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1
SECTION 504 LEGAL OVERVIEW
presented by:
Thomas Mock
Vickie Brown
Rebecca Hardiman
Rodney C. Lewis
July 21, 2011
Mega Conference
Mobile, Alabama
2
I. INTRODUCTION
3
Two Federal Statutes
Specifically Impact Public Schools and
their Relationships with Disabled Students
Section 504 of the Rehabilitation Act of 1973
(Section 504)
Individuals with Disabilities Education Act
(IDEA)
4
Section 504
The Rehabilitation Act of 1973 is a broad federal
civil rights law that provides rights to disabled individuals.
Section 504 is that portion of the Rehabilitation Act of 1973 that bars discrimination against the disabled in all programs, agencies, etc., receiving federal funding, including public schools.
5
What Does Section 504 of the
Rehabilitation Act Actually Say?
“No (1) otherwise qualified (2) handicapped
individual . . . shall, solely by reason of his
handicap, be excluded from participation in, be
denied the benefits of, or be subjected to
discrimination under any program or activity
receiving Federal financial assistance. . .”
29 U.S.C. 794 (1973).
6
Section 504’s Two Part Obligation
Upon Public Schools
1. Section 504 has a nondiscrimination
mandate.
2. Section 504 has a FAPE mandate.
7
Section 504’s
“Nondiscrimination” Mandate
Prohibition upon excluding a disabled student
from participating in or benefiting from programs
or services provided by public schools to all
students due to a student’s disability.
Nondiscrimination mandate impacts issues such as
disciplinary change of placements, extra-curricular
activities, accessibility to buildings, out-of-district
enrollment criteria, after-school programs,
attendance policies, etc.
8
504 student must still be “otherwise qualified” for
non-FAPE programs and services and schools are
not required to alter the “fundamental nature” of
its non-FAPE programs and services.
Nondiscrimination mandate also applies equally to
students being served solely under the IDEA.
Section 504’s
“Nondiscrimination” Mandate
Section 504’s Supplemental
“FAPE” Mandate
The 504 regulations define FAPE as the provision
of services that:
i. are designed to meet the individual needs of
handicapped students as adequately as the needs
of nonhandicapped students are met and
ii. are based upon adherence to procedures that
satisfy the requirements of 504.
34 CFR 104.33(b)(1).
10
Three Ways That Section
504 is Enforced
U.S. DEPARTMENT OF EDUCATION, OFFICE
FOR CIVIL RIGHTS
LOCAL DUE PROCESS HEARING
JUDICIAL REMEDIES
504’s Procedural Requirements
Appointment of a Section 504 coordinator.
Adoption of a grievance procedure.
Nondiscrimination notice.
Procedural safeguards as to identification,
evaluation, and placement of 504 students. 11
504’s Procedural Safeguards
Requirement.
A district is required to establish a system of
procedural safeguards with respect to actions
regarding identification, evaluation, and placement
to include:
1. Notice
2. Review of records.
3. Impartial hearing provisions.
4. Review procedure
12
II. ADAAA’S IMPACT UPON
SECTION 504
ADA Amendments
Americans with Disabilities Act Amendments
(Effective 2009) deemed by Congress to also be
applicable to Section 504.
14
ADA Amendments
ADAAA has broadened the scope of public school
students eligible under Section 504.
More students will now qualify for Section 504.
15
ADA Amendments
Schools must recognize new sub-categories of major life activities such as reading and attention.
Prohibits school from considering the positive effects of mitigating measures. (medication, healthcare plans, accommodations).
Requires schools to consider conditions in remission and/or episodic as if symptomatic. (cancer, allergies, etc.).
16
ADA Amendments
On a positive note, the “substantial limitation
when compared to average student standard” for
Section 504 eligibility still remains.
Rim of World Sch. Dist., 109 LRP 27323 (OCR
2009).
17
Post-ADAAA OCR Opinions
See, FAQs about Section 504, Question 34 (OCR 2009).
Fox (MO) C-6 Sch. Dist., 109 LRP 54751 (OCR 2009).
St. Clair County (MI) Regional Educational Service
Agency, 53 IDELR 238 (OCR 2009).
Rim of World Sch. Dist., 109 LRP 27323 (OCR 2009).
18
19
III. 504: ELIGIBILITY AND
EVALUATION
20
504 Eligibility Criteria
Under 504, a student is disabled or eligible if:
A. the student has a 1. physical or mental
impairment which 2. substantially limits one or
more of such student’s 3. major life activities.
B. has a record of such an impairment; or
C. is regarded as having such an impairment.
(29 USC Sec. 706(8)).
504 Team’s Three Prong Eligibility
Check-Sheet
1. Physical or Mental Impairment
2. Substantially Limits
3. Major Life Activity
22
What is a “Physical or Mental
Impairment” Under 504?
Since the entire focus of Section 504 is
nondiscrimination arising from a
disability, the presence of some
impairment is necessary.
Almost any medical or psychological
disorder will suffice.
34 C.F.R.§104.3(j)(2)(i).
23
What Constitutes a “Major Life
Activity” Under Section 504?
