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Richard J. Landau, Ph.D., J.D. RJ Landau Partners, PLLC.

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1 Richard J. Landau, Ph.D., J.D. RJ Landau Partners, PLLC

2 Section 504 of the Rehabilitation Act of 1973 (a/k/a “Section 504” or the “Rehabilitation Act”) is a federal law which prohibits discrimination against persons with disabilities. The law provides: No otherwise qualified individual with a disability... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance USC § 794

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4  Court decisions  Agency rulings and policy letters  Resolution Agreements with the District

5 OCR is an agency within the United States Department of Education.  OCR enforces several Federal civil rights laws that prohibit discrimination in programs or activities that receive Federal funds from the Department of Education. These laws prohibit discrimination on the basis of race, color, and national origin, sex, disability, and on the basis of age.

6  AAPS’s compliance with Section 504 is monitored by OCR.  Any individual who believes that AAPS has violated Section 504 can file a grievance with the District pursuant to its Grievance Procedure. We will discuss this later in the presentation.  In addition, that individual can file a complaint with OCR, which performs its own investigation.

7  The District has been required to respond to OCR investigations, most recently in November-December  These investigations are serious matters. Where there is non-compliance, OCR can issue a Letter of Finding.  Failure to resolve the Letter of Finding of non- compliance can result in the issuance of a Letter of Impending Enforcement Action.

8  Where a Letter of Impending Enforcement Action remains unresolved OCR has the power to issue enforcement proceedings which can result in a decision whereby OCR elects to “suspend, terminate, or refuse to grant or continue Federal financial assistance to the recipient, or will refer the case to the Department of Justice. OCR may also move immediately to defer any new or additional Federal financial assistance to the institution.”

9  A complaint filed by a parent recently resulted in a voluntary Resolution Agreement whereby AAPS avoided these serious penalties.  Your participation in this presentation was one of the provisions of our Resolution Agreement.

10  For a student to have a disability which may be protected under this law, he or she must: (1) have a mental or physical impairment, (2) which substantially limits, (3) one or more major life activities. For a student to be considered an "eligible student" under Section 504, all three criteria must be fulfilled.  Under Section 504, schools that receive federal funds may not discriminate against eligible students with disabilities. Section 504 also protects students who have a record of a disability, and students who are regarded as having a disability. Discrimination against students in either category is prohibited under Section 504.  Section 504 requires the District to provide a free appropriate public education ("FAPE") to each eligible student who has a physical or mental impairment which substantially limits a major life activity.

11 "Free Appropriate Public Education" ("FAPE“) A "free appropriate public education" is the provision of regular or special education and related aids and services that are designed to meet the individual educational needs of students with a disability as adequately as the needs of non-disabled students are met. "Individual with a Disability" An "individual with a disability" is a person who: 1.Has a physical or mental impairment which substantially limits one or more of such person's major life activities; 2.Has a record of such an impairment; or 3.Is regarded as having such an impairment.

12 “Physical or Mental Impairment " 1. Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or 2. Any mental or psychological disorder, such as a cognitive impairment, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

13 “Physical or Mental Impairment "  The Section 504 regulation does not provide an exhaustive list of specific diseases or conditions that may constitute a physical or mental impairment because of the difficulty of developing a comprehensive list of possible diseases and conditions.

14 "Substantially Limits“  This determination is made on a case-by-case basis. Neither Section 504 nor its implementing regulations define the term "substantially limits.“ An impairment need not prevent or severely or significantly restrict a major life activity to be considered substantially limiting.  Except for ordinary eye glasses or contact lenses, the ameliorative effects of mitigating measures may not be considered when assessing whether a student has an impairment that substantially limits a major life activity. Once a school district determines that a student has a disability, however, that student's use of mitigating measures could still be relevant in determining his or her need for special education or related services.

15 "Substantially Limits“  Impairments that may not have previously been considered to be disabilities because of the ameliorative effects of mitigating measures might now meet the Section 504 and ADA definition of disability. For example, a student who has an allergy and requires allergy shots to manage that condition would be covered under Section 504 and Title II if, without the shots, the allergy would substantially limit a major life activity.

