How School Districts Can Effectively Implement Section 504 Presented by Jim Rich 10/11 Revision

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The Three Laws Americans with Disabilities Act (ADA) Section 504 of the Rehabilitation Act of 1973 (Section 504) Individuals with Disabilities Education Act (IDEA) A Federal civil rights statute. A Federal civil rights statute. A Federal funding statute. Passed in 1990 to provide a comprehensive approach to eliminate discrimination on the basis of a disability throughout the nation. Passed in 1973 to eliminate discrimination on the basis of disability in any program or activity receiving Federal financial assistance. Passed in 1975 to provide Federal financial assistance to state and local education agencies to assist them to educate children with disabilities. Applies to all public and certain private entities whether or not they receive Federal financial assistance. Applies to recipients of Federal financial assistance. Applies to state and local education agencies which receive IDEA funds. Covers employment practices, public services, public accommodations and commercial facilities, and telecommunications services. Covers employment practices, program accessibility, preschool, elementary, and secondary education programs, post- secondary education programs, and health, welfare and social services. Covers the provision of special education and related services to eligible disabled children aged 3 through 21. 10/11 Revision

Section 504 Responsibilities Must ensure that no otherwise qualified individual with a disability shall, solely by reason of his/her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal funds. 10/11 Revision

Qualified Person with a Disability Must have a physical or mental impairment which substantially limits a major life activity (e.g., learning, behavior, mental). Learning substantially limited if compared to his/ her age/peers the students has significant limitations. Qualified person with disability must be provided aids, benefits, or services as effective as those provided non disabled students. 10/11 Revision

ADA Amendments Act of 2008 Effective Jan. 1, 2009. Amends ADA and conforms definition of disability in Section 504 with Amendments Act. Retains the elements of the term “disability,” but changes the meaning of “substantially limits a major life activity”. Requires “disability”, “substantially limits” and “major life activities” to be construed broadly 10/11 Revision

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Major Life Activities The Department’s Section 504 regulations’ list of non-exhaustive major life activities is: Caring for oneself Performing manual tasks Walking Seeing Hearing Speaking Breathing Learning Working 10/11 Revision 8 8

Major Life Activities (cont.) The Amendments Act non-exhaustive list of “general” major life activities includes all activities in the Section 504 regulations and the following: Eating Sleeping Standing Lifting Bending Reading Concentrating Thinking Communicating 10/11 Revision 9 9

Major Life Activities (cont.) The Amendments Act non-exhaustive list of “major bodily functions” is as follows: Functions of the immune system Normal cell growth Digestive Bowel Functions Bladder Brain Circulatory Endocrine Reproductive Neurological Respiratory 10/11 Revision 10 10

Major Life Activities (cont.) What does this mean for schools? A student with an impairment that substantially limits bowel function, such as colitis or Crohn’s disease, is a disabled student even if his impairment doesn’t limit any other major life activity. Bottom line: just about any activity that is of importance to a student’s life will qualify as a “major life activity. 10/11 Revision 11

Major Life Activities (cont.) What does this mean for schools? A majority of these additional major life activities are activities that school nurses deal with. Bottom line: more IHPs need to be official 504 plans with procedural safeguards, appropriate teams and possibly discipline protections. 10/11 Revision 12

Substantially Limits and Mitigating Measures Under the Amendments Act the “ameliorative effects of mitigating measures” must not be considered when determining if an individual is a person with a disability. Both the positive and negative effects of mitigating measures may be considered when determining whether someone is entitled to an accommodation. 10/11 Revision 13 13

Amendments Act Exception to Mitigating Measures Analysis The ameliorative effects of ordinary eyeglasses/contact lenses shall be considered in determining if an impairment substantially limits a major life activity. 10/11 Revision 14

Mitigating Measures and the Amendments Act No Definition – Non-exhaustive List: Assistive Technology Reasonable accommodations or auxiliary aids or services Learned behavioral or adaptive neurological modifications Medication, prosthetics, hearing aids (non-exhaustive list) 10/11 Revision 15

Substantially Limits and Mitigating Measures Bottom line: Though confusing, this change may not have a significant affect on the number of “504 only” students in a district. The ADHD student on medication and needing no accommodations would not be eligible. However, this same student may develop an educational need such as behavior problems and might need a 504 plan and receive discipline protections. 10/11 Revision 16

Episodic Impairments An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. Bottom line: Whether a district needs to develop a 504 plan, however, depends on whether the student’s impairment results in the need for an accommodation or some other type of related aid or service. 10/11 Revision 17

Temporary Impairments An impairment that is temporary (with an actual or expected duration of 6 months or less) is a disability if it is severe enough that it would substantially limit a major life activity for the student. Bottom line: Temporary and severe impact constitutes a disability; temporary and minor impact does not. 10/11 Revision 18

Temporary Impairments The determination of what constitutes severe or minor impact should be based on the severity,duration and impact of the disability. High school senior with dominate arm in cast for 5 months-severe? Kindergarten student with dominate arm in cast for 5 months?-minor? 10/11 Revision 19

When to Consider the Possible Existence of a Disability When a disability of any kind is suspected. When a student shows a pattern of not benefiting from the instruction provided. When a student is referred for evaluation for special education but it is determined not to do an evaluation. When a student is evaluated but is determined not IDEA eligible. When the student is identified as “at risk” or exhibits the potential for dropping out. 10/11 Revision

