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Section 504… Special Education… And You!

Section 504… Special Education… And You!. Wesley E. Johnson, J.D. Escamilla, Poneck & Cruz, LLP. Section 504 of the Rehabilitation Act of 1973 (PL 93-112, September 26, 1973).

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Section 504… Special Education… And You!

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  1. Section 504…Special Education…And You! Wesley E. Johnson, J.D. Escamilla, Poneck & Cruz, LLP

  2. Section 504 of the Rehabilitation Act of 1973 (PL 93-112, September 26, 1973) Originally, Section 504 of the Rehabilitation Act was intended to eliminate discrimination against people with disabilities in programs or activities receiving Federal funding. Precursor to the more well-known Americans with Disabilities Act that was passed in 1990 that applies to more Schools = recipients of federal funds & cannot discriminate against those otherwise qualified to attend but inhibited from participating to same extent as nondisabled because of disability Otherwise qualified to attend = age, residency requirements

  3. Section 504 Evaluation Requirements • Be based on information from a variety of sources, • -- Document and consider all available pertinent information related to the suspected physical or mental impairment, which may be substantially limiting major life activity. • -- Be conducted by a group of knowledgeable people • The child, • The suspected disabling condition, • Evaluative procedures, • The meaning of evaluative data, and • Accommodation/placement options • -- Use appropriate materials, tests or evaluation procedures

  4. Section 504 & Special Education -- • Eligibility determination for Special education = specific disability set forth in the law + need for special education and related services • Both – Free appropriate public education • Through the provision of special education and related services… • Nondiscrimination • Least restrictive environment • Manifestation Determination prior to change of placement

  5. Changes to the Law Have Led to Changes in Section 504 Eligibility Determinations…

  6. Evaluation / Eligibility: • Otherwise Qualified to attend school in the District • Physical or mental impairment • That substantially limits • One or more major life activity; • Has a record of such an impairment; or • Is regarded as having such an impairment.

  7. Regarded As Disabled or Having a Record Of an Impairment OCR has specifically stated….students not entitled to reasonable accommodations or modifications to polices, practices, and procedures simply because they have a record of a disability or are regarded as having an impairment. NO FAPE for students who fall into this category…. Still eligible for Section 504 protection against discrimination Still Eligible for Section 504!

  8. ADA Amendment Act of 2008 passed in September became effective January 1, 2009. Significantly restricts -- Materially restricts Expanded definition of “major life activities” Now are prohibited from considering the mitigating effects of mitigating measures (except eyeglasses and contacts) Consider whether major life activity is affected when the episodic condition is active Will see more referrals & more students qualifying for protection Students who are regarded as or have a record of being disabled must not be discriminated against

  9. “Major Life Activities” – Seeing Hearing Speaking Walking Breathing Performing Manual Tasks Learning Caring for Oneself Working Before ADAA:

  10. ADAA Adds these to the Statutory List of Major Life Activities: Bending Lifting Standing Eating Sleeping Reading Concentrating Thinking Communicating Operation of major bodily functions…

  11. Operation of major bodily functions: • Including but not limited to… • Functions of the immune system • Normal cell growth • Digestive, Bowel, Bladder • Neurological, Brain • Respiratory, Circulatory, Endocrine, and Reproductive functions

  12. No “substantial limitation” Test – • Consider the Following: • Nature and Severity of the Impairment • Duration or Expected Duration of the Impairment, AND • Permanent, long-term impact or expected impact of the impairment • Decision must be made on a case by case basis!!

  13. What Does This Mean for Eligibility? • Students with more common impairments will qualify • BUT….having an impairment does not = automatically qualifying for §504 eligibility • Minor or moderate limitations are not “substantially limiting” • Medical conditions that could substantially limit major life activities: HIV, Crohn’s disease, asthma, allergies, diabetes, ADD/ADHD, hepatitis, mononucelosis

  14. What If “Learning” is not Substantially Limited by the Impairment? • Look to see if any major life activity is substantially limited….not just learning • North Royalton City Schl District, 52 IDELR 203 (OCR 2009) • Student with anxiety issues and severe nut allergy had a health plan and doing well academically • Found ineligible for §504 • “Nothing in Section 504, the ADA or ADAAA limits eligibility to those who suffer academically”

  15. ADA Amendments (ADAA) Made Other Changes to ADA: Mitigating Measures not to be considered; Episodic conditions or conditions in remission still disabling if disabling when active; Conditions of short duration not a disability but previously we had no legal definition; Now defined – Minor and Transitory Impairments = those with actual or expected duration of 6 months or less.

  16. We Now Consider the Ameliorative Effects of Mitigating Measures The determination of whether an impairment substantially limits a major life activity under ADAA: • Shall be made without consideration of ameliorative effects of mitigating measures. • One Exception Built into the Law… • Ameliorative effects of ordinary eyeglasses or contact lenses can still be considered • Definition– Lenses that are intended to fully correct visual acuity or eliminate refractive error

  17. No Longer Consider Mitigating Measures When Determining Section 504 Eligibility New Rule: Do not consider mitigating measures when making Section 504 eligibility decisions Student taking medicine Diabetic Students Students with Asthma Students with Severe Allergies

  18. Examples of Mitigating Measures Listed in ADAA • Medications or Medical supplies • Equipment or appliances • Low vision devices (exception) • Prosthetics including limbs & devices • Hearing aids, cochlear implants or other implantable devices • Mobility Devices • Oxygen therapy equipment & supplies • Assistive technology • Reasonable accommodations already provided • Auxiliary aids or services* • Learned behavior or adaptive neurological modifications

  19. Definition of ‘Auxiliary Aids and Services’: Qualified interpreters; Qualified readers, taped texts; Other effective methods of making aurally or visually delivered materials available to individuals with hearing or visual impairments; Acquisition or modification of equipment or devices; Other similar services & actions.