16 "Substantially Limits“  Food Allergies: The effect of the epipen or other mitigating measures cannot be considered when the school district assesses whether the student has a disability. Therefore, when determining whether a student with a peanut allergy has a disability, the school district must evaluate whether the peanut allergy would be substantially limiting without considering amelioration by medication or other measures. For many children with peanut allergies, the allergy is likely to substantially limit the major life activities of breathing and respiratory function, and therefore, the child would be considered to have a disability. If, because of the peanut allergy the student has a disability and needs or is believed to need special education or related services, she has a right to an evaluation, placement, and procedural safeguards.

17 "Substantially Limits“  A temporary impairment does not constitute a disability for purposes of Section 504 unless it is of such severity that it results in a substantial limitation of one or more major life activities for an extended period of time. This determination is to be made on a on a case-by-case basis.  If a student has an impairment that is episodic or in remission, the District must consider whether the impairment, when active, would substantially limit a major life activity. If it would, then the student meets the definition of a student with a disability.

18 "Substantially Limits“  For example, a student with bipolar disorder would be covered if, during manic or depressive episodes, the student is substantially limited in a major life activity (e.g., thinking, concentrating, neurological function, or brain function).

19 "MAJOR LIFE ACTIVITIES “ A "MAJOR LIFE ACTIVITY" INCLUDES, BUT IS NOT LIMITED TO FUNCTIONS SUCH AS:  Caring for oneself  Performing manual tasks  Walking  Seeing  Hearing  Speaking  Breathing  Learning  Working  Eating  Sleeping  Standing  Lifting  Bending  Reading  Concentrating  Thinking  Communicating  Operation of major bodily functions (including but not limited to functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions) This list is not exhaustive. An activity or function not found on the list may nonetheless be a major life activity.

20 "Record of Impairment" and "Regarded as Having an Impairment “  For the "regarded as" prong of the disability definition, if an individual can establish that he or she has been subjected to an act prohibited by Title II or Section 504 (e.g., refused admission or expelled or denied equal access to educational programs) because of an actual or perceived physical or mental impairment, then he or she is entitled to protection under these laws. The statutory protections apply whether or not the individual actually has the impairment, and also whether or not the impairment is perceived to be a substantial limitation on a major life activity.

21 "Record of Impairment" and "Regarded as Having an Impairment “  For example, consider a nondisabled student whose mother is a well-known AIDS activist in the community. After the student transfers schools at mid- year, he is harassed by other students based on their mistaken assumption that he has AIDS. This student, who is regarded as having an impairment, would be protected by the ADA and Section 504.  An individual will not be "regarded as" a person with a disability if the impairment is both transitory (meaning that it has an actual or expected duration of six months or less) and minor.

22 "Record of Impairment" and "Regarded as Having an Impairment “  An entity need not provide a reasonable modification of policies, practices, or procedures to individuals who meet the definition of disability solely because they are "regarded as" having a physical or mental impairment. As described above, however, such individuals would be entitled to protection from discrimination, including but not limited to protection from retaliation and harassment on the basis of disability.

23 "Current Users of Illegal Drugs“  A student who is currently engaging in the illegal use of drugs is not eligible for services or protection under Section 504 when the District takes disciplinary action on the basis of such drug use even if the student is otherwise a student with a disability.  A student who is a former drug user or who is participating in a drug rehabilitation program, however, may be eligible for Section 504 services and protection if the student otherwise meets the definition of an "individual with a disability" as described above.

24 Section 504 Requires District to provide a FAPE to eligible students. FAPE is defined in the Section 504 regulation as the provision of regular or special education and related services that are designed to meet the individual educational needs of persons with disabilities as adequately as the needs of nondisabled persons are met, and that are provided without cost (except for fees imposed on nondisabled students and their parents)

25 Section 504 A school district's obligation to provide FAPE extends to students with disabilities who do not need special education but require a related service. For example, if a student with a disability is unable to self-administer a needed medication, a school district may be required to administer the medication if that service is necessary to meet the student's educational needs as adequately as the needs of nondisabled students are met. In order to satisfy the FAPE requirements described in the Section 504 regulation, the educational institution must comply with several evaluation and placement requirements, afford procedural safeguards, and inform students' parents or guardians of those safeguards.

26 Parental Misperceptions:  Parents have bias against Section 504 where their child may qualify for both. Internet resources compound this bias.  There is a perception that students who qualify under IDEA are more likely to have their needs addressed by District staff.  There are concerns that once a Section 504 plan is developed, teachers are less likely to be informed about the accommodations listed in the plan than they are the requirements of an IEP.  It is important to make every effort to disabuse parents of these misperceptions.

