1. LET’S EXPLORE SECTION 504!* *(and the ADAAA of 2008 at no extra charge!)

2. PRESENTED BY: Dan Schlafer Federal Programs Director Monroe County Schools

3. WELCOME! THANKS FOR STOPPING BY!

4. THE REHABILITATION ACT OF 1973 Section 504 Referral, Evaluation and Placement- Keys To Compliance!

5. PRETEST! Do your best! Eyes on your own paper! A winner never cheats, a cheater never wins!

6. “Nothing is more unequal than the equal treatment of unequal people!” Author Unknown

7. “Every child—gifted, normal and handicapped has a fundamental right to educational opportunity. Justice delayed is justice denied!” Hubert H. Humphrey - 1972

8. Section 504 Rehabilitation Act Of 1973  Major Federal legislation  Impacts entities that receive federal funding  Civil rights legislation for persons with disabilities  Legislative intent is to prevent discrimination based on disability Who, then, does Section 504 protect?

9. SECTION 504 STATES: “No otherwise qualified individual with a disability…shall, solely by reason of his or her handicap, 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.” THIS IS THE LAW!!!

10. DISCRIMINATION Discrimination is the exclusion from participation in, the denial of benefits of, any program or activity receiving or benefiting from federal financial assistance. Students may not be denied participation in or be denied benefit from services that are afforded nondisabled students!

11. WHAT ARE “EQUAL EDUCATION OPPORTUNITIES?” An appropriate education is a program designed to meet the individual educational needs of those with disabilities as adequately as the needs of non-disabled students are met. Free Appropriate Public Education!!!

12. RELATIONSHIPS TO OTHER LAWS  Title VI of the Civil Rights Act of 1964  Title IX of the 1972 Educational Amendments  Section 504 of the 1973 Rehabilitation Act  The Education for All Handicapped Children’s Act  Americans with Disabilities Act of 1990  42 U.S.C. Chapter 21 Section 1983  Elementary and Secondary Education Act  ADA Amendments Act of 2008

13. COMPARISON OF SCOPE OF IDEA AND SECTION 504 IDEA  Funding statue  Discrete categories of disabilities  Some Section 504 children are not covered under IDEA  Develop IEPs reasonably calculated to convey educational benefit Section 504  Non-funding statute  Broadly defines disabled children  All IDEA children are covered by Section 504  Equal opportunity statute: Meet the needs of disabled students as adequately as the needs of non-disabled are met

14. ADA AMENDMENTS ACT OF 2008  Reverses effect of Supreme Court decisions  Envisions broad umbrella coverage  Lowers bar for showing that an impairment substantially limits  Prohibits consideration of mitigating measures  Requires assessment in active state for impairments in remission or episodic  Expands list of major life activities  Clarifies third prong, “regarded as,” definition of person with a disability  Makes clear that reasonable accommodations are not required for persons regarded as disabled  Makes clear that minor and transitory impairments are not protected disabilities

15. 504 HAZARDS & CATCH 22’s  *** NOT FOLLOWING PROCEDURES! ***  Conversations about 504 plans before eligibility  Increased pressure due to accountability  Demands from parents  The discipline dilemma  Insurance companies  Creating a “rights entitlement”  Failure to identify children  Providing 504 plans in lieu of IEPs  Refusing to implement EEOPs  Testing irregularities

16. ADMINISTRATION & ENFORCEMENT  Section 504 of the Rehabilitation Act of 1973 is administered by the United States Department of Education’s Office for Civil Rights.  State departments of education have no enforcement authority for issues arising under Section 504.

17. GENERAL NOTICE  School districts shall provide notices of discrimination in admission or access to, treatment or employment in its programs and activities and shall  identify the official responsible for ensuring compliance with Section 504.

18. GRIEVANCE PROCEDURES School districts must adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging discrimination. Monroe County Board of Education policies 1.802, 5.500, 5.501, and 5.502 address these issues.

19. PROCEDURAL SAFEGUARDS  Notice regarding identification evaluation or educational placement!  Opportunity to examine relevant records!  Opportunity for participation by parents!  Representation by legal counsel!  A review procedure!  Compliance with IDEA procedure is one means of meeting the 504 requirement!

