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Leveling the Playing Field. Brenda Van Gorder October 10, 2011. Brenda’s Disclaimer…. The language of the Americans With Disabilities Act and the recent amendments of the act use outdated language, and are nearly void of any person first language.
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Leveling the Playing Field Brenda Van Gorder October 10, 2011
Brenda’s Disclaimer… • The language of the Americans With Disabilities Act and the recent amendments of the act use outdated language, and are nearly void of any person first language. • I will change the language to be more appropriate unless I am quoting the act specifically.
Purpose of Section 504 • Section 504 is “designed to eliminate discrimination on the basis of disability in any program or activity receiving federal financial assistance” (34CFR §104.1)
Anti-Discrimination Act Four subparts – • A – general provisions, including definitions • B – employment practices • C – facilities/accessibility • D – Preschool, Elementary and Secondary Education regulations
Big Picture • §504 is not special education…it is not the “JV team” for the IDEA “Varsity team” • §504 is an unfunded federal mandate…IDEA funds must not be used to fund 504 plans/services • Special education staff are not to be the service providers of §504 plans
What is Congressional Intent? • Congress appears to want courts looking less at eligibility and focusing more intently on whether reasonable accommodations are provided by covered entities. (ADA Amendments Act of 2008) • The definition of disability in this Act shall be construed in favor of broad coverage of individuals under this Act, to the maximum extent permitted by the terms of this Act.
Enforcement and Authority • The Office of Civil Rights (OCR) is the monitoring, investigation and enforcement arm of the U.S. Department of Education. • In March of 2010, OCR announced plans to “beef up the enforcement of civil rights in schools.”
What Does OCR Investigate? • The short answer….ANYTHING they want! • Generally they focus on procedural compliance, and not the §504 team’s placement decision…unless: • there is suspected wrongful determination that a student is or is not disabled • there is a suspected lack of implementation of the plan.
Key Words in Section 504 When you see this symbol, a definition of a “key word” from Section 504 is present
Child Find Obligation • School districts must locate and evaluate every qualified disabled person residing in the district’s jurisdiction (34 CFR §104.32(a)) • §504 requires school districts to refer a student for evaluation…if the student, because of disability, needs or is believed to need such services (OCR FAQ #31)
Clarification for Schools • Schools are not required to develop a §504 plan for students who either “has a record of disability” or is “regarded as disabled” • The student must demonstrate that he has an actual impairment that substantially limits a major life activity (Q & A Doc #37 - March 27. 2009)
Procedural Safeguards • Should we use the same Procedural Safeguards as IDEA? • NO WAY! The Devil is in the Details… • We will be giving more rights than are outlined in the regulations. • While many of the procedures are substantially the same, there are subtle differences that if not followed could obligate the school/district to a higher standard than required.
Parents – to include or not? • Although it is not required to have parent participation in determining eligibility or in developing the plan… It is not advised that you exclude the parents…Include them, or at the very least document district efforts to provide parents opportunities to participate
Evaluation • Don’t rely solely on parent provided outside evaluation reports (but we must document that we have considered the information) • Parent refusal of an IDEA evaluation is essentially a rejection of a §504 evaluation. • Determination of substantial limitation is made on a student-by-student basis • Parent consent is required for initial evaluations
Consider Evaluation When… • Student does not respond to tiered interventions • There is a request for an evaluation or for a §504 plan • Suspension or expulsion is being considered • Academic performance is lower than expected • Chronic absenteeism • Student is evaluated and is not eligible for IDEA • Student exhibits ongoing medical problem(s) • Student enrolls with a §504 plan from another district. • An impairment of any kind is suspected • Student was formerly found not eligible due to mitigating measures.
OCR has ruled that the §504 child find obligation does not mirror that of IDEA, in that IDEA child find obligation lies with the district in which the student attends (including the district in which a private school is located)
Eligibility under § 504 • There are no impairments that are automatic qualifiers for eligibility. • The impairment itself is not a disability. • The impairment must substantially limit one or more major life activities or order to be considered a disability under §504 • Students may have a disability that in no way affects their ability to learn, yet they may need extra help of some kind from the system to access learning.