Section 504 does not provide an exhaustive list.
“Learning” is not the sole major life activity that
may qualify a student for services.
Activities such as walking, seeing, hearing,
speaking, breathing, learning and working.
34 CFR 104.3(j)(1).
What Does “Substantially Limits”
mean under 504?
“Average Student” comparison standard remains
applicable under ADAAA.
School cannot consider the effect of “mitigating measures”
in determining eligibility.
Impairment that is episodic or in remission must be
considered as if active.
See, FAQs about Section 504, Question 34 (OCR 2009).
Implementation Tips
If parent requests Section 504 services, school
must make a referral for evaluation under Section
504. This does not mean that the student will be
found eligible.
25
Implementation Tips
Students with medical conditions such as diabetes, asthma, allergies, etc. will largely qualify for initial Section 504 eligibility if condition results in a substantial limitation.
Despite the ADA Amendments, students with only mild academic and/or behavior problems should still not be made eligible for Section 504. (However, still accept the referral if parent initiated).
26
Implementation Tips
Accept or recognize that some students with
episodic or mitigated disabilities, will now
initially qualify for Section 504, but will not be in
need of an actual Section 504 accommodation
plan.
Two general options for school districts as to issue
of Section 504 plan for student with episodic or
mitigated disability . 27
Option One-Provide No Plan
No structured Section 504 plan provided.
Remember: Student is still entitled to protection
from discrimination.
Provide parent with notice of eligibility, reasons
why no accommodation plan provided, and
procedural rights.
Schedule periodic reviews to confirm that no
accommodations still not needed.
28 28
Develop Section 504 plan specifying what
accommodations would be provided if and when
certain contingencies occur.
Declining academic performance, increased
absences, behavioral issues, change in medication,
or a proposed disciplinary change of placement
would be typical contingencies.
29
Option Two-Develop Contingency
Section 504 Plan
29
COMMON 504
ELIGIBILITY/EVALUATION
QUESTIONS
30
31
1. May a school require a parent to
provide a medical/psychological
diagnosis?
No. If school determines such is necessary in
order to determine the student has a disability, the
school must obtain at its expense .
Williams County (TN) Sch. Dist., 32 IDELR
61(OCR 2000).
2. Can a 504 eligibility determination
be made solely upon a medical or
psychological report?
No. School must still determine if impairment
“substantially limits” “a major life activity”.
Eligibility must be based upon information from a
variety of sources. 34 C.F.R. 104.35
Cle Elum-Roslyn (WA) Sch. Dist., 41 IDELR 271
(OCR 2004).
32
33
3. What if a parent will not allow access
to necessary medical or psychological
information?
A determination of no eligibility is appropriate when
school has no other sufficient evaluative materials to
make an informed eligibility decision.
Montgomery Co. Pub. Sch., 31 IDELR 84 (1999).
Evaluation decision based upon existing data still
required.
Rose Hill (KS) Pub. Sch., 46 IDELR 290 (2006)
34
4. What about temporary disabilities?
Must be considered on a case by case basis considering the duration and degree of disability.
Many temporary impairments can be appropriately addressed via general education services, i.e., medical plan, homebound, make-up work, minor classroom/accommodations.
*Remember: The student must be properly evaluated out of Section 504.
See, FAQs about Section 504, Question 34 (OCR 2009).
35
5. Should a Section 504 Plan be
provided to a pregnant student?
Pregnancy is generally not a qualifying disability
under Section 504 unless substantial medical
complications arise. Lacoparra v. Pergament
Home Centers, Inc., 11 NDLR 48 (S.D. N.Y.
1997).
* Remember: Title IX and other federal laws provide
near identical protections as Section 504 to a
pregnant student.
36
6. What about Section 504 eligible
transfer students?
Section 504 transfer student remains
entitled to FAPE upon new enrollment.
Receiving school must implement current
Section 504 plan to the extent practical,
until the receiving school’s team can meet
to determine appropriateness. (If not
appropriate, team would pursue evaluations
and revisions to plan.)
OCR FAQ 38 & Flagler County FL) School
Dist., 34 IDELR 182 (OCR 2000).
7. What if a parent disagrees with
team’s finding of non-eligibility?
Provide parent with notice as to team’s decision
and reasons for eligibility denial.
Provide parent with Section 504 procedural due
process rights.
It is then up to the parent to pursue a challenge to
the team’s decision of non-eligibility. (OCR
complaint or request for local due process
grievance/hearing).
37
8. What if a parent refuses consent
for evaluation or placement?
Schools may but are not required to pursue a due
process hearing to seek override of a parent’s
refusal.
It is likely that the USDOE will negate this rule in
the near future so as to be compliant with IDEA.
See, FAQs about Section 504, Question 41 (OCR
2009).
38
9. Can a Parent Refuse IDEA and
Demand A 504 Plan?
Unclear following ADAAA 2008. Probably no.
Letter to McKethan, 25 IDELR 295 (OCR 1996).
Rejection of FAPE under IDEA is tantamount to
rejection of FAPE under Section 504. Schools
have no obligation to provide Section 504 plan
when a parent has rejected IDEA services.
