1. Implementing Section 504 as Amended by the ADAAA08
GWAEA Section 504 Updates
THE REHABILITATION ACT Americans with Disabilities Act Amendments Act of 2008
Implementing Section 504 as Amended by the ADAAA08
Tracy

2. Microscribe Publishing
Materials for this presentation are being used/reprinted with permission of:
James F. McKethan, LLC
Microscribe Publishing
Tracy
Share info. about Dr. McKethan
Demo- GWAEA website with Section 504 information- where is it?

3. “Meet Your Student” Scenarios
Introduce yourself to those at your table.
You have a received a referral for a 504 (see scenario cards).
Discuss your initial thoughts on the scenario
Complete Box #1 on your recording sheet
Be thinking about your scenario as we work through the information this morning. You will revisit the scenario throughout the morning.
Paul

4. Nothing is more unequal than
Equal Opportunity…
Nothing is more unequal than
the equal treatment of
unequal people…
Lau V Nichols
© Copyright 2009 James F. McKethan, LLC

5. Section 504 Protection Against Discrimination
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 assistance. 29 USC § 794
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. 34 CFR §104.4
© Copyright 2009 James F. McKethan, LLC

6. Equal Education Opportunities
34 CFR §104.33(b)(1)(i)
An appropriate education is a program designed to meet the individual educational needs of individuals with disabilities as adequately as the needs of nondisabled students are met.
Free Appropriate Public Education
© Copyright 2009 James F. McKethan, LLC

7. The School District’s Obligations
Appropriate
Regular education, or
Special education and related aids and services
How far do school officials need to go to comply with this requirement?
34 CFR §104.33(b)(1)
© Copyright 2009 James F. McKethan, LLC

8. ADA Amendments Act of 2008 Effective January 1, 2009
Reverses effect of Supreme Court decisions
Envisions a broad umbrella of coverage
Lowers bar for showing that an impairment substantially limits
Makes clear that eligibility for impairments that are episodic or are in remission is based on a substantial limitation when active.
Expands list of major life activities
Prohibits consideration of mitigating measures
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
Regulations still in draft form – have not caught up with the law.
© Copyright 2009 James F. McKethan, LLC

9. IDEA and Section 504 Comparison
Funding statute
Discrete categories of disabilities
Procedural Due Process
“Pure” Section 504 children are not covered under IDEA
IEPs reasonably calculated to convey educational benefit
Consent for Placement
Annual review
Non-funding statute
Broadly defines disabled children
Procedural Due Process
All IDEA children are covered by Section 504
Meet the needs of disabled students as adequately as the needs of non-disabled are met
No consent required
No annual review required
© Copyright 2009 James F. McKethan, LLC

10. IDEA and Section 504 Comparison
Child Find
Consent for Evaluation
Re-evaluations
LRE
IEP Team
Special Education
Culture, Economic & Environment
Discipline - Manifestation
Child Find
Consent for Evaluation
Re-evaluations
LRE
504 Team
Regular Education
Culture, Economic & Environment
Discipline - Manifestation
© Copyright 2009 James F. McKethan, LLC

11. Administration & Enforcement
Section 504 of the Rehabilitation Act of 1973 is administrated by the US Department of Education’s Office of Civil Rights.
State departments of education have no enforcement authority for issues arising under Section 504.
Local districts must identify the person responsible for ensuring compliance.
Section 504 provides procedural safeguards.
Candi
© Copyright 2009 James F. McKethan, LLC

12. General Notice
34 CFR §104.8
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
Parent/student handbook?
Document A
© Copyright 2009 James F. McKethan, LLC

13. When to Consider a Referral
Adapted from: Student Access, A Resource Guide for Educators, CASE
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 evaluated and is not IDEA eligible.
Student exhibits an on-going medical problem.
Students enroll 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.
A student formerly found not eligible due to mitigating measures.
The events listed are occasions when the existence
of a disability should be considered and do not imply that the student is 504 eligible.
Documents B & C
Consult flow chart
© Copyright 2009 James F. McKethan, LLC

14. Procedural Safeguards
34 CFR §104.36
Notice regarding identification evaluation or educational placement
Opportunity to examine relevant records
Impartial hearing
opportunity for participation by parents
representation by legal counsel
a review procedure
Compliance with IDEA procedures is one means of meeting the 504 requirement
Document(s) D
Parents can go to DOE, OCR, or a lawyer at any time
© Copyright 2009 James F. McKethan, LLC

15. Assemble The Placement Team
34 CFR §104.35(c)(3)
Ensure that the placement decision is made by a group of persons knowledgeable about:
the child
the meaning of the evaluation data
service options
Give examples of people for each bullet
© Copyright 2009 James F. McKethan, LLC

16. ADAAA 2008 & Evaluations
What evaluation information will you use to assess reading, thinking, sleeping, and concentrating, etc.?
What funding is available to pay for evaluations?
How do you determine whether MLA/MBF limitation is the result of mitigating measures?
Is it permissible to use the special education evaluation system for Section 504 evaluations?
Table talk
© Copyright 2009 James F. McKethan, LLC