Eligibility for Current Drug &/or Alcohol Users • Current Illegal Drug Users – generally are excluded from protection under §504. There are some exceptions for persons in rehabilitation programs who are no longer engaging in the illegal use of drugs. • Current Users of Alcohol – definition does not exclude users – However, §504 allows schools to take disciplinary action against students with disabilities use drugs or alcohol to the same extent as students without disabilities
Be Careful When Applying the Eligibility Standards • OCR has held that unduly restrictive definition of major life activities and failure to evaluate the student in a timely manner may deny the students FAPE
Consider Mitigating Measures • Since January 2009, school districts must not consider the ameliorating (improve, make better) effects of any mitigating measures that student is using. • Screen-out or filter-out the positive impact of the mitigating measures • Congress didn’t define, but rather gave us a non-exhaustive list of mitigating measures…
medication, medical supplies, equipment or appliances; low vision devices (which does not include ordinary eyeglasses or contact lenses); prosthetics (including limbs and devises); hearing aids and cochlear implants or other implantable hearing devises; mobility devices; oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; and learned behavioral or adaptive neurological modifications.
The only exception to the list… • Congress created on exception to the mitigating measures analysis. • The effects of ordinary eyeglasses or contact lenses shall be considered in determining if an impairment substantially limits a major life activity.
What about Temporary Impairments? • Temporary impairments do not constitute a disability for purposes of §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 • Congress clarified the temporary impairment is only considered beyond transitory if the actual or expected duration is 6 months or longer
Episodic or in Remission • Look at student data over a range of time not just during the moment of §504 evaluation. • Some physical or mental impairments ebb and flow in their severity (seasonal allergies, asthma, migraines, cystic fibrosis are examples) • §504 plans need not provide constant services – the team would need to articulate what factors trigger the plan’s provisions
Under ADAAA, in impairment “in remission is a disability if it would substantially limit a major life activity when active”
Developing the Plan • Make sure the services, accommodations or adjustments are supported by evaluation data • Write clear and specific accommodations • Leave no room for interpretation • Avoid open ended accommodations • Avoid giving teachers discretion to implement • Accommodations for state assessment must be used regularly in instruction
Ensure teacher understands the accommodations • Clarify terminology (e.g. preferential seating, extended time etc.) • Provide training if necessary • Develop a teacher accountability protocol (way for teachers to be accountable for implementing the plan)
FAPE v. Reasonable Accommodations • “reasonable accommodations” is a term used within the employment portion of the law. • FAPE is the term used within the education portion of the law. • Development and implementation of a plan is a way to offer and provide FAPE
Lack of $ is not an excuse for not implementing a plan • Monitor success of the plan..or lack there of • Make sure teachers have a copy of the plan and also know how to implement the plan • Make sure the plan is individualized for the student…using check lists may look like a “buffet line”…this is not a smorgasbord of choices.
If a student on an IEP also needs an accommodation, are we required to develop a separate §504 plan? • No…The IEP is one means of satisfying the §504 requirements. The required accommodations needed for the student to receive FAPE should be on the IEP
Once the Student is in…now what? • How often the §504 plan be reviewed? • Periodic re-evaluation is required • Can use the IDEA timeline of “at least every 3 years” but not more than once per year • Don’t use old forms…make sure you are using the districts most current forms which reflect the updated requirements.
Non-educational Activities • Students only need to meet the “individual with a disability” definition to access non-educational activities – evaluation and placement regs don’t apply • Students with disabilities are entitled to equal access to participate in all activities without discrimination
District is required to 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 them” • Non-academic services/activities can be different and should be designated differently on the plan from the educationally required services
Services and activities may include: • Counseling services • Physical recreational athletics (intramurals) • Transportation • Health services • Recreational activities • Special interest groups or school sponsored clubs • Referrals to agencies providing services to handicapped persons
What about Revocation of Services? • When parents revoke consent for special education under IDEA is there an obligation to develop a §504 plan? • Most guidance and court cases have agreed that if a parent revokes consent for IDEA services, they are also revoking services under §504 • A §504 plan may not be used to replace an IEP • Caution…Revocation does not mean that a school has no obligation to the student.
Hottest Litigated Area Right Now • Harassment & Bullying • Intimidation or abusive behavior toward a student. It may include such things as verbal acts, name calling, and graphic and written statements that result in a hostile learning environment; when based on disability, such harassment is subjected to an investigation by OCR • A school must actively work to prevent, and intervene if such harassment or bullying takes place. Document your efforts.