27  Section 504 has a wider definition of FAPE. IDEA covers only special education and related services while Section 504 covers both regular or special education and related services.  Section 504 is a Civil Rights antidiscrimination law which requires disabled students to have their needs met as appropriately as non- disabled peers by comparing both groups.  IDEA is a Special Education law which requires you to focus on the unique needs of the child and design an Individualized Education Program (IEP) around these individual needs. Under Michigan law the IEP must allow the student to attain his/her “maximum potential”—although what this actually means is a matter of some debate.  An IEP, which is provided to students covered by IDEA, must be tailored to the child's unique needs and must result in educational benefit. However, a Section 504 Plan provides accommodations based on the child's disability and resulting weaknesses, but does not require academic improvement.

28  IDEA requires the implementation of an IEP with specific requirements. Section 504 only requires a written plan.  Section 504 does not have a requirement for who must attend and participate in a 504 meeting. IDEA has a requirement of who must attend and participate in an IEP meeting.  IDEA has VERY specific procedural safeguards that include expansive rights of the parents including the right to ask for an Independent Educational Evaluation (IEE), be provided Prior Written Notice (PWN), and if you disagree with the Schools offer your child’s current placement and services will be subject to a Stay Put.  Section 504 does not include the concept of IEEs, PWN or Stay Put. Section 504 requires notice to the parent or guardian with respect to identification, evaluation, and/or placement but written notice is not required. Although written notice is not required many School Districts consider it a best practice to provide written notice anyway.

29  IDEA has a requirement for 10 day notice before placement changes can be made. There is no such requirement in Section 504.  Both IDEA and Section 504 give the Parents the right for an impartial hearing but on very different terms. Under Section 504 the District hires and sets up the impartial hearing. Under IDEA the impartial hearing is set up through the State of Michigan Administrative Hearing System.  Section 504 is enforced by the US DOE Office of Civil Rights.  IDEA is enforced by the WISD, Michigan DOE and US DOE Office of Special Education.

30 Section 504 Section 504 is a civil rights law. The purpose of Section 504 is to protect individuals with disabilities in programs receiving federal financial assistance from discrimination for reasons related to their disabilities. Americans with Disabilities Act (ADA) ADA broadened the agencies and businesses that must comply with the non-discrimination and accessibility provisions of the law. The language of ADA tracks Section 504 and explains that the remedies, procedures and rights under the ADA are the same as under Section 504.

31  Pre-referral assistance is an important first step in serving students experiencing difficulties in school. Teachers may vary instructional and behavioral methodologies and expectations, and, by so doing meet students' educational and behavioral needs; and thereby strengthen the general education program and reduce unnecessary Section 504 and IDEA formal referrals.  Pre-referral assistance, including strategies such as response-to-intervention ("RTI"), is not intended to impede or be a substitute for necessary referrals for consideration of eligibility under the Individuals with Disabilities Education Act ("IDEA") or Section 504.

32 A. Referral The referral need not be parent initiated.  A referral may be required in situations in which school personnel may reasonably conclude that a child needs or is believed to need special education or related aids and services, including:  when a teacher, based on observation of or work with the student, expresses the view that an evaluation is needed; or  when the parent of a child has requested an evaluation.

33 A. Referral OCR Example:  Consider a student who has Attention- Deficit/Hyperactivity Disorder (ADHD) but is not receiving special education or related services, and is achieving good grades in academically rigorous classes. School districts should not assume that this student's academic success necessarily means that the student is not substantially limited in a major life activity and therefore is not a person with a disability.

34 A. Referral OCR Example:  Grades are just one consideration and do not provide information on how much effort or how many outside resources are required for the student to achieve those grades. The Committee on Education and Labor in the House of Representatives cautioned that "an individual with an impairment that substantially limits a major life activity should not be penalized when seeking protection under the ADA simply because he or she managed their own adaptive strategies or received informal or undocumented accommodations that have the effect of lessening the deleterious impacts of their disability.”

35 A. Referral Upon concluding that a referral is necessary:  The referral should be reduced to writing.  The parent should be provided written notice of the referral, and be asked to provide written consent to a Section 504 evaluation.  The parent should be provided with a copy of "Section 504 Notice of Procedural Safeguards" with notice of the referral.  The parent should sign the procedural safeguards and the signed copy should be maintained in the student’s file.

