to a significant change in placement which includes exclusion from the educational program of more than 10 school days, transfer to another program or termination or significantly reducing a related service. Parental consent is not required for reevaluations of students on Section 504 Plans. - OCR Decision Guidance

50 Disagreement with Parents
Parents should be given their rights at the beginning (Procedural Safeguards) If parents disagree with what district is proposing regarding assessment, eligibility, or plan, use the Prior Written Notice form Approval not needed for change of placement Parents can appeal to the Office of Civil Rights No “stay put” as in IDEA PDE’s Grievance Procedures Show PDE sample of Procedural Safeguards - review each section 1) Parental Request for Assistance 2) Request Resolution 3) Informal Conference 4) Formal due process hearing

51 §504 Teams Gone Wild “Johnny will participate on the varsity basketball team” “Susie will be in the school choir” The sport or activity doesn’t belong in the plan, only the supports needed for them to participate Students must be “otherwise qualified” as judged by the same criteria as other students

52 Consideration for Special Education
If a 504 student is requiring intensive services, therapies, or even alternate placement, consider eligibility for Special Education. M-

53 Key Points Common regular education interventions such as RtII 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 IDEA. Do not consider mitigating factors when determining whether an impairment is substantially limiting 53

54 Follow-Up Steps Following the meeting:
Copies of documentation from the meeting should be placed in the student’s permanent folder If the student was found eligible, a Section 504 notice should be placed on the student’s permanent folder. All staff serving the student should be notified of the student’s eligibility and their roles in providing accommodations. These staff should receive a copy of the accommodation plan. It is best practice that the plan be reviewed on an annual basis, or more often if needed, and modified as needed. Provide all of the student’s teachers with a copy of the Section 504 Plan at the beginning of the school year and have them sign off on having received it. Include staff in charge of the student’s extracurricular activities in cases where it is determined that it would be appropriate.

55 Section 504 Policies & Procedures
School districts need to revise Section 504 policy, procedures, and forms to conform with the new changes to Section 504. Given the new changes under the 2008 Amendments, it is critical that school districts adopt clear and concise Section 504 policies, procedures, and forms that comply with the new definitions of major life activity and substantial limitation. Show McGuffey’s Policy

56 If in doubt…check it out
Work As A Team If in doubt…check it out

57 Self Assessment Answer the questions again
Review questions and answers

58 Questions

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