SECTION 504 - MO-CASEmo-case.org/resources/Documents/BOD/BOD Mtg 09-22... · Section 504 does not require that all members of the placement team agree to educational decisions. If

1

PLACEMENT DECISIONS UNDER SECTION 504:

LEGAL REQUIREMENTS AND REAL-WORLD SCENARIOS

Betsey A. Helfrich, Esq.

Mickes O’Toole, LLC12444 Powerscourt Dr., Suite 400St. Louis, Missouri 63131Telephone: (314) [email protected]

COPYRIGHT HELD BY AUTHOR, REPRINTED WITH PERMISSION.

SECTION 504

Section 504 of the Rehabilitation Act of 1973 (Sept. 26, 1973), codified at 29 U.S.C. § 701 et seq. Regulations at 34 C.F.R. Part 104 First U.S. federal civil rights protection for individuals with

disabilities Non-discrimination law


SECTION 504

Section 504 of the Rehabilitation Act provides, in pertinent part, that “no otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the 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(a)

Mickes O'Toole, LLC

2

WHAT DOES SECTION 504 SAY ABOUT PLACEMENT?

4


WHAT DOES SECTION 504 SAY ABOUT PLACEMENT?

“A recipient to which this subpart applies shall educate, or shall provide for the education of, each qualified handicapped person in its jurisdiction with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person. A recipient shall place a handicapped person in the regular educational environment operated by the recipient unless it is demonstrated by the recipient that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. Whenever a recipient places a person in a setting other than the regular educational environment pursuant to this paragraph, it shall take into account the proximity of the alternate setting to the person’s home.”

34 C.F.R. § 104.34(a)


LEAST RESTRICTIVE ENVIRONMENT

Court decisions: Section 504 requires a district to place a student with a disability in the LRE that will provide meaningful educational benefit. Molly L. v. Lower Merion Sch. Dist., 36 IDELR 182 (E.D. Pa.

2002)

OCR has recognized an LRE requirement under 504. Palm Springs (CA) Unified Sch. Dist., 61 IDELR 174 (OCR

2013)

Mickes O'Toole, LLC

3


504 V. IDEA LRE

Similar placement process under both laws

IDEA - 34 C.F.R. § 300.116

“The critical language of both laws serves to create a presumption in favor of inclusion.” Letter to Williams, 21 IDELR 73 (OSEP 1994)


504 PLACEMENT DECISIONS

The placement decision is the determination of: Eligibility; Special education programming; and Related services and accommodations that a student must

receive in order to receive FAPE and the setting in which he/she will be educated. 34 C.F.R. § 104.33; 34 C.F.R. § 104.35(c); see also Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (OCR 2009)


504 PLACEMENT DECISIONS

Defined by OCR as: “decisions about whether any special services will be provided to the student and, if so, what those services are.” Escondido (CA) Union Elem. Sch. Dist., 109 LRP 24519 (OCR

01/06/09)

Mickes O'Toole, LLC

4


PLACEMENT

OCR defines placement as a term used in the elementary and secondary school context.

Placement refers to the regular and/or special educational program in which a student receives educational and/or related services. Frequently Asked Questions About Section 504 and the Education of

Children with Disabilities (OCR 2009)

Placement also includes the provision of related services such as transportation. Oneida (NY) City Sch. Dist., 54 IDELR 173 (OCR 2009)


SCENARIO

Betty is the 504 coordinator for the elementary school. She receives a message from a parent that states that she is requesting help for her child who was recently diagnosed with ADHD. Betty calls the parent back right away and they discuss and develop a 504 plan, which places the student in the district’s behavior classroom. Betty is proud of herself for being so efficient.


PRE-PLACEMENT EVALUATION

Before identifying a student as having a disability under Section 504, the district is required to conduct an initial or pre-placement evaluation of the student to determine if she has a mental or physical impairment that substantially limits a major life activity before taking action with respect to initial placement.

Mickes O'Toole, LLC

5



Pre-placement evaluation: “A recipient that operates a public elementary or secondary education program or activity shall conduct an evaluation in accordance with the requirements of paragraph (b) of this section of any person who, because of handicap, needs or is believed to need special education or related services before taking any action with respect to the initial placement of the person in regular or special education and any subsequent significant change in placement.”

