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Implementing Section 504 as Amended by the ADAAA08

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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.

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