The 411 on 504

1. The 411 on 504 Karen Haase Harding & Shultz (402) 434-3000 khaase@hslegalfirm.com H & S School Law @KarenHaase

2. Emerging Trend :Cases re Staff Members • Ridley Sch. Dist. v. M.R.(E.D. Pa. 2011) • T.W. v. Sch. Bd. (11th Cir. (Fla.) 2010) • Reinhardt v. Albuquerque Pub. Sch. Bd., (10thCir. (N.M.) 2010)

3. Primary Differences • Definition of disability is unique to each statute • No funding under 504 • 504 encompasses • Students • Employees • Patrons

4. Similarities • School districts must evaluate and determine eligibility • Both require • transportation, • accommodation/ modification • related services • LRE requirement

5. When is a district required to make a 504 referral? • When district believes that the student has a physical or mental impairment that substantially limits one or more major life activities AND • Student is in need of either regular ed with supplementary services or special ed. and related services Letter to Mentink, 19 IDELR 1127 (OCR 1993)

6. When is a district required to make a 504 referral? • When district believes that the student has a physical or mental impairment that substantially limits one or more major life activities AND • Student is in need of either regular ed with supplementary services or special ed. and related services Letter to Mentink, 19 IDELR 1127 (OCR 1993)

7. When is a district required to make a 504 referral? • When district believes that the student has a physical or mental impairment that substantially limits one or more major life activities AND • Student is in need of either regular ed with supplementary services or special ed. and related services Letter to Mentink, 19 IDELR 1127 (OCR 1993)

8. What constitutes a “substantial limitation?” • 504 regs do not define: “The Department does not believe that a definition of this term is possible at this time.” Appendix A, p. 419. • Phrase is to be defined by local education agency Letter to McKethan, 23 IDELR 504 (OCR 1994).

9. What constitutes a “substantial limitation?” • Congress: a major life activity is substantially limited when “the individual's important life activities are restricted as to the conditions, manner or duration under which they can be performed in comparison to most people.” [House Report No. 101-485(II) p. 52.].

10. “Disability” as Defined by Section 504 A person has a disability under Section 504 if he or she has a mental or physical impairment, has a record of such impairment, or is regarded as having such an impairment which substantially limits one or more major activities.

11. Why was Section 504 Changed? • Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) • The ADA Amendments Act of 2008 increased the number of individuals who qualify for accommodation under both the Americans With Disabilities Act and Section 504 of the Rehabilitation Act of 1973.

12. What are the Major Changes? • First, the definition of “major life activity” has expanded • Now include but are not limited to: Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

13. What are the Major Changes? • Second, interpretation of “substantially limits” has been changed • Must evaluate impairment that is episodic or in remission in active state • Must not consider mitigating measures

14. Examples of Episodic Impairments • Asthma • Chron’s Disease • IBS • Any other disease that can “come and go” or has good and bad days

15. A student may be eligible under Section 504 even if the student’s disability or condition is controlled or mitigated, whether by medication, technology, etc. This means you may be evaluating a hypothetical student Mitigating Measures Don’t Count

16. Examples of Mitigating Measures Medication Medical supplies, equipment, appliances Low-vision devices (NOT ordinary eyeglasses or contacts) Prosthetics Hearing aids/cochlear implants Learned behavioral or adaptive neurological modifications Reasonable accommodations or other auxiliary aids or services

17. What about Temporary Impairments? A “transitory impairment” is defined as an impairment with an actual or expected duration of six months or less. “Any impairment the duration of which is less than six months would not constitute a disability.” James A. Garfield (OH) Local School Dist., 52 IDELR 142 (OCR Feb. 19, 2009).

18. What if the major life activity impaired is not learning? • The child may still need a 504 plan • The focus is on the effect on the student, not the type of disability • “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.” Letter to McKethan, 23 IDELR 504 (OCR 1994)

19. Yes Each district is responsible for determining for itself what the phrase “substantially limits” means Letter to McKethan, 23 IDELR 504 (OCR 1994) Is it possible for a student to be 504 in one district and not eligible in another?

20. No Remember: disability education law is about PROCESS not RESULTS Example: Temple (TX) ISD, 25 IDELR 232 (OCR 1996) Can we just provide modifications without creating a 504 plan?

21. Yes If districts suspects absences are due to a disability, the district should refer and evaluate Note that just because a student has a disability does not mean all the absences are disability-related Can a student’s absences trigger a 504 referral and evaluation?

22. The Nuts and Bolts of the 504 Process Referral Consent Eligibility Determination 504 Plan Discipline Due Process Rights

23. No When a child qualifies under IDEA, district satisfies the provisions of 504 through the IEP Letter to McKethan, 25 IDELR 295, 296 (OCR 1996) Lyons v. Smith 20 IDELR 164, 167 n. 11 (DCDC 1993) Can a Parent Demand a 504 Plan instead of an IEP?

24. Special Problems with Some Health Impairments • Diabetes • Asthma • Peanut and other allergies