20. CHILD FIND A recipient that operates a public elementary or secondary education program shall annually:  Undertake to identify and locate every qualified handicapped person residing in the recipient’s jurisdiction who is not receiving a public education!  Take appropriate steps to notify handicapped persons and their parents/guardians of the recipient’s duty under this subpart!

21. CONSIDER A REFERRAL WHEN:  A parent makes a request for an evaluation or for a 504 plan!  Suspension or expulsion is being considered!  Academic performance is lower than expected!  A student is IDEA evaluated and is found not IDEA eligible!  Student exhibits an ongoing medical problem!  Student enrolls with a 504 plan from another district!  An impairment of any kind is suspected!  A student is chronically absent due to medical/health issues!  A student receives medication on school grounds! The events listed are occasions when the existence of a disability should be considered and do not imply that the student is 504 eligible!!

22. NOT IDEA EDUCATION ELIGIBLE? Section 504 eligibility and an accommodation plan are not consolation prizes for students who do not qualify for special education!!! A Section 504 plan is not a “get out of jail free card”!!! There is no accommodation or modification for lack of effort!!!

23. WHO IS “HANDICAPPED” UNDER SECTION 504? “Handicapped person” means:  any person who has a physical or mental impairment which substantially limits one or more major life activities, or  has a record of such an impairment.

24. WHAT IS A MENTAL OR PHSICAL IMPAIRMENT?  “Physical or mental impairment” means (a) 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, or (b) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”

25. WHAT IS A SUBSTANTIAL LIMITATION? “Significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform the same major life activity.”

26. SUBSTANTIAL LIMITATION  Unable to perform a major life activity that the average person in the general population can perform; or  Significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the condition, manner or duration under which the average person in the general population can perform the same major life activity.

27. WHAT ARE MAJOR LIFE ACTIVITIES? “Major life activities” (MLA) is defined as functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

28. MLA ADDITIONS (ADAAA - 2008)  The ADAAA of 2008 added: reading, concentrating, thinking, sleeping, eating, lifting, bending, and communicating and the operation of a major bodily function such as the immune system, normal cell growth, digestive, bowel and bladder functions

29. ARE THERE LIMITATIONS ON CONDITIONS THAT ARE CONSIDERED HANDICAPS? YES! THE FOLLOWING CONDITIONS ARE NOT IMPAIRMENTS:  Cultural, environmental and economic disadvantage  Incarceration  Sexual Orientation  Age

30. CULTURAL, ENVIRONMENTAL AND ECONOMIC FACTORS “The first of the three parts of the definition (of a disabled person) specifies that only physical and mental disabilities are included. Thus, environmental, cultural and other economic disadvantage are not themselves covered.”

31. “NOT THEMSELVES COVERED”  Homelessness  Migrant Status  ESL  Poverty  Cultural Factors  Attendance Problems  Transiency  Divorce  Death of a family member or other family crises  Military deployments

32. MITIGATING FACTORS – OLD STATUTE  Many students for whom a 504 plan is requested are taking prescribed medication(s) to mitigate the effects of the impairment  Students who experience no substantial limitation in any major life activity when using a mitigating measure do not meet the definition of a disability and would not be entitled to FAPE under Section 504

33. MITIGATING FACTORS – NEW STATUTE!! “The corrective effects of mitigating measures cannot be considered in determining whether or not a person is disabled.” ADA Amendments Act of 2008 Effective 1 January 2009

34. ASSEMBLE THE PLACEMENT TEAM! Ensure that the placement decision is made by a group of persons:  including persons knowledgeable about the child,  the meaning of the evaluation data, and  knowledgeable of placement options.

35. ACQUIRE INFORMATION! In interpreting evaluation data and in making placement decisions a recipient shall:  draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background and adaptive behavior,  establish procedures to ensure that information obtained from all such sources is documented and carefully considered.

36. DOCUMENT SUBSTANTIAL LIMITATIONS!  Scholastic record  Report cards  Work samples  State test results  Psychological evals  Social/health history  Information provided by parents Evaluation materials must demonstrate that the student’s academic and/or behavioral performance is less than that of the average, nondisabled student!

37. EVALUATION AND PLACEMENT  Evaluation materials should be validated for their intended use.  Evaluations should be administered in conformance with instructions provided by their producer.  Evaluation materials should be tailored to assess specific areas of educational need.  Tests administered must ensure that test results accurately reflect the student’s aptitude or achievement level, etc., rather than sensory deficits, e.g., impaired sensory, manual or speaking skills.