Have 504 team re-offer IDEA IEP.
39
10. How should public schools
determine eligibility for
students with episodic
and/or mitigated
disabilities?
40
Examples: ADHD controlled by medication,
cancer in remission, immune deficiencies that ebb
and flow, diabetes controlled by insulin, etc.
Eligibility determination must be based on the
severity of the condition when it is at its most
symptomatic and/or without medication.
Utilize older educational records, medical records,
and teacher/parent input. 41
42
IV. SECTION 504 PLAN
Section 504 Plan
Under the 504 regulations, a school district is required to provide FAPE to each qualified handicapped student when such services are required to meet the student’s educational needs as adequately as the educational needs of nondisabled students are met.
34 CFR 104.33(a).
44
Section 504 Plan
Services necessary for FAPE are commonly
documented in a “504 Plan”.
45
Section 504 Plan
Unlike IDEA, a Section 504 plan does not have
requirements such as goals or objectives, a
transition plan, present educational level, access to
general curriculum rationale, progress reports, or
transfer of rights provision.
Mark H. v. LeMahieu, 513 F.3d 922 (9th Cir. 2008).
46
Minimum OCR Requirements for
Section 504 Plan
Nature of disability/major life activity impacted.
Necessary accommodations.
Placement or location of accommodations/services. (LRE)
Beginning date/ending date.
47
Section 504 Plan
Goal of plan is not to provide accommodations
sufficient to ensure an equal opportunity and not
equal outcome.
Section 504 Plan
Section 504 does not require a public school to
provide a potential-maximizing educational
program.
J.D. Pawlet Sch. Dist., 224 F.3d 60 (2nd Cir. 2000).
48
Evaluation data allows the Section 504 team to distinguish between “parentally-desired” versus “504 required” accommodations.
Legal duty to provide an accommodation solely arises from the evaluation data and not parent demand.
Murfreesboro (TN) School Dist., 34 IDELR 299 (OCR 2000).
49
V. Discipline
50
51
Short Term Removals (10 days or less)
- No “change of placement”
Long Term Removals (More than 10
days)
- “Change of placement”
Disciplinary Rules Divide Removals into
Two Separate Sets of Rules or
Limitations
52
Do schools have to count days of
ISS as removal days?
ISS will not count towards the 10 day total as long as
the student continues:
to have an opportunity to progress in the general
curriculum;
to receive Section 504 services; and
to continue to participate with non-disabled peers,
and remains on his or her campus.
Dunkin (MO) Sch. Dist., 52 IDELR 138 (OCR
2009).
53
A. SHORT TERM REMOVALS
54
Basic Short Term Removal Rule
(10 Day FAPE Free Zone)
School personnel may remove a disabled student without services for not more than 10 school days each school year for the violation of a disciplinary rule (to the extent such removals are applied to students without disabilities).
The school system is not required to provide educational services for the first 10 school days in a school year that a student is removed, if services not provided to students without disabilities.
55
Short term removals appropriate even if related to student’s disability.
No requirement for a manifestation
determination review or any other procedural safeguard.
56
B. LONG TERM REMOVALS
57
Long Term Removals
Long term removals (greater than 10 days) trigger
the more elaborate procedural protections such as
the requirement for a manifestation
determination hearing.
Section 504 Alcohol/Drug Exception
Section 504 students lose the right to a
manifestation determination and due process
hearing if they violate drug or alcohol rules and
are determined to be “current users”.
Mere possession of drugs or alcohol would not fall
under this exception.
17 EHLR 609 (OCR 1991).
58
C. Manifestation Determination
A manifestation determination conference is
procedurally required if a proposed disciplinary
sanction constitutes a long-term removal/change
of placement.
60 60
Why is M.D. Outcome so important?
If the misconduct is deemed a manifestation of
the student’s disability, the school must return the
student to his regular placement unless the parent
and school decide on a different placement.
61 61
Why is M.D. Outcome so important?
If the misconduct is not found to be a
manifestation of the student’s disability, a school
may apply its regular discipline rules in the same
manner it would do so for a nondisabled student
62 62
Two Questions for M.D. Team
1. Did the conduct bear a direct and substantial
relationship to the student’s disability?
2. Was the conduct the direct result of the LEA’s
failure to implement the student’s IEP?
63
Question One
How should IEP Team determine
whether the conduct bore a direct
and substantial relationship to the
student’s disability?
64 64
65
The commentary to the final IDEA regulations states:
“The revised manifestation provisions in section
615 of the Act provide a simplified, common sense
manifestation determination process that could be
used by school personnel….The Conferees further
intended that “if a change in placement is
proposed, the manifestation determination will
analyze the child’s behavior as demonstrated
across settings and across time when determining
whether the conduct in question is a direct and
substantial result of the disability.”
34 C.F.R. § 300.530(e).
Question Two
How does IEP team properly
determine whether conduct was
due to District’s failure to
implement IEP?
66 66
67
Failure to implement must be related to the conduct at issue.
The appropriateness of the student’s current plan is not an issue in a manifestation determination.
67