34 C.F.R. § 104.35(a)



Evaluation could consist of: Review of existing data Observation Request for medical or additional outside information Assessment


EVALUATION PROCEDURES

Evaluation procedures: “A recipient to which this subpart applies shall establish standards and procedures for the evaluation and placement of persons who, because of handicap, need or are believed to need special education or related services which ensure that:

(1) Tests and other evaluation materials have been validated for the specific purpose for which they are used and are administered by trained personnel in conformance with the instructions provided by their producer;

34 C.F.R. § 104.35(b)(1)

Mickes O'Toole, LLC

6


EVALUATION PROCEDURES (CONT’D.)

(2) Tests and other evaluation materials include those tailored to assess specific areas of educational need and not merely those which are designed to provide a single general intelligence quotient; and

(3) Tests are selected and administered so as best to ensure that, when a test is administered to a student with impaired sensory, manual, or speaking skills, the test results accurately reflect the student’s aptitude or achievement level or whatever other factor the test purports to measure, rather than reflecting the student’s impaired sensory, manual, or speaking skills (except where those skills are the factors that the test purports to measure).”

34 C.F.R. § 104.35(b)(2)-(3)


SCENARIO

At the review of existing data meeting, the 504 teamdetermines that assessment is required through the evaluationprocess. At the end of the meeting, the science teacher begins todiscuss the student’s recent behaviors. Betty, after learning of theextreme behaviors, tells the team that she has decided that untilthe evaluation is complete, the student will be placed onhomebound.


WHILE THE EVALUATION IS PENDING

Develop a temporary plan to address student misconduct until an appropriate plan can be developed. Suffolk (VA) Pub. Schs., 116 LRP 35863 (OCR 05/04/16)

Mickes O'Toole, LLC

7


SCENARIO

After the evaluation results are obtained, Betty compiles thedata and reviews it in her office. She can tell right away that thestudent is eligible under Section 504, so she drafts a plan forhim. She decides it will be best, based on the student’sbehaviors, if he is placed full time in the district’s classroomdesigned with supports and appropriate staff to work withstudents with significant behaviors. She will move the student tothat classroom starting tomorrow.


PLACEMENT PROCEDURES

Placement procedures. In interpreting evaluation data and in making placement decisions, a recipient shall (1) draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior, (2) establish procedures to ensure that information obtained from all such sources is documented and carefully considered, (3) ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and (4) ensure that the placement decision is made in conformity with § 104.34.

34 C.F.R. § 104.35(c)


PLACEMENT TEAM

The regulations do not explicitly include parents, but “parents are key members of this knowledgeable group.” Escondido (CA) Union Elem. Sch. Dist., 109 LRP 24519 (OCR

01/06/09)

Mickes O'Toole, LLC

8


PLACEMENT TEAM

When a student transferred into a new district and the evaluation meeting did not include the parent, the district violated 504.

By excluding the parent, the team did not have all the information it needed to make a sound decision.

Thus, the parent/guardian may be a required participant. Sequoia (CA) Union High Sch. Dist., 110 LRP 4676 (OCR 07/31/09)


PLACEMENT TEAM

When a meeting is convened for a student whose medical condition may require the provision of aids or services, a medical professional with adequate and student-specific knowledge of the medical condition should attend the meeting.

Student with asthma and food allergy; no nurse or doctor attended. Little discussion of medical issues at meeting. School nurse had discussion of medical condition when developing IHP prior to the meeting.

Charlotte-Mecklenburg (NC) Schs., 54 IDELR 267 (OCR 2009)


CONSENT TO PLACE

Section 504 does not contain explicit consent provisions.

If a parent refuses consent for an initial evaluation or placement under 504, a district may use the 504 due process hearing requirements to override the parent’s decision but is not required to do so.

Letter to Zirkel, 22 IDELR 667 (OCR 1995)

Mickes O'Toole, LLC

9


SCENARIO

Betty gathers the 504 team to review placement and develop a plan. After discussing placement options and corresponding data, it becomes clear that the student’s most appropriate placement is in the classroom with his peers with some time in the social skills classroom. The student’s mom disagrees wholeheartedly and insists that the student be educated in a private day facility in the next town.


PLACEMENT DECISIONS

Section 504 does not require that all members of the placement team agree to educational decisions. If parents disagree with the placement team decision, they may resolve the dispute through a due process hearing. Calvert County (MD) Pub. Schs., 41 IDELR 139 (OCR 2003) See also Parent and Educator Resource Guide to Section 504 in Public

Elementary and Secondary Schools (OCR 2016).