38. ADAAA 2008 & Evaluations Planning Questions  What evaluation information will you use to assess reading, thinking, sleeping and concentrating?  Where will funds come from to pay for evaluations?  How do you determine whether MLA performance is the result of a mitigating measure?  Is it permissible to use the special education evaluation system for 504 evaluations?  Is the special education evaluation system an option?

39. IDENTIFY THE IMPAIRMENT!  Physical impairment means any physiological disorder or condition, cosmetic or anatomical loss.  Mental impairment means any mental or psychological disorder.

40. DETERMINE ELIGIBILITY!  To be eligible under Section 504, a student must have an identified physical or mental impairment.  The impairment must result in a substantial limitation in learning.  The substantial limitation in learning must be documented with evaluation data and student records indicating the student’s learning performance is less than the average non- handicapped student.  Questions on the EEOP help to assess the degree to which the referred student performs differently than non-handicapped students.

41. DEVELOPING ACCOMMODATIONS!  Neither OCR nor regulations prescribe format for accommodations, e.g. syntax, measurability, etc.  Neither OCR nor regulations say whether accommodations are called “special education or related services”.  What are “reasonable accommodations” under 504?

42. APPROPRIATE ACCOMMODATIONS ARE:  Designed to address specific academic areas in which a substantial limitation is documented!  Designed to meet individual educational needs of handicapped persons as adequately as the needs of non-disabled students are met!

43. SCHOOL & CLASSROOM PERFORMANCE CONSIDERATIONS!  Does the student require more time for homework and in- school assignments?  Are modified assignments necessary? Subject matter, types of assignments, testing, etc?  Are there instructional and social behaviors that need to be addressed?  Does the student have substantial difficulty organizing, planning and completing assignments?  Is the student chronically absent? For what reasons?  Is there a steady increase in disciplinary incidents?  Does the student require specialized health management? If so, what intervention and at what frequency?

44. GUIDELINES FOR ACCOMMODATIONS!  Make sure the proposed accommodation is supported by evaluation data.  Write clear accommodations, leave no room for interpretation.  Avoid open-ended accommodations.  Avoid accommodations that give teachers discretion.  Ensure teachers understand the accommodations.  Clarify terminology, e.g., preferential seating, extended time, etc.

45. SAMPLE ACCOMMODATIONS:  Providing a structured learning environment  Repeating and simplifying instructions  Using visuals to supplement verbal instructions  Using behavioral management strategies  Modifying test delivery  Using tape recorders and other A/V equipment  Selecting modified textbooks, workbooks, etc.  Tailoring homework assignments  Consulting with special education professionals

46. MORE SAMPLE ACCOMMODATIONS:  Reducing class size  Using one-on-one tutors  Using classroom aides  Using classroom note takers  Providing coordination services to oversee implementation of special programs and services  Modifying non-academic time

47. APPROPRIATE ACCOMMODATIONS?  Extra set of books to be kept at home  Student allowed to retrieve books after the bell rings  Familiarize teachers with accommodations  Familiarize teachers with how disability affects behavior, emotional stability, self-esteem and scholastic achievement  Notify parent immediately if an assignment is not turned in  “The parent will…”  “The student will…”  Send messages home in a sealed envelope  Allow late assignments without penalty of a lower grade  Do not provide consequences for violation of the school conduct code  Guidance on using a planner on a daily basis

48. WHAT ELSE?  Document, document, document!  Familiarize teachers with accommodations!  Familiarize teachers with how the disability effects behavior, emotional stability, self-esteem and scholastic achievement!  Provide a copy of individual plans to those who need to know (those with “legitimate educational interest” only)!

49. MORE WHAT ELSE! Ensure that FERPA/HIPAA regulations are followed! Have teachers sign off that they have received the plan!Have teachers sign off that they have received the plan! Insist that teachers note specific accommodations, dates, times, and places in their roll book!Insist that teachers note specific accommodations, dates, times, and places in their roll book! Tape record and keep minutes of parent meetings!Tape record and keep minutes of parent meetings! Follow up parent meetings with written acknowledgement!Follow up parent meetings with written acknowledgement!

