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Section 504 Myth Vs. Reality

Section 504 Myth Vs. Reality. Chuck Kirtley. Assistant Director, Special Services. Mission and Vision. Mission : Dorchester School District Two leading the way, every student, every day, through relationships, rigor, and relevance.

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Section 504 Myth Vs. Reality

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  1. Section 504 Myth Vs. Reality Chuck Kirtley Assistant Director, Special Services

  2. Mission and Vision Mission: Dorchester School District Two leading the way, every student, every day, through relationships, rigor, and relevance. Vision: Dorchester School District Two desires to be recognized as a “World Class” school district, expecting each student to achieve at his/her optimum level in all areas, and providing all members of our district family with an environment that permits them to do their personal best.

  3. Section 504 Myth Vs. Reality • In this session, we will examine common myths related to 504, ranging from “eligibility” to procedural safeguards to discipline and contrast that information with the realities found in the law and OCR guidance.

  4. Discussion of Section 504 Issues and How They Affect Students and Adults in our Schools, on the School Bus, and during Extra-Curricular Activities • Examination of Relevant Statutes/Case Law/Best Practices • Discussion of Common Myths Regarding Section 504 • Discussion of the 504 Process and OCR’s Authority • Examination and Comparison of Section 504-ADA-IDEA • Solicit Feedback from Participants To Prepare Additional Staff Development

  5. What to do if you get Too Excited about the topic Being Discussed • Don’t Panic, It’s Natural!

  6. Just remember to breathe naturally and slowly…it will be ok 

  7. What are some Key Section 504 Issues we face at our different grade levels? • Allergies • Access to the curriculum • Access to the building/bus • Behavior Issues due to ADHD • What makes a student eligible for a 504 plan? • What related services are allowed for a student with a 504 plan? • Medication issues • Who has to be a part of a 504 team? • What is the 504 process and how does it compare to the IEP process? • Others?

  8. What is a Myth? • Myth – a widely held but false idea or belief. Common Section 504 Myths • Section 504, like the IDEA, provides federal funding and state education agency supervision/support. • Eligibility under Section 504 requires, among other things, an adverse effect on educational performance—i.e., educational need. • For Section 504 eligibility based on suspected ADHD, the parents must provide a medical diagnosis at their own expense. • Section 504 only provides for accommodations, but not special education or related services. • The Section 504 regulations require districts to provide eligible students with a "504 Plan.“ • Others – (Discussion) – Why do myths about Section 504 persist?

  9. How do myths get started?

  10. Myth Replaced By Fact • Section 504 is a federal law designed to protect the rights of individuals with disabilities in programs and activities that receive Federal financial assistance from the U.S. Department of Education (ED). Section 504 provides: "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 . . . .” • http://www2.ed.gov/about/offices/list/ocr/504faq.html

  11. Denied Benefits or Discriminated against – what does that mean? • Three Federal laws have had a significant impact in the ways in which school districts address the rights and needs of individuals with disabilities. They are Section 504 of the Vocational Rehabilitation Act of 1973, the Individuals with Disabilities Education Act (IDEA), and the Americans with Disabilities Act (ADA). • All these laws have had “relationships” with one another. • They are now married!! Congratulations to everyone affected!! 

  12. It was a lovely ceremony and as Audrey Hepburn alluded to, it seems that the ADA, 504 and IDEA are VERY MARRIED!!

  13. Substantially limits (old Term) • Each law separately offers equal opportunities and access for persons with disabilities. Section 504 and the ADA prohibit discrimination against students with disabilities enrolled in public schools. Congress amended the ADA, effective January 1, 2009, with the ADA Amendments Act of 2008. • The ADAAA prohibits consideration of the ameliorative effects of mitigating measures, (not including ordinary eyeglasses or contact lenses) in determining if a person qualifies as an individual with a disability. The ADAAA rejected the U.S. Supreme Court’s strict interpretation of the term “substantially limits,” and directed the Equal Employment Opportunity Commission (EEOC) to revise its current definition of “substantially limits” to be consistent with the ADAAA.

  14. What does the “relationship” look like?

  15. We have to view section 504 differently than we have in the past • Some issues are “common” in schools but we must not forget the other laws and the possibility of a “surprise” issue that we have not “considered”

  16. Most Common 504 Issue? • Some say ADHD

  17. Things have changed!!

  18. Please Pay Attention!! • Why? I thought section 504 was simple. You just give them a plan, some extra time for tests, maybe an extra set of books and we’re good to go, right?? • But, sometimes people just don’t get it, no matter how much we try and communicate the message.

  19. What does this map contain? • Circuit Courts In the United States – Ours is the 4th Circuit

  20. Recent 504 court case • Bakersfield City (CA) Sch. Dist., 50 IDELR 169 (OCR 2008). Without deciding whether a student’s dog qualified as a “service animal,” OCR found that a California district violated Title II and Section 504 by excluding the dog from school because the district did not follow proper proceduresfor reviewing the dog’s training, function, or impact on the student’s education. For instance, the district did not conduct a specific inquiryas to whether the dog was an appropriately trained service animal or whether its function addressed the student’s disability-related needs. Instead, the district unilaterally determined that the dog posed a health and safety risk to students and staff. In addition, the district failed to conduct a hearing about the dog’s status as a service animal.