When to Consider the Possible Existence of a Disability When retention is being considered. When a student exhibits a chronic health condition. When a student returns to school after a serious illness. When a new building or remodeling is being considered. When substance abuse is suspected. When suspension or expulsion is being considered. 10/11 Revision

Section 504 Vs. IDEA Requires accommodation plan, not an IEP. Parents not required part of accommodation plan development. (Parent participation recommended) Required aids, benefits, or services (accommodations) generally provided by general education. No right to an independent evaluation. Re-evaluation required for any change of program or placement. No “stay put” under Section 504. 10/11 Revision

Section 504 Accommodation Process Suspicion of a Disability Referral for Evaluation Parent consent for initial evaluation 504 Team Evaluation Knowledgeable about student, disability, and placement options 504 Eligibility Determination Disability and substantial limitation Parent notification 504 Accommodation Plan/placement Parent consent for initial placement Parent notification Annual Review/Re-evaluation Annually/ Significant change Parent notification 10/11 Revision

What are Accommodations? Accommodations include any adjustments or modifications which enable a student with disabilities to benefit from their education These variations should not change the level, content, or performance criteria of the lesson, class, or activity and should not change the reliability and validity of any assessment 10/11 Revision

Types of Accommodations Change the instructional arrangement: Large group; Cooperative learning group; Peer partners; Individual instruction; Independent seat work. Change the lesson format: Lecture, demonstration,practice; Whole class discussion; Games and simulations; Experiential learning. Change the curriculum: Same content/less material; Same subject area/functional applications; Change of sequence; Alter the pace of the lesson; Provide a variety of activities. Change teaching style: Give more prompts or cues; Provide written and verbal instructions; Use more physical guidance; Institute behavioral management practices. 10/11 Revision

Types of Accommodations Modification of physical plant: Improve access to building Increase access to Classroom; Change of seating Increased Aisle, etc Change in policies or procedures: Revised attendance policy; Modified discipline procedures. Change Assessment: Adjusted format; Preferential seating; Adjust time. Change Classroom management: Modify rules; Modify consequences; Develop Behavior plans. 10/11 Revision

Problem Areas Unstructured times (lunch, playground) Transportation/fieldtrips Extracurricular activities (sports, plays, camps, senior trips- OCR Sports letter soon) Medications and other nursing services Medical Marijuana? Behavior discipline/expulsion Attendance and grading policies 10/11 Revision

Disability Harassment-Bullying The label (bullying, hazing, teasing) does not determine how a school should respond The nature of the conduct must be assessed for civil rights implications If abusive behavior on the basis of disability creates a hostile environment, a school is obligated to respond in accordance with applicable law (504/ADA) 10/11 Revision

Disability Harassment-Bullying When the behavior implicates the civil rights laws, school administrators must look beyond simply disciplining the perpetrators The schools responsibility is to: Eliminate the hostile environment; Address its effects; and Takes steps to ensure the harassment doesn’t recur 10/11 Revision

Disability Harassment-Bullying Recommended steps for Districts to take in disability harassment cases: Disciplinary action against harassers; Consultation with 504 coordinator to ensure comprehensive and effective response; Staff training on recognizing and responding to harassment; and Ongoing monitoring to ensure harassment doesn’t return 10/11 Revision

Transition Services under Section 504 A district must provide transition services under Section 504 if the district determines that the student needs transition services to receive a FAPE DVR encourages districts to refer 504 students to DVR prior to graduation 10/11 Revision

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Section 504 and IDEA Discipline Same rule of law (Change of placement, manifestation determination). Different obligations to students with disabilities long-term suspended or expelled. Different obligations to drug/alcohol students. No stay put under Section 504. No FBA or BIP review required. 10/11 Revision

Obligations to Suspended or Expelled Students Students may not be suspended for behavior related to his/her disability or an inappropriate program. Students may be suspended like non disabled students for behavior not related to his/her disability. Drug or alcohol related behavior not protected under Section 504. 10/11 Revision

Discipline Under Section 504 A school district cannot implement a disciplinary action which constitutes a significant change in a disabled student’s educational placement until it has satisfied required change of placement procedures. 10/11 Revision

Change of Placement Change of placement occurs if: a child is removed for more than 10 consecutive school days or is subjected to a series of removals that constitute a pattern because of factors such as length of each removal, total amount of time removed, and proximity of removals one to another. 10/11 Revision

Manifestation Determination Manifestation determination review shall be conducted: Immediately or no later than 10 school days after discipline decision; By a 504 team and other qualified personnel; To determine the relationship between the child’s disability and the behavior subject to the disciplinary action. 10/11 Revision

Manifestation Determination Criteria The behavior is a manifestation of the disability if: the conduct in question was the direct result of the school district’s failure to implement the 504 plan; or if the conduct in question was caused by, or had a direct and substantial relationship to the student’s disability. 10/11 Revision

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Other Requirements Designate at least one person to coordinate Section 504 compliance Adopt grievance procedures that provide for prompt and equitable resolution of complaints incorporate appropriate due process standards 10/11 Revision 40

Location and Notification Every year, each district must: Undertake to identify and locate qualified persons with a disability in the district who are not receiving a public education Take appropriate steps to notify disabled persons and their parents/guardians of the district’s duty under Section 504 Be sure to update you 504 polices and procedures periodically 10/11 Revision 41