  20. What About Impairments That Are Episodic or in Remission? • Episodic or in remission still disabling if disabling when active • Previously, many claims of disability were rejected in cases where the problem only occurred sporadically: • Epilepsy • Lupus • Allergies

  21. When Mitigating Measures/Episodic Impairments Make Accommodation Plans Seem Obsolete…Plans Can Include… • Communication between parent/school • Monitoring for changes in academics/behavior • Depending on situation – plan for what-If • Not the same as playing psychic – get information and use it to plan ahead to prepare for seizure, episode, etc. • Episodic situations may only need accommodations when active • Mitigating Measures already used successfully • This student might need more detailed Section 504 plan later -- • Health plan can ultimately be the Section 504 plan

  22. Extracurricular… • Meaningful and equal access to non-educational programs and extracurricular activities must be offered • Necessary accommodations to afterschool programs unless…Undue burden or fundamental alteration of the program will occur. • Any outside organizations – co-curricular, etc. that relate to career/tech program? • Section 504 nondiscrimination requirements will also apply to these activities

  23. Tip #1 Know who the District’s Section 504 Coordinator Is! • Know who the District’s Section 504 Coordinator is! • Parents have a right to grieve and/or file due process regarding decisions related to Section 504 • Who is the on-campus administrator go-to person regarding IDEA/Section 504? • Section 504 Campus Coordinator? Principal? • Special Education Director? • Teachers do not need to be in charge of the process itself, but should know who to direct the parent to see if they express dissatisfaction with an aspect of student’s education • Teacher should know where to direct their own questions…

  24. Tip #2 Encourage teachers to Be Proactive • Fact that a particular teacher is unaware that a student has an IEP or Section 504 Accommodation Plan will not be a defense for the district • Recommend that Career and Technology Teachers make inquiries as to which students in their class might have any of the following: • Individual Education Plan • Section 504 Accommodation Plan • Individual Health Plan (may or may not be the Section 504 Plan) • Behavior Intervention Plan • Can they articulate how they are following the plan?

  25. Tip #3 Document and Discuss Concerns Regarding a Student’s Difficulties or Inability to Perform Required Tasks • Many Career/Tech classes result in certifications that a student may not ultimately be able to receive due to performance issues and/or passing requirements on certification evaluations, etc. • These should not be a surprise at the end of a class! • Teachers should be able to clearly articulate classroom and certification requirements • Every general education placement is not necessarily appropriate for every student • Understanding the intended purpose of the student’s participation in class is crucial

  26. Tip #4 Comply With Child Find Obligations… • Section 504 states that a district must conduct an evaluation of students "who, because of handicap, need or are believed to need special education and related services." • Similar, but not Identical, to IDEA Child Find efforts • Is there a student in class who struggles? • Health issues keeping them from participating? • Statements made by student or parents? • Contact the Campus or District Section 504 Coordinator if you have concerns.

  27. Tip #5 Eliminate Automatic/Conclusive Responses from Vocabulary • No…..we don’t provide accommodations in this class • Yes – whatever you need/want (promising the moon) • He/she already has a health plan…. • No “academic need” – doing fine in class • What do I know – I’m just the ____________________ teacher. (fill in the blank with the type of class taught) • I promise he/she can stay in this class

  28. Tip #6 Accessibility Issues Should Never Be Reason for Program Unavailability! • Student who is otherwise qualified to participate in program should never be refused because of accessibility issues! • Can the student access a particular area where class is meeting? • Transportation to on-site training? • Behavior issues must be addressed…should not deny opportunity b/c of disability • What about health issues and access…

  29. Tip #7 Do not overlook emerging technology in a particular field as a potential problem area • Accommodations or modifications that permit a disabled student to receive all the educational benefits provided by the technology in an equally effective and equally integrated manner may be required. • June 29, 2010, Dear Colleague Letter , from the Office of Civil Rights • Electronic readers • Kindle DX • Universities and Colleges • Have teachers review the various classroom resources to ensure accessibility and equality

  30. Tip #8 Embrace the Role That the Career/Tech teacher Can Take With Respect to Transition Planning • The IDEA requires IEPs for older students to include a plan for a coordinated set of services designed to move special education students successfully from school to post-school settings. • Guidance & Knowledge regarding various career paths / certifications / field of study / particular disabilities • Invited to participate in an ARD Committee meeting – be prepared to share input with team • Your opinion matters, but ultimately team decides • Observations of student in class can provide necessary information • Understanding the process/steps to certification, etc. is linked to transition planning – must inform parents/ARD C.!

  31. Tip #9 Don’t misunderstand the scope of Section 504 • Protection from discrimination + • Accommodations or other services that might be needed that are necessary to provide an equal opportunity for the student to participate in the general curriculum = FAPE • “Provision of regular or special education and related aids and services that are designed to meet individual educational needs of students with disabilities as adequately as the needs of students without disabilities are met” • Creation of a fair academic setting • Comparable opportunities as those provided to nondisabled peers • Not supposed to provide advantages

  32. Tip #10 Don’t Overlook Other Legal Requirements! • Family Educational Rights and Privacy Act (FERPA) prohibits sharing information from student records unless particular circumstances exist… • Harassment situations…. • Title IX issues…

  33. The End

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