  21. Unilateral decisions are bad!!

  22. Every student is an individual • Even if the dog did not qualify as a service animal, the district should have considered whether the dog’s presence was necessary for the student to receive FAPE. Of note was the fact that the student’s behavior improved significantly when he brought his dog to class. Moreover, there was no evidence that staff or other students complained about the dog’s presence. By failing to consider whether the dog was a necessary aid or service under the IDEA, the district deprived the student of his procedural safeguards.

  23. What does Section 504 Say about making decisions for our kids? • The Section 504 regulatory provision at 34 C.F.R.104.35 (c) (3) requires that school districts ensure that the determination that a student is eligible for special education and/or related aids and services be made by a group of persons, including persons knowledgeable about the meaning of the evaluation data and knowledgeable about the placement options. • If a parent disagrees with the determination, he or she may request a due process hearing. • Section 504 requires districts to provide notice to parents explaining any evaluation and placement decisions affecting their children and explaining the parents' right to review educational records and appeal any decision regarding evaluation and placement through an impartial hearing.

  24. What is the process?

  25. Each School has a section 504 Coordinator, but….the reasons myths still persists are various… • Training is held each year • Information is available monthly through a Section 504 Compliance Notes format from our office • However, Section 504 in general, in K-12 schools is not viewed by parents, courts, or OCR as a STAND-ALONE regulation • Often times, our students and educator’s activity in school and at times, out of school result in needed attention to: IDEA, Section 504, Various “Title” legislations, all the different “sub-parts” of the legislations mentioned, and more

  26. The only thing that is constant is change • As 2014 is just a day away, new laws have been crafted for Californians to adhere to. Here are just a few blessed laws and regulations that will come into effect in 2014: • Transgender Rights: Students in grades K-12 who identify as transgender will be able to use the school bathrooms of their choosing as long as it is “consistent with their gender identity,” even if it is different than their gender at birth. Students will also be able to select whether they want to be on the boys team or the girls team based on their “gender identity.” Source: http://www.breitbart.com/Big-Government/2013/12/31/California-New-Laws-for-2014-Effect-Transgender-Rights-to-DUI

  27. Relevant Case Law • Julie J. Weatherly, Esq. , JJWEsq@aol.com • Website: www.specialresolutions.com • Since the late 1980’s/early ‘90’s, there has been an apparent misunderstanding on the part of public school educators (and others) with respect to the educational provisions of Section 504 of the Rehabilitation Act of 1973 (“Section 504”), particularly provisions related to “eligibility.” • http://www2.ed.gov/about/offices/list/ocr/504faq.html (A wealth of information straight from the source, OCR)

  28. Where do I go to get informed? http://www.wrightslaw.com/info/sec504.index.htm FAQs, Cases, Articles, Accommodations/Modifications/News – very thorough site – searchable http://www.wrightslaw.com/info/sec504.summ.rights.htm Key differences between IDEA, the ADA, and section 504 – links contained within this site lead to other information as applicable to your search criteria http://www2.ed.gov/about/offices/list/ocr/504faq.html Main OCR Site

  29. What about discipline? • Does a student with a 504 plan have to have a manifestation meeting before they are considered for expulsion? • Aschool cannot discipline a student with a disability for behavior that is a manifestation of his disability …The school is required to conduct a manifestation determination by a Section 504 Team. Springfield School District #186 55 IDELR 206 (United States Department of Education, Office for Civil Rights (2010)

  30. IDEA and 504 Relationship – Discipline in After-School Care • Although a kindergartner's behavioral problems posed a safety risk to himself and other children, the school district was found to have violated Section 504 when it dismissed him from a district sponsored after school-care program. The child's mother informed the program staff that she was trying to hire a one-to-one aide to accompany her son in the program. When the parent failed to find an aide, the district dismissed the child from the program. OCR criticized the district's view that parents were responsible for obtaining and funding accommodations not identified in a child's IEP. Hayward, California Unified School District 50 IDELR 289 (United States Department of Education, Office for Civil Rights (2008)

  31. All this makes me want to….

  32. What about procedural safeguards for parents?

  33. How do we keep ourselves out of trouble?

  34. Focus on “Individual Student needs” What is the “end in mind” for every individual student?

  35. Phrases to Avoid at All Times in 504 meetings • “We don’t do that here” • “That is not allowed by our budget” • “My personal child has ADHD and he doesn’t act like that” • “Your child is too smart to have a 504 plan” • “They just need to work harder; they’re too lazy” • “All the other kids with 504s don’t get that” • “We have NEVER done that and I don’t think we will be able to start today” • “We are trying to teach them how to be responsible”