50. THE ‘WHAT ELSE’ BIGGIE!  If you can/will modify without a formal, written plan-- DO IT !

51. SECTION 504 REEVALUATION  Establish reevaluation procedures!  Reevaluation must be conducted “on a periodic basis”!  Re-evaluation procedures consistent with the special education protocol meets this requirement!  CONDUCT A REEVALUATION PRIOR TO ANY CHANGE IN PLACEMENT!!

52. DISCIPLINE & MAINFESTATION DETERMINATION  A handicapped student may not be suspended for more than ten days without a manifestation determination hearing, e.g., determination that misconduct is not caused by the disability!  That determination is made by the Section 504 team!  The manifestation determination is a re- evaluation!  You must take into account recent evaluation data that provides an understanding of the student’s current behavior!

53. DISCIPLINE CONSIDERATIONS  Is the student’s accommodation plan appropriate?  Is the current placement appropriate?  Was the student accommodation plan implemented?  Did the disability impair the student’s understanding of the consequences of the behavior?  Did the impairment limit the student’s ability to control the behavior?

54. MORE DISCIPLINE CONSIDERATIONS!  The 504 team may modify the current educational placement when the misconduct is directly caused by the disability; if appropriate, an alternative educational placement. Long term suspension is not an option!  The principal may initiate normal disciplinary procedures when the misconduct is not directly caused by the disability!

55. DISCIPLINE & SUBSTANCE ABUSE  Current drug users are excluded from the definition of handicapped under Section 504 and the ADA!  Current drug and alcohol users are subject to the same disciplinary action to the extent applied to non-handicapped students for similar offenses!

56. DISCIPLINE AND SECTION 504  All IDEA discipline procedures apply to Section 504 students!  When behavior interferes with student’s learning or the learning of others, a BIP is REQUIRED!  Manifestation determination is required for long term suspension or expulsion!  Parents should be invited to participate !  If no nexus between the misconduct and disability, normal disciplinary procedures apply!

57. THE “YOU SHOULD HAVE KNOWN” CAVEAT! Special education discipline restrictions apply to regular education students if you ”had knowledge” before the student’s misconduct that the student was disabled!

58. HOW DID WE KNOW?  Parents had expressed concern in writing that the student is in need of special education services!  The behavior or performance of the student demonstrates the need for special education!  Parents had requested an evaluation!  The teacher has requested an evaluation or has verbally expressed that concern!

59. SECTION 504 & ADAAA 08 CHANGES REVIEW  Eligibility based on mitigating measures (except for eye glasses and contact lenses)-eliminated!  Major life activities – expanded!  Toyota criterion – eliminated!  More comprehensive evaluations!  Collaboration with special education colleagues!

60. MORE SECTION 504 & ADAAA 08 CHANGES REVIEW!  More liberal eligibility criterion!  More students eligible due to the effect of mitigating measures!  Minor and transitory ailments not covered!  Episodic ailments covered only while active!

61. REQUIRED NONACADEMIC SERVICES FOR HANDICAPPED STUDENTS!  Opportunity to participate in nonacademic and extra curricular activities!  Counseling services!  Physical education and athletics!

62. CIVIL ACTION - 42 U.S.C. CHAPTER 21, SECTION 1983 “Every person who…subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress…”

63. Do you have questions?

64. POSTTEST! Do your best! Eyes on your own paper! A winner never cheats, a cheater never wins!

65. TEST ANSWERS! Door prize for the highest score!

66. Thanks for sharing your time with me! I’ve enjoyed it! Feel free to contact me if you think I can help you in any way!

67. CONTACT INFORMATION Dan Schlafer Federal Programs Director dan@monroek12.org – office email 423.442.7104 – office phone 423.519.6025 – cell phone 423.442.1389 – office fax

68. OTHER RESOURCES  www.ed.gov/about/offices/list/ocr/504faq. html www.ed.gov/about/offices/list/ocr/504faq. html  www.wrightslaw.com/info/sec504.index.h tm www.wrightslaw.com/info/sec504.index.h tm  www.dredf.org/504/504-plan-2004.pdf www.dredf.org/504/504-plan-2004.pdf

69. Sources Cited: James F. McKethan, LLC jmckethan@microscribepub.com Tennessee State Department of Education’s Section 504 Manual