17. School & Classroom Performance Informal Evaluation Data
In interpreting evaluation data and in making 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.
Document E
© Copyright 2009 James F. McKethan, LLC

18. Evaluation Evaluation must be Examples Scholastic record
34 CFR § (b)
Evaluation must be
Validated for their intended use.
Administered in conformance with instructions provided by their producer.
Tailored to assess specific areas of educational need.
Accurately reflect the student’s aptitude or achievement level, etc., rather than sensory deficits, e.g., impaired sensory, manual, or speaking skills…
Examples
Scholastic record
Report cards
Work samples
State assessment results
Psychological evaluation
Norm referenced educational assessments
Curriculum-based assessment
Structured academic & behavioral interventions
Social and health history
Information provided by parent
© Copyright 2009 James F. McKethan, LLC

19. Before Entering the Eligibility Process . . .
If concerns are purely academic or behavioral, the student is provided interventions through IDM and an evaluation based on information from a variety of sources before proceeding
If a student has significant physical or mental health concerns, consider proceeding without accessing the IDM process
Provide examples

20. A Referral Process
Implement w/ pure behavior and academic concerns – not medical or MH difficulties
© Copyright 2009 James F. McKethan, LLC

21. Mental and Physical Impairments
34 CFR §104.3 (j)(2)(i)
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
any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
© Copyright 2009 James F. McKethan, LLC

22. Mental and Physical Impairments
34 CFR §104.3 (j)(2)(i)
What about the following?
Non Verbal Learning Disorder
Central Auditory Processing Disorder
Pregnancy
Obesity
Slow Learners
Alcoholism
Drug Addiction
Elbow partners
© Copyright 2009 James F. McKethan, LLC

23. I’m Tyler

24. When is a function or activity a major life activity?
Major Life Activities
34 CFR §104.3(j)(2)(II) amended by the ADAAA of 2008
“Major life activities” means functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working
The ADAAA08 added: reading, concentrating, thinking, sleeping, eating, lifting, bending, communicating and the operation of a major bodily function such as the immune system, normal cell growth, digestive, bowel, bladder functions
When is a function or activity a major life activity?
Tracy
Taking a test?
© Copyright 2009 James F. McKethan, LLC

25. Cultural, Environmental and Economic Factors
34 CFR §104 Appendix A Analysis of Final Regulation
“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 economic disadvantage are not themselves covered.”
Homeless
Migrant
ESL
Poverty
Cultural factors
Attendance Problems
Transiency
Divorce
Death of a family member and other family crises
Military deployments
Not alone – but often in combination with other qualifying factors
© Copyright 2009 James F. McKethan, LLC

26. Mitigating Measures The corrective effects of mitigating measures
ADA Amendments Act of 2008
Many students who come before the 504 team are taking prescribed medication to mitigate the effects of the impairment.
Students who experience no substantial limitation in any major life activity when using a mitigating measure does not meet the definition of a person with a disability and would not be entitled to FAPE under Section 504.
The corrective effects of mitigating measures
cannot be considered in determining whether
or not a person is disabled.
© Copyright 2009 James F. McKethan, LLC

27. Scenario Practice
What existing evaluation data would you look at? (Complete Box #2)
What evaluation data do you need to obtain?
What is the impairment?
Identify the Major Life Activity (MLA).
What other factors would you consider?
Tracy
Do this and then work in a break.

28. The 504 Eligibility Standard
…When a school improperly identifies a student…It not only mislabels the student, it opens the door to a host of procedural obligations and potential legal liabilities
Jim Walsh, “Compliance Keys,”
Section 504 Compliance Advisor, April 2007
© Copyright 2009 James F. McKethan, LLC

29. Perry Zirkel, Lehigh University
Not IDEA Eligible?
Section 504 eligibility is not a consolation prize for students who do not qualify for special education
Perry Zirkel, Lehigh University
© Copyright 2009 James F. McKethan, LLC

30. Determine Section 504 Eligibility
CFR (j)(2)
Evaluation Information
Mental or Physical Impairment
Document F
MLA performance restricted when compared to performance of a nondisabled student
See James’ flowchart on p. 39
Eligibility Decision
© Copyright 2009 James F. McKethan, LLC

32. Focusing solely on instruction
Range of Learners
Core Instruction
Successful in School
= Motivationally ready & able to learn 1
Barriers to Learning
2 =
Encounter some barriers and may be lacking prerequisite knowledge & skills
Learning Supports
Focusing solely on instruction
will not
help students
in groups 2 & 3 succeed
3 =
Encounter complex and intensive barriers to learning
Group 1: The % of students who come ready and able to learn varies from
0-75%. The number in this group is decreasing every year.
Group 2: Lacking prerequisite skills & knowledge
Different learning styles & rates
Minor vulnerabilities
Group 3: Highly deficient in current abilities
May have disabilities
May have major health problems

