SECTION 504 MASSP CONFERENCE OCTOBER 22, 2013 PATTY DALEY HOWARD COUNTY PUBLIC SCHOOL SYSTEM EXECUTIVE DIRECTOR, SPECIAL EDUCATION AND STUDENT SERVICES

MASSP CONFERENCE OCTOBER 22, 2013 BEFORE YOU CAN CHANGE PRACTICE YOU MUST FIRST CHANGE HEARTS AND MINDS! KATIE HAYCOCK—EDUCATION TRUST

LEARNING OBJECTIVES By the end of this session, participants will: Understand the broadened scope of disabilities covered under Section 504 Deepen knowledge about key elements of IDEA and Section 504 Discuss the role of the administrator in ensuring the implementation of IEPs and 504 Plans

A LITTLE HISTORY Upon review of recent litigation, Congress believed the Supreme Court’s recent interpretation of the ADA had become overly stringent for employees to be found eligible for reasonable accommodations that would enable them to perform the essential functions of their job This was not the intention of the ADA – Congress revised with ADAAA (ADA Amendments Act of 2008) The ADAAA is a sister statute to Section 504 so Congress applied these changes to Section 504

AT YOUR SCHOOL, HAS THE NUMBER OF STUDENTS ELIGIBLE FOR A 504 PLAN INCREASED OR DECREASED IN THE LAST FEW YEARS?

WHAT IS SECTION 504? Section 504 is: A part of the Rehabilitation Act of 1973 that prohibits discrimination based upon disability. An anti-discrimination, civil rights statute that requires the needs of students with disabilities to be met as adequately as the needs of the non- disabled are met.

“ PERSON WITH A DISABILITY” PROTECTED UNDER SECTION 504 First prong: Has a physical or mental impairment which substantially limits one or more major life activities Second prong: Has a record of such an impairment, or Third Prong: Is regarded as having such an impairment Prongs 2 & 3 not eligible for 504 plans.

THE 3 PRONGS Under the ADAAA, Congress did not change the language of the 3 prongs – it is the same rubric to determine if a student is “a person with a disability” Instead, Congress added new meaning to various pieces of the existing language and some new approaches when applying the language of eligibility It significantly changed how the term “disability” is to be interpreted.

504 ELIGIBILITY CRITERIA-TWO QUESTIONS 1: Does the student have a qualifying physical or mental impairment (determined, as a result of an evaluation)? 2: Does the physical or mental impairment substantially limit one or more major life activities? (Must answer yes to both)

SECOND PRONG: HAS A RECORD OF A DISABILITY Why is such a student not eligible for a 504 Plan? Because the student does not have a physical or mental impairment which substantially limits one or more major life activities. However, the student is protected against discrimination.

SECOND PRONG: HAS A RECORD OF A DISABILITY Example: High school student had bone cancer at age 6; The coach will not let the student try out for the team and is afraid he will be hurt; The student is protected against discrimination based on a record of having a disability; The student has the right to try out for the team if otherwise qualified (grades, etc.); If not allowed to try out for this reason, parent can invoke their 504 procedural safeguards.

THIRD PRONG: STUDENT REGARDED AS HAVING AN IMPAIRMENT Why is such a student not eligible for a 504 Plan? Because the student does not have a physical or mental impairment which substantially limits one or more major life activities. However, the student is protected against discrimination.

EXAMPLE A class is going on a field trip to the glass museum. A student, who is not disabled, but is “hyper” and “clumsy” is a risk to take on the trip. The teacher calls the parent and says that the student can only go on the trip if the parent accompanies the student. Is this an example of discrimination based on a perceived disability?

EXAMPLE (CONT.) Yes. The teacher is not asking other parents to accompany their child for specific reasons. In this case the student is perceived as “disabled” (probably ADHD) and therefore is protected from discrimination.

REGARDED AS HAVING A DISABILITY If the impairment is actual (broken arm) or perceived (the bull in the china shop), and you discriminate against the person because of the actual or perceived impairment, it is considered a violation of 504. Example: Student in the movie “Mask” was not allowed to enroll in school due to the principal regarding him as disabled. His physical impairment did not substantially limit him in any way.

Dyslexia: The World As I See It – Elliott de Neve

CHANGES IN HOW THE TERM “DISABILITY” IS TO BE INTERPRETED BASED ON THE ADA AMENDMENTS OF 2008

CHANGE #1: Construe eligibility language in favor of broad coverage It seems in cases where the eligibility question could go either way, Congress would have the 504 Team determine the student is eligible.