PLACEMENT DECISIONS

To make solid placement decisions and minimize disputes: Establish procedures to ensure that information obtained from

all such sources is documented and carefully considered. 34 C.F.R. § 104.35

Mickes O'Toole, LLC

10


PLACEMENT DECISIONS

Students with disabilities should not miss opportunities because of their placements. Mystic Valley Reg’l Charter Sch., 40 IDELR 275 (SEA MA

2004)

Make placement decisions based on individual student needs.


PLACEMENT DECISIONS

Age: Presumption that student should be educated with age-

appropriate peers. District bears burden of demonstrating that placement without

consideration of age is required to provide FAPE. Henderson County (NC) Sch. Dist., 19 IDELR 179 (OCR 1992)

Individual situation after assessment may justify age difference.


CONTINUUM OF PLACEMENT

No express continuum of alternative placements provision in Section 504.

OCR - Districts may be required to offer a “continuum of special education services.” Boston (MA) Renaissance Charter Sch., 26 IDELR 889 (OCR

1997)

Mickes O'Toole, LLC

11


NEIGHBORHOOD SCHOOL

A recipient shall place a student with a disability in the regular educational environment, unless it can be demonstrated that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. 34 C.F.R. §104.34(a)

Whenever a recipient of federal funding places a person with a disability in a setting other than the regular educational environment, it shall also take into consideration the proximity of the alternate setting to the person’s home. 34 C.F.R. § 104.34(a). See also Miami-Dade County (FL) Sch. Dist.,

34 IDELR 268 (OCR 2000).


NEIGHBORHOOD SCHOOL

Preference for neighborhood school as factor to consider in placement decision. Veazey v. Ascension Parish Sch. Bd., 40 IDELR 179 (M.D. La. 2004),

aff'd, 42 IDELR 140 (5th Cir. 2005, unpublished)

School not required to make fundamental modifications to keep student at neighborhood school. B.M. v. Board of Educ. of Scott County, Ky., 51 IDELR 5 (E.D. Ky.

2008)


PLACEMENT AND STUDENT BEHAVIOR

For a student whose disability manifests as significant behavioral problems, a sound placement will include steps to modify the student's behavior to those that are more acceptable and consistent with future academic success.

Putting a student on a behavior plan can be of benefit, but it must be individualized and based on evaluation data. Long Beach (CA) Unified Sch. Dist., 53 IDELR 58 (OCR 2009)

Follow disciplinary procedures as appropriate.

Mickes O'Toole, LLC

12


SCENARIO

Billy is a student with a serious health condition. With a solid health plan and Section 504 plan, he has been doing great at school. However, one day Betty gets a note from a local doctor on a prescription pad that states: “Billy needs homebound ASAP. School is teeming with sick kids. Dangerous.”


HOMEBOUND

A doctor’s generalized impression that public schools are “full of sick kids” did not mandate that a student had to receive homebound instruction in order to receive FAPE.

The student’s team considered all the available information regarding student’s medical condition, as well as his educational abilities and needs.

The school’s small student population, highly trained staff, including a full-time registered nurse, and commitment to proper infection control precautions made the school setting a reasonably safe environment for the child.

A hearing officer concluded that the proposed placement offered the student FAPE in the LRE. Gwinnett County Sch. Dist., 114 LRP 43625 (SEA GA 09/10/14)


HOMEBOUND

A district must determine a student’s educational placement based on his individual needs. Alabaster City (AL) Sch. Dist., 114 LRP 45081 (OCR

05/15/14): A district violated Section 504 when it required all students to submit a physician’s note before finding them eligible for homebound placement.

Forest Hills (MI) Pub. Schs., 62 IDELR 66 (OCR 2013): Evidence showed that the district failed to consider the student’s specific medical needs when it determined the student’s placement.

Mickes O'Toole, LLC

13


STUDENTS WITH MEDICAL CONDITIONS

A district may not unilaterally exclude a student with a medical condition or discontinue the student’s services, even if it believes that it cannot accommodate the student’s disability.

Make individual determination based on student needs. Duval County (FL) Pub. Schs., 113 LRP 27887 (OCR 04/19/13)


STUDENTS WITH MEDICAL CONDITIONS

A district is obligated to evaluate or reevaluate the student’s needs in accordance with Section 504’s procedural requirements before implementing a significant change in placement. Capistrano Connections Acad. Charter Sch. (CA), 114 LRP

53379 (OCR 07/29/14) Wake County (NC) Pub. Sch. Sys., 62 IDELR 215 (OCR 2013)


PRIVATE SCHOOL STUDENTS

If a district has made FAPE available and the parent/guardian places the student at a private school, then the district is not required to provide services to the student at the private school.