33. Scenario
Based on the evaluation data you have, is the student eligible for a 504? (Complete Box #3)
To what extent is the student limited in comparison to his/her non-disabled peers?
What would you present as justification for the eligibility?
Paul

34. Considerations for Accommodations/Services
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?
Paul
See resources for possible accommodations list
Possible Accommodations List
© Copyright 2009 James F. McKethan, LLC

35. Criterion for Appropriate Accommodations/Services
34 CFR (b)(1)
Designed to address specific major life activities/major bodily functions in which a substantial limitation is documented.
Designed to meet individual educational needs of handicapped persons as adequately as the needs of nondisabled students.
Keep in mind . . .
© Copyright 2009 James F. McKethan, LLC

36. Guidelines for Accommodations
34 CFR (b)(1)
Ensure the service, accommodation or adjustment is supported by evaluation data.
Write clear and specific accommodations:
Leaving no room for interpretation,
avoid open-ended accommodations, and
avoid giving teachers discretion to implement.
Accommodations for state assessment must be used regularly in the instructional program
Ensure teachers understand the accommodations:
Clarify terminology, e.g., preferential seating, extended time, etc.,
provide training, if necessary, and
develop a teacher accountability protocol.
Documents G & H
Source of most OCR complaints
Sample Plan
© Copyright 2009 James F. McKethan, LLC

37. Scenario
What are 2-3 appropriate accommodations for the student? (Complete Box #4)
What are the possible unintended consequences of each accommodation?
Paul

38. Section 504 Re-Evaluation
34 CFR § (d)
The District must establish re-evaluation procedures.
The re-evaluation must be conducted on a periodic basis.
A re-evaluation procedure consistent with the special education re-evaluation requirement is one way of meeting Section 504 requirements.
Conduct a re-evaluation prior to any significant change in situation.
Candi
© Copyright 2009 James F. McKethan, LLC

39. Best Practice
Review Annually and if the student’s situation changes (condition gets better or worse, transition, etc.)
Re-Evaluate every three years
Consider dismissal if student is no longer substantially limited or if services move to an IEP.

40. Discipline
A handicapped student may not be suspended for more than ten days w/o a manifestation hearing, e.g., determination that misconduct is not caused by the disability
The determination is made by the Section 504 team
The manifestation determination is a reevaluation
Must take into account recent evaluation data that provides an understanding of the student’s current behavior
OCR: Long-term Suspension or Expulsion, 1988
© Copyright 2009 James F. McKethan, LLC

41. Long – Term Suspensions
The principal may initiate disciplinary procedures for 504 students when the misconduct is not directly caused by the disability.
The 504 team may modify the current educational placement when the misconduct is directly caused by the disability. If appropriate, an alternative educational placement may be considered.
© Copyright 2009 James F. McKethan, LLC

42. Discipline and Substance Abuse
OCR: Staff Memo, 1991, 17 IDELR 609
Current drug users are excluded from the definition of handicapped under Section 504 & the ADA.
Current drug and alcohol users are subject to the same disciplinary action to the extent applied to non-handicapped students for similar code of conduct infractions.
© Copyright 2009 James F. McKethan, LLC

43. 504 Hazards & Catch 22’s Murky procedures High-stakes enterprise
Over-identification
Failure to identify children
Providing 504 plans in lieu of IEP’s
Not following procedures
Refusing to implement Accommodation Plans
Conversations about 504 plans before eligibility
Increase pressure due to accountability
Demands from parents
The discipline dilemma
Physician/Therapists recommendation
Creating a rights entitlement
Deprivation of services/rights
© Copyright 2009 James F. McKethan, LLC

44. There is disagreement among the team members.
34 CFR §104.36
There is disagreement among the team members.
Now what?
With an elbow partner, discuss the current process in your school
© Copyright 2009 James F. McKethan, LLC

45. Minimize Conflict with Parents
Act promptly on parental requests for evaluations.
Develop a parent-friendly brochure outlining the 504 eligibility standard and the step-by-step referral process.
Distribute brochures to local medical and mental health providers.
Conduct Section 504 information forums for parents, community service providers.
Organize 504 team meetings with an agenda.
Be knowledgeable of the student’s impairment.
Implement 504 accommodations.
Examples in resources section
© Copyright 2009 James F. McKethan, LLC

46. School districts shall:
Grievance Procedures
34 CFR §104.7
School districts shall:
Designate at least one person to coordinate its compliance
Adopt grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints alleging discrimination
(Documents I & J)
© Copyright 2009 James F. McKethan, LLC

47. Scenario Sharing
Finalize the Quality Quadrant with notes regarding your scenario
Choose a Reporter
Share with the group the following:
Summary of student
Evaluation data considered
Team decision including MLA and impairment
3 accommodations
Candi

48. Questions, Comments, Witty Remarks
Tracy
Assessment- share the Self-Assessment with answers.