CHANGE #2: EXPANSION OF MAJOR LIFE ACTIVITIES (INCLUDING MAJOR BODILY FUNCTIONS) Speaking Breathing Learning Working 504 initially listed “major life activities” such as: Caring for oneself Performing manual tasks Walking Seeing Hearing ** This list is not exhaustive

504 “major life activities” now also include: Performing manual tasks Speaking Listening Walking Seeing Hearing CHANGE #2: EXPANSION OF MAJOR LIFE ACTIVITIES (INCLUDING MAJOR BODILY FUNCTIONS) Sleeping Eating Standing Lifting Bending Reading Concentrating Thinking Communicating Caring for oneself ** This list is not exhaustive

Functions of the immune system Normal cell growth Digestive Bowel Bladder Neurological Brain Respiratory Circulatory Endocrine Reproductive functions CHANGE #2: A MAJOR LIFE ACTIVITY ALSO INCLUDES THE OPERATION OF A MAJOR BODILY FUNCTION, INCLUDING BUT NOT LIMITED TO:

CHANGE #3: IMPAIRMENTS THAT ARE EPISODIC OR IN REMISSION Considered a disability if they would substantially limit a major life activity when active - Examples: Seasonal allergies or asthma Migraines Cystic fibrosis Can’t deny simply because the disability, at the moment of evaluation, is not substantially limiting, when we know from experience that substantial limitation will recur.

CHANGE #3: IMPAIRMENTS THAT ARE EPISODIC OR IN REMISSION Remission: Applies to an impairment that was once active, and could return. Examples: Cancer Hepatitis, etc. Eligibility assumes that the impairment in remission was substantially limiting when it was active.

CHANGE #4: MITIGATING MEASURES “The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as: (I) Medication, medical supplies, equipment, or appliances, low-vision devices (excluding ordinary eyeglasses, contacts), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies;

CHANGE #4: MITIGATING MEASURES (CONT.) (II) Use of assistive technology (III) Reasonable accommodations (including accommodations in place in the classroom by the teacher) or auxiliary aids and services (i.e. Health Care Plans); or (IV) Learned behavioral or adaptive neurological modifications.”

CHANGE #5: LOWER STANDARD FOR “SUBSTANTIAL LIMITATION” No definition provided by education department “Substantial limitation” is something less than “significantly restricted” Compare to the average person in the general population A difference in which they perform the major life activity – manner, duration, condition

SECTION 504 DUTY TO EVALUATE & THE STUDENT WITH PHYSICAL IMPAIRMENTS Eligibility for 504 can be based on major life activities other than learning It takes more than cognition to learn. Learning means being a student and doing student things, accessing school programs, activities, etc. that require more than learning such as walking, breathing, eating, etc. Example – student with severe asthma – the major life activity is breathing and may require medication, use of inhaler at school as a “service” under Section 504.

SECTION 504 DUTY TO EVALUATE & THE STUDENT WITH PHYSICAL IMPAIRMENTS With the ADA amendments, OCR has determined that health plans are mitigating measures. To determine 504 eligibility, must subtract the positive benefits of the health plan (mitigating measure). Some students with health plans may be eligible for a 504 plan. This would require an evaluation for 504 eligibility by the 504 team. A referral to the 504 team should be considered because the child may need services; also provides parents with their parental rights. Always include the school nurse for these 504 meetings.

SECTION 504 DUTY TO EVALUATE – CHILD FIND HCPSS must conduct an evaluation of any student who, because of disability, needs or is believed to need, special education or related services or accommodations under a 504 plan. Evaluation begins with a review of existing data. The team may or may not have adequate data. The 504 team recommends additional data, if necessary.

CHILD FIND UNDER SECTION 504 AND IDEA (SPECIAL EDUCATION) When there’s debate – evaluate!

WHO ARE THE MEMBERS OF THE 504 TEAM ? A group of individuals knowledgeable about The child; The meaning of the evaluation data; and The placement options.

WHO ARE THE MEMBERS OF THE 504 TEAM? For medical impairments, attendance and involvement of the nurse is critical. The nurse should seek written consent to talk with the physician directly about the impact of the impairment on school performance and activities.

504 TEAM CONSIDERATIONS A medical diagnosis is not sufficient, in itself, to constitute a disability under 504. The illness must cause a substantial limitation on the student’s ability to learn or some other major life activity. The 504 team must draw upon a variety of sources of information (aptitude and achievement tests, classroom data, teacher input, etc.)