  36. Sometimes it “IS” what you say and not how you say it! • Many parent complaints, hard feelings and misunderstandings come from the parent getting the impression that they are not being heard or their child’s individual needs are not being met appropriately • Goal – Try not to have a parent feel like this tiger looks after they leave a meeting

  37. A “team” approach supports success!

  38. Practical Guidance • Keep an open line of communication with parents • Try and understand the unique needs and challenges of parents and students • Don’t “over-promise” • Keep thorough documentation • Collaborate with team members and your school-based Section 504 Coordinator • Listen for the REAL issues • Follow procedure, follow procedure, follow procedure • Focus on the student’s unique, individual needs

  39. Some Myths vs. realities • MYTH #1: “She might be in a wheelchair and have a Health Plan to address her diabetes, but she’s not disabled under Section 504 because she’s making all A’s. The major life activity of learning is not limited!” • REALITY: School personnel must understand that learning is not the only major life activity to consider when determining whether a student has a disability. For instance, a student in a wheelchair whose only limited major life activity is walking is still a student with a disability and is protected against discrimination on the basis of that disability. Same goes for the student on a Health Care Plan who is making all A’s; that student still may have a condition that constitutes a disability under Section 504.

  40. MYTH #2“So, now that we’ve decided that this student is disabled because of his ADHD, we need to put him on a 504 plan.” • REALITY: Not necessarily! A child can be found by the 504 team to be disabled but not in need of a 504 plan. See, in general, Dear Colleague Letter, 58 IDELR 79 (OCR 2012). Needless to say, the ADAAA’s provisions related to “mitigating measures” have led to some interesting discussions (and a lot of confusion) about how 504 teams are to determine “eligibility.” (It is for that reason that I do not use the term “eligibility” anymore when talking about Section 504). While the ameliorative effects of mitigating measures cannot be considered in making the disability determination, such effects can be considered in determining whether a student needs a 504 plan. As a result, the 504 team could find that the student does not need a 504 plan because the student’s educational needs are met as adequately as the needs of his/her nondisabled peers. However, the student would still be considered disabled and could not be discriminated against based upon the disability. At issue here – “category of person discriminated against”

  41. MYTH #3: “A student whose doctor has diagnosed ADHD is automatically covered by Section 504 because the parents now regard the student as disabled.” • REALITY: The “record of” and “regarded as” portions of the definition are not relevant to 504 team determinations regarding the need for a Section 504 plan. In addition, a medical diagnosis, in of itself, does not mean a student has a disability under Section 504. Rather, the school is entitled to propose and conduct its own evaluations to determine whether an actual existing disability exists. Where there are questions, the team should request additional evaluations by school staff or other professionals or, where appropriate, an outside independent professional or physician. Medical documentation may be required by the team if it is needed to determine whether a disability exists, but is not always necessary.

  42. MYTH #4: “A student in special education is not covered by 504.” • REALITY: All students who have been identified as disabled under the IDEA are also disabled under Section 504 and cannot be discriminated against on the basis of their disability. In addition, the IEPs for these students are their Section 504 plans, and the provision of services received under the IDEA is the way to meet the educational obligations under Section 504. However, the IDEA provides much more in terms of the provision of FAPE and contains much more extensive and specific protections than 504 does. Key – “…and cannot be discriminated against…” What is a scenario in which that would apply in our schools today?

  43. A word about related services • The questions always arises, “Can they get that with just a 504 plan?” Answer: • Section 504 requires schools to provide to students with disabilities appropriate educational services designed to meet the individual needs of such students to the same extent as the needs of students without disabilities are met. An appropriate education for a student with a disability under Section 504 could consist of education in regular classrooms, education in regular classes with supplementary services, and/or special education and related services.

  44. Importance of staying informed

  45. Being informed and not taking action is a mistake

  46. Resources Section 504 Emerging Case Law (with links to primary sources) http://www.ksde.org/Portals/0/SES/legal/conf11/05a-Zirkel-504NewDevelopments.pdf Pregnancy and Parenthood in School (emerging issue) http://www2.ed.gov/about/offices/list/ocr/docs/pregnancy.html Students with Disabilities and Athletics/Extra-Curricular Activities http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201301-504.html Section 504 OCR Resolution Examples http://www2.ed.gov/about/offices/list/ocr/docs/investigations/index.html#section504rev

  47. In our ever-changing educational world, let’s keep focused on what’s important

  48. Contact Information Chuck Kirtley Assistant Director, Special Services Ckirtley@dorchester2.k12.sc.us (843) 875-4161

  49. Session EvaluationParticipants are asked to complete a session evaluation for each session attended. Credit (attendance, renewal, and/or technology) will be added following evaluation completion. For each question, use 1=Strongly Disagree, 2=Disagree, 3=Neither Agree nor Disagree, 4=Agree, 5=Strongly Agree. Your responses will assist us in planning future professional development in Dorchester School District Two. • The instructor was well prepared for the workshop. • The materials for the workshop were appropriate. • The concepts presented were appropriate to my job. • I will benefit from attending this session. • I would recommend this training to others.

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