Districts still have child find responsibilities with respect to resident students attending private schools, but disseminating notices to private schools and in newspapers may be sufficient. Letter to Veir, 20 IDELR 864 (OCR 1993)

Mickes O'Toole, LLC

14


HOME-SCHOOLED STUDENTS

If a district has offered FAPE but the parent decides not to enroll the student in the public schools, then the district is not responsible under 504 for the provision of educational services to the students. Letter to Veir, 20 IDELR 864 (OCR 1993)


RESIDENTIAL PLACEMENT

“If a public or private residential placement is necessary to provide a free appropriate public education to a handicapped person because of his or her handicap, the placement, including non-medical care and room and board, shall be provided at no cost to the person or his or her parents or guardian.”

34 C.F.R. § 104.33(c)(3)


RESIDENTIAL PLACEMENT

Generally, a residential placement is required only when the student cannot make educational progress any other way. T.F. v. Special Sch. Dist. of St. Louis County, 45 IDELR 237 (8th

Cir. 2006)

Mickes O'Toole, LLC

15


ALTERNATIVE PLACEMENTS

Consider use of technology?

Private day facility?

Neighboring school district?

Host classroom for tuition-paying students in district?


SCENARIO

Betty’s district is seeing an increase in the number of students with severe

disabilities. The school is considering developing a program designed

exclusively for students with severe disabilities. The district is running out

of space, so the option of placing two portable units outside of the

regular school building is being examined. The Board of Education asks

for Betty’s opinion about this plan.


PLACEMENT AND DISCRIMINATION

Marion County (TN) Sch. Dist., 111 LRP 59226 (OCR 05/18/11): OCR: The location of the program for students with severe

disabilities outside the main building has the effect of separating the students as a group from the rest of the school and limits them in the “enjoyment of inclusion.”

The use of portable units also restricts these students during non-instructional time in social engagement with their peers.

504 and Title II subordinate convenience to the prohibition against any unnecessary segregation.

Mickes O'Toole, LLC

16


DISCRIMINATION

Intentional

or

Disparate impact• Does not target a certain group but harms one group over another.


SUPPLEMENTARY AIDS AND SERVICES

Related aids and services must be provided to the extent that they enable the school district to meet the individual educational needs of students with disabilities as adequately as it meets the needs of nondisabled students.

34 C.F.R. § 104.33(b)



District shall place a student with a disability in the regular educational environment, unless it can be demonstrated that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily.

34 C.F.R. § 104.34

Mickes O'Toole, LLC

17



Whether a student with a disability is entitled to a related service is a decision that must be made by a group of knowledgeable people.

34 C.F.R. § 104.35(c)



Section 504 regulations do not list specific types of related services.

OCR: Legal principles regarding the identification of specific related services are similar under the IDEA and Section 504.


EXTRACURRICULAR ACTIVITIES

Section 504 - A school may not deny a qualified person with a disability the opportunity to participate in or benefit from an aid, benefit, or service.

A district “shall provide non-academic and extracurricular services and activities in such a manner as is necessary to afford handicapped students an equal opportunity for participation in such services and activities.”

34 C.F.R. § 104.37

Mickes O'Toole, LLC

18


IN RE: DEAR COLLEAGUE LETTER OF JAN. 25, 2013, 62 IDELR 185 (OCR 2013)Provision of an equal opportunity “does not mean every student with a disability has the right to be on an athletic team, and it does not mean that school districts must create separate or different activities for students with disabilities.”

A district must conduct an individualized inquiry to determine whether reasonable modifications or necessary aids and services would provide a student with a disability with an equal opportunity to participate in an extracurricular activity.

Example: Using a light with the starter pistol for a runner who is deaf.


REEVALUATION

“Reevaluation. A recipient to which this section applies shall establish procedures, in accordance with paragraph (b) of this section, for periodic reevaluation of students who have been provided special education and related services. A reevaluation procedure consistent with the Education for the Handicapped Act is one means of meeting this requirement.” 34 C.F.R. § 104.35(d)


PERIODIC REEVALUATION

May be conducted in accordance with the IDEA, which requires reevaluation every three years or more frequently if conditions warrant. But only periodic is required.Reevaluations are also required prior to any significant change in placement.OCR considers transferring a student from one type of program to another or terminating or significantly reducing a related service a significant change in placement.Disciplinary removals can constitute a significant change in placement.

Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (OCR 2009)

Mickes O'Toole, LLC

19


SIGNIFICANT CHANGE IN PLACEMENT

“A significant change in placement is a significant change in the type or amount of regular or special education or related aids or services provided to a student with a disability and may include the addition or elimination of a program or service, or a substantial increase or decrease in the amount of time a program or service is provided.” Sultan (WA) Sch. Dist., 111 LRP 28318 (OCR 10/08/10)


GRADUATION

OCR considers graduation to be a significant change of placement for the purposes of triggering procedural safeguards.

However, reevaluation prior to proposing graduation is not necessarily required under 504.

Letter to Runkel, 25 IDELR 387 (OCR 1996)


DISCIPLINE OF 504 STUDENTS

Is not addressed in Section 504 or the federal regulations.

Addressed solely in informal federal guidance by OCR and/or the courts.

OCR interpretation based primarily on regulations requiring FAPE and reevaluation prior to a significant change of placement.

Under OCR policy, any suspension, exclusion, or expulsion exceeding 10 days or any series of shorter suspensions or exclusions that the aggregate totals more than 10 days and creates a pattern of exclusion constitutes a significant change of placement that triggers the reevaluation requirement.

Mickes O'Toole, LLC

20



Disciplinary significant changes in placement: The permanent exclusion of a student. Exclusion for more than 10 consecutive days. A series of suspensions that are each 10 days or fewer in

duration that create a pattern of exclusion.OCR Memorandum Re: Discipline of Students with Disabilities (April 1991) See also Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools (OCR 2016).


IN-SCHOOL SUSPENSIONS

When deciding whether ISS constitutes a significant change in placement, OCR considers whether the ISS results in a change of the student’s educational program. For purposes of 504, ISS does not constitute a significant change in placement where the nature and quality of education services provided during ISS are comparable to those provided prior to ISS.

Chester County (TN) Sch. Dist., 17 IDELR 301 (OCR 1990)



Before implementing a suspension that constitutes a significant change in placement of a student with a disability, the district must conduct a reevaluation. OCR Staff Memorandum, 16 IDELR 491 (OCR 1989)

Mickes O'Toole, LLC

21


MANIFESTATION DETERMINATION REVIEW

As step one in the reevaluation, the recipient must determine, using appropriate evaluation procedures consistent with the 504 regulations, whether the misconduct in question was caused by the student’s disability.


MANIFESTATION DETERMINATION REVIEW

The manifestation determination review may be made by the same group of people who make placement decisions pursuant to the 504 regulations.

The group must have available to it information that competent professionals would require, such as psychological evaluation data related to behavior, and that information must be recent enough to afford an understanding of the child’s current behavior.


PLACEMENT AFTER SUSPENSION

Following the manifestation determination review: If behavior was related: Generally, a student may not be

subjected to a significant change in placement as a disciplinary measure for behavior that is a manifestation of a disability. OCR Staff Memorandum, 16 IDELR 491 (OCR 1989); see also

Greenville (TX) Indep. Sch. Dist., 113 LRP 27897 (OCR 04/11/13)

Mickes O'Toole, LLC

22


PLACEMENT AFTER SUSPENSION

Following the manifestation determination review:

If behavior was unrelated: The district may discipline thestudent as it does the general education population,including suspending the student for more than 10consecutive school days.*

* If state law mandates the provision of continued servicesto properly expelled students, then such services must beoffered to both students with disabilities and nondisabledstudents alike.


BOSTON (MA) PUB. SCHS.53 IDELR 199 (OCR 2009)The school told a mom to pick up her son who expressed suicidal ideation and to have him psychologically evaluated before he could return to school.

The district had a policy that students returning from “emergency treatment for suicide intervention must bring a letter from an appropriate medical/mental health provider.”


BOSTON (MA) PUB. SCHS.53 IDELR 199 (OCR 2009)OCR concluded: The student was excluded from school based on his failure to

obtain a medical clearance with regard to a suicide risk thatreasonably could have been related to his disability.

The student’s exclusion from school for 17 days constituted asignificant change in placement.

When a school takes action with respect to a significantchange in placement, the district must conduct an evaluationof the student. 34 C.F.R. § 104.35

Mickes O'Toole, LLC

23


BEST PRACTICES

Review Section 504 forms and procedures

Train!

Consider continuum of placements

Review supplementary aids and services

Follow disciplinary procedures

Review to ensure nondiscriminatory practices and policies

QUESTIONS?Betsey A. Helfrich, Esq.Mickes O’Toole, LLC12444 Powerscourt Dr., Suite 400St. Louis, Missouri 63131Telephone: (314) [email protected] 68

Mickes O'Toole, LLC