John has ADHD and needs a 405 plan Really Good Howard County School

SOME THINGS DOCTORS SAY HAVE MORE WEIGHT THAN OTHERS Doctors don’t prescribe 504 Plans– it is a team decision. They typically don’t see the student in the classroom A variety of sources of data must be considered. Various Data Points and Performance Measures: State assessment performance--PARCC MAP—Measures of Academic Progress PSAT—Participation and Performance Classroom Data Attendance rate

ASTHMA, ALLERGIES, CHEMICAL SENSITIVITIES Medical information from the student’s doctor or from school evaluation will be extremely important. Figure out the child’s allergen and and walk the student’s schedule. What is the exposure? Where does he have to travel? Who is he with? What is the level of exposure? Guidance is from the doctor, the decisions are made by the 504 team. This team would include the school nurse.

TEMPORARY IMPAIRMENTS From OCR: “A temporary impairment does not constitute a disability for purposes of Section 504 unless its severity is such that it results in a substantial limitation of one or more major life activities for an extended period of time.” Must be made on a case-by-case basis. Consider the duration (or expected duration) of the impairment and the extent to which it actually limits a major life activity.

SCHOOL ADMINISTRATIVE RESPONSIBILITIES 3 Roles identified in our schools: 504 Administrator 504 School-Based Coordinator 504 Case Manager

504 ADMINISTRATOR Attend 504 team meetings, as necessary, to support the team. Collaborate with the 504 coordinator to ensure that all staff members are complying with student 504 plans (same is true for implementation of IEPs). Ensure a student’s 504 status is known before any disciplinary sanction is imposed that would result in a student being excluded for more than 10 cumulative school days per school year.

504 ADMINISTRATOR (CONT.) Ensure all 504 team meetings are conducted in accordance with the 504 manual and BOE Policy Ensure that all students suspected of having a disability are immediately referred to an Individualized Education Program (IEP) or 504 team.

504 SCHOOL-BASED COORDINATOR May be a counselor, school psychologist, assistant principal, administrative intern. Limited or no classroom instruction responsibilities. Have a working knowledge of 504.

504 SCHOOL-BASED COORDINATOR Responsibilities: Attend 504 team meetings at the school, as necessary, to support the team. Ensure all 504 team meetings are conducted in accordance with sections in the 504 manual and BOE Policy 9060 Rehabilitation Act of Receive, manage, and maintain all 504 documents (including student 504 files – the blue folder in the student record) in conjunction with administrative support personal.

504 SCHOOL-BASED COORDINATOR Responsibilities (cont.): Ensure that any person who wishes to refer a student to the 504 team shall send their written request to the school-based 504 coordinator. Respond to student, staff, and parent 504 inquiries, as appropriate.

504 CASE MANAGER Responsibilities: Attend all 504 team meetings for the students to whom they are assigned. Ensure all 504 team meetings are conducted in accordance with HCPSS procedures and BOE Policy Ensure that necessary school-based staff are aware of student 504 plans as appropriate. Ensure that all 504 documents for their assigned students are completed appropriately.

DISCIPLINE 504 provides protections for students with a 504 Plan. Students with a 504 Plan can be suspended, with cause, for up to 10 days in one school year. Manifestation determination meeting is required if suspension beyond 10 days is being considered.

MANIFESTATION MEETING If the behavior was a manifestation of the student’s disability, the student may not receive an extended suspension beyond 10 days. Not a manifestation: The student is treated as a nondisabled student; may be suspended beyond 10 days. FAPE does not need to be provided…unless new Discipline Regulations change COMAR and require all students on extended suspensions to receive FAPE.

DISCIPLINE No 504 protections, including manifestation, for a student who is currently engaging in the illegal use of drugs or in the use of alcohol to the same extent that such disciplinary action is taken against students who are not individuals with disabilities (some exclusions apply). Possession only (not an active drug user) will require a manifestation meeting for a suspension over 10 days/year. Always provide 504 rights with suspension letter, (same as suspension of a student with an IEP).

COMMON ERRORS IN IDENTIFICATION AND ELIGIBILITY DECISIONS Ignoring the physical/mental impairment requirement Ignoring the substantial limitation requirement Basing eligibility on anticipation of future needs Failing to review or dismiss appropriately Basing eligibility solely on a medical diagnosis with no substantial impairment

COMMON ERRORS IN IDENTIFICATION AND ELIGIBILITY DECISIONS Basing the decision on the student’s potential. It is not about the student’s potential. It is the average student in the average population. Major life activity includes those basic activities that the average person in the general population can perform with little or no difficulty. Ask yourself, “does the disability prevent the student from getting what everyone else gets.”

COMMON ERRORS IN IDENTIFICATION AND ELIGIBILITY DECISIONS Passing from grade to grade is only a consideration if the student is falling further and further below norms for their age. This is not succeeding. There is no disability that is automatically covered. Former special education students may likely be eligible for a 504 Plan.

"I cannot teach anybody anything, I can only make them think." -- Socrates

DYSLEXIA: A LANDMARK CASE case