36 B. Evaluation The District is required to conduct an evaluation before providing Section 504 services. The nature and extent of the information needed to make a Section 504 eligibility decision is determined on case-by-case basis by a group of persons knowledgeable about the student, the meaning of evaluation data, and the placement options, i.e., the Section 504 team.

37 B. Evaluation The District may, but is not required to, use the same evaluation process used to evaluate students under the IDEA. The evaluation must draw upon information from a variety of sources and may include:  School records review  Observations of the student  Standardized tests or other assessments by school staff  Parent/Student/Teacher interviews  Behavior rating scales or other checklists  Pertinent medical information  Information provided by the parent  Other relevant information

38 B. Evaluation  Where formal testing is determined to be necessary, the evaluation procedures must ensure that: 1.Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer. 2.Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient. 3.Tests are selected and administered so as best to ensure that when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student's aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student's impaired sensory, manual, or speaking skills (except when those skills are the facets that the tests purport to measure).

39 B. Evaluation  A medical diagnosis of a physical or mental impairment does not, in and of itself, determine Section 504 eligibility.  Additionally, the District may request, but cannot require a parent to provide a medical statement or authorize the release of the student's medical information as part of the evaluation process. If the District determines, based on the facts and circumstances of the individual case, that a medical assessment is necessary for an appropriate evaluation, the District must ensure that the child receives this assessment at no cost to the parents.

40 B. Evaluation  If a parent refuses to consent to a medical assessment and alternate assessment methods are not available, the 504 Team must proceed to make an eligibility determination based on the information it has on hand.  Absent extenuating circumstances, the District’s evaluation and the development of a Section 504 Plan, if necessary, should be completed no later than 30 school days following the District’s receipt of the parent’s consent to evaluate. If an extension of time is required, the parent must be notified in writing of the extension, the reason for the extension, and the expected date of completion of the process.

41 C. Eligibility Determination  The eligibility determination must be made by the Section 504 team, a group of persons knowledgeable about the student, the meaning of evaluation data and placement options. It must be documented in writing.  The parent of the student should be given a meaningful opportunity to provide input into identification, evaluation, and placement decisions for his/her child. Therefore, the parent should typically be included in this process.

42 C. Eligibility Determination  Per OCR: Congress has directed that the definition of disability shall be construed broadly and that the determination of whether an individual has a disability should not demand extensive analysis.

43 C. Eligibility Determination  In most cases, application of these rules should quickly shift the inquiry away from the question whether a student has a disability (and thus is protected by the ADA and Section 504), and toward the school district's actions and obligations to ensure equal educational opportunities. While there are no per se disabilities under Section 504 and Title II, the nature of many impairments is such that, in virtually every case, a determination in favor of disability will be made. Thus, for example, a school district should not need or require extensive documentation or analysis to determine that a child with diabetes, epilepsy, bipolar disorder, or autism has a disability under Section 504 and Title II.

44 D. Section 504 Plan The Plan should specify in writing how services will be provided and by whom.  The Section 504 Plan shall be signed by the Section 504 Coordinator/Designee, indicating the District's intent to implement the plan.  A copy of the Plan, along with the Section 504 Notice of Procedural Safeguards, must be provided to the parent.  The parent should be required to sign a copy of the Procedural Safeguards and a copy of the signed document retained along with the Section 504 Plan.

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46 D. Section 504 Plan The Plan should specify in writing how services will be provided and by whom.  If a Section 504 Plan is developed for a student, all school personnel with implementation responsibilities should be informed of the existence and particulars of the Plan. Failure to implement the Section 504 Plan can result in non-compliance with Section 504.  Written confirmation of receipt should be obtained by all staff responsible for implementing the Plan, including all teachers.  As teachers and classes change, new written confirmation of receipt of the Section 504 Plan should be obtained and maintained in the student’s file.

47 D. Section 504 Plan  Counsel recommends that all Section 504 Plans, evaluation materials, confirmation of distribution to teachers, and signed Procedural Safeguard Notices that have been developed for students in a building be maintained in a centralized location so that they can be easily located and produced in the event of an investigation and for compliance monitoring.

48 E. Review of Section 504 Plan  A designated person must contact the parent (in person or by phone) at least annually to discuss whether the Section 504 Plan continues to be appropriate or whether any changes are necessary. F. Reevaluation  A reevaluation should be completed at least once every 3 years to redetermine eligibility under Section 504 and before any significant change in the student's placement.

49 F. Contents of the Section 504 Plan  The Section 504 team should be mindful of the contents of the Plan and the language used.  Where an accommodation is stated as mandatory, it must be provided in every instance.

50 F. Contents of the Section 504 Plan  For example:

51  Similar to suspension or expulsion of a student with a disability under the IDEA, it is necessary to conduct a manifestation determination for a Section 504 student when:  The suspension or expulsion will be for more than 10 consecutive school days; or  The student has been subjected to a series of suspensions that total more than 10 school days in a school year and a pattern of removal exists. Whether a series of suspensions creates a pattern of exclusion is determined on a case-by- case basis taking into account the following factors: the length of each suspension, the proximity of the suspensions to one another, the similarity of the behavior that resulted in the removals and the total amount of time the student is excluded from school.

52  Series of removals that total more the 10 school days in a year;  Student’s behavior is substantially similar to behavior in previous incidents; and  Such other factors as:  Length of each removal  Total amount of time removed  Proximity of removals to each other

53  If either of the situations above applies, then the District is required to conduct a manifestation determination before any significant change in student’s placement may occur.  The manifestation determination should be conducted within 10 school days of the decision to change the student’s placement. The parent must be invited to participate in the meeting and provided a copy of the Section 504 Notice of Procedural Safeguards.  The purpose of the manifestation determination is to review whether the student’s misconduct was caused by, or had a direct and substantial relationship to the student’s disability; or whether the conduct was a direct result of the District’s failure to implement the student’s Section 504 plan.

54  This determination should be made by a group of persons knowledgeable about the student, the meaning of evaluation data, placement options, the student’s Section 504 Plan, and the disciplinary incident.  In making its determination, the Section 504 Team must review all relevant information in the student’s file, the student’s Section 504 plan, any teacher observations of the student, and relevant information provided by the parent.

55  If the Section 504 Team concludes that the student’s conduct is a manifestation of the student’s disability, the student must remain in (or be returned to) his/her current educational placement unless the parent and the District agree to change the student's placement.  If the 504 Team concludes that the student’s conduct is not a manifestation of the student’s disability, the District may apply the relevant disciplinary procedures applicable to all students.

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57  Unlike the IDEA, there is no requirement to provide a student whose conduct is not a manifestation of the student’s disability educational services during a disciplinary change in placement unless services are provided to similarly-situated non-disabled students.  Please note that Section 504 allows a student to be disciplined, without going through the manifestation determination review process, when the infraction results from the student's current illegal use of drugs or alcohol in violation of the Code of Student Conduct.

58  In the case of a Section 504 student who carries or possesses a weapon to or at school, on school premises, or to or at a school function, the District may place the student in an interim alternative educational setting for up to 45 school days if a student without a disability would be similarly disciplined.  The Section 504 team must meet to develop the interim alternate educational setting after evaluating the student.

59  The interim alternate educational setting must be educationally appropriate and the services provided must enable the student to continue to progress in the general curriculum.  The interim alternate educational setting must also address the behavior prompting the disciplinary action.

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65 Per District Procedural Safeguards:

66  OCR requires that AAPS maintain a Grievance Procedure in the event that a parent/guardian/student believes that the District has violated Section 504.  District compliance with our Grievance Procedure has been a point of concern for OCR so compliance is of particular importance to avoid future findings of non-compliance and potential sanctions.

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70  A verbal complaint to the Building Principal.  This should be interpreted as including Assistant Principals.  If the Principal or Assistant Principal is the subject of the complaint, the matter should be referred to the Section 504 coordinator.  While the findings need not be in writing, the date and time that the findings were communicated to the complaining party and the party that is the subject of the complaint, along with the substance of the findings should be documented for audit purposes.

71  A written complaint will contain:  Grievant’s name and contact information.  Facts surrounding the incident.  Date of the incident.  A description of the discrimination alleged.  The relief sought.

72  No particular form is required.  And we need to be liberal in what we deem “written complaint” to be, provided we can interpret the writing as containing all or most of the required information.  So complaints can be notes, s, texts, any form of written expression could suffice.

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75 David A. Comsa Deputy Superintendent, Human Resources and General Counsel (734) comsad Richard J. Landau RJ Landau Partners PLLC 5340 Plymouth Rd., Suite 200 Ann Arbor, Michigan (734) (office) (734) (cell)


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