SECTION 504

1. SECTION 504 What’s New? What Stayed the Same? Brenda Van Gorder October 18, 2010

2. Brenda’s Disclaimer • The language contained in the Section 504 regulations and the ADA amendments have not been updated since their original enactment and uses out dated and politically incorrect terminology of “handicapped person” • The language has been left intact to preserve actual federal language

3. Section 504 -Purpose • No otherwise qualified individual with a disability…shall solely by reason of his or her handicap, 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 USC 794: 34 CFR104.4

4. Anti-discrimination Statute Four subparts – • A – general provisions, including definitions • B – employment practices • C – facilities/accessibility • D – Preschool, Elementary and Secondary Education regulations

5. The Big Picture • Section 504 of the Rehabilitation Act of 1973 is enforced by the US Dept of Ed’s Office of Civil Rights • State Dept of Ed’s have no enforcement authority for issues arising under Section 504 • Local districts must adopt a grievance procedure and provide procedural • safeguards

6. Big Picture Cont… • §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

7. Procedural Safeguards • Notice regarding identification evaluation or educational placement • Opportunity to examine relevant records

8. Impartial Hearing: • Opportunity for participation by parents • Representation by legal counsel • A review procedure • Compliance with IDEA procedures is one means of meeting 504 requirement • Caution – IDEA safeguards go beyond 504 requirements

9. Child Find Under §504 • Duty to identify and locate every qualified handicapped person who is not receiving a public education, and; • Notify the handicapped persons and their parents or guardians of the district’s duty under this subpart.

10. Child Find Triggers • Parent requests an eval or 504 plan • Suspension or expulsion is being considered • Academic performance is lower than expected • Student is evaluated and is not IDEA eligible • Student exhibits a chronic medical • problem

11. More Triggers • Student transfer to GSD with a §504 plan from another district • Student is chronically absent due to medical/health issues • Student receives medication during the school day • Student formerly found not eligible due to mitigating measures

12. Non-Disabled § 504 IDEA

13. Who are the §504 Students • Has a physical or mental impairment which substantially limitsone or more major life activities • Has a record of such an impairment • Is regarded as having such an impairment

14. 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

15. Eligibility…and for what? • “an otherwise qualified individual with a disability” is “eligible” to participate in, be provided the benefits of and to be free from discrimination under any program or activity operated by a federal fund recipient, i.e. a school district.

16. “Otherwise Qualified” With respect to public preschool, elementary, secondary, or adult educational services the regulations indicate the person must be: • Of an age during which non-handicapped persons are provided such services;

17. of an age during which it is mandatory under state law to provide such services to handicapped persons; or • to whom a state is required to provide a free appropriate public education under section 612 of the Education of the Handicapped Act (now known as IDEA – ages 3-21)

18. “Physical or Mental Impairment” • The §504 definition is very broad… • Any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or

19. Any mental or psychological disorder, such as mental retardation, organic brain syndrome (old terminology for ADD/ADHD), emotional or mental illness, and specific learning disabilities • Remember these lists are not inclusive or exhaustive

20. “Major Life Activities” • “Functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” • ADA Amendments Act of 2008 (effective Jan 2009) provided additional examples – eating, sleeping, standing, lifting, bending, reading, concentrating, thinking and • communicating.

21. “Substantially Limits” An impairment that substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict the individual from performing a major life activity in order to be considered a disability

22. Effects of Mitigating Measures • OCR has now opined under the ADA amendments that: “school districts may not consider the ameliorative (positive) effects of any mitigating measures that the student is using” Q & A Doc #21 – March 2009

23. “Mitigating Measures” • Non-exhaustive list includes: Medication; medical supplies; equipment or appliances; low-vision devices (not including ordinary eyeglasses or contact lenses); prosthetics; hearing aids and cochlear implants or other implantable hearing devices;

24. Wait, there’s more… • 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

25. Considering eligibility The district can not take the position that the student is not an individual with a disability under §504 because the student has a “correctable” condition or one that can be resolved through the use of mitigating measures

26. Episodic or In Remission • The amendments also added that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active” • May not need a plan right now, but the district is on notice that student may need a plan in the future

27. “Appropriate Education” • The provision of regular or special education and related aids and services that: • Are designed to meet the individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met, and;

28. Are based upon adherence to procedures that satisfy the requirements of the 504 regulations mandating placement in the least restrictive environment; evaluation and placement; and a system of procedural safeguards.

29. §504 Plan or Not… • Written plans not required by federal regulations, BUT are required by GSD • Students who are found eligible under IDEA – the IEP is the §504 plan • Every student with a disability is protected from discrimination, but not every student with a disability requires a plan

30. Evaluation & Eligibility • §504 evaluation and placement provisions not as extensive as IDEA • §504 evaluation may not require formal testing, rather maybe gathering existing data for review • Medical diagnosis is not enough for eligibility – but must be considered • Districts must have established • standards and procedures

31. Eval and Eligibility cont. • Evaluation is required before the team takes any action for placement • Parent consent for eval – not required in the regs, but is required in the Q & A doc – Get consent prior to evaluation process • Evaluation must take place for any student “believed to need special • education or related services

32. “Placement”…? • §504 uses the term “placement” which really is the nature of procedures for determining “eligibility” • Team shall: • Draw upon information from a variety of sources including aptitude and achievement, teacher recommendations, physical condition, social or cultural background, and adaptive behavior

33. Establish procedures to ensure that information obtained from all such sources is documented and carefully considered. • 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 placement options, and; • Ensure that the placement decision is made in conformance with the LRE • provisions.

34. 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

35. §504 v. IDEA §504 Eligibility IDEA Eligibility Meets one or more definitions of IDEA disability categories Disability adversely affects the student educational performance Requires special education and related services (specially designed instruction) • Has a physical or mental impairment • Impairment substantially limits one or more major life activities • Requires services to meet educational needs as adequately as needs of non-disabled students

36. Typical Conditions/Impairments • Students with diseases/contagious conditions • HIV-positive/AIDS, Tuberculosis, Hepatitis-B, H1N1 • Students with medical conditions • Juvenile rheumatoid arthritis, Asthma, Severe Allergies, Diabetes, Heart Disease, Epilepsy, Sickle Cell Anemia, Chronic Fatigue Syndrome, Pregnancy, Obesity, ADD/ADHD, ODD, Conduct Disorder, • and/or Social Maladjustment

37. Students with physical disabilities (but not IDEA eligible) • Cerebral palsy, Spina Bifida, students who need catheterization or other health-related services • Alcoholics/drug addicts • Although it can be disabling, in 1990 it was ruled that students who are currently engaging in illegal use of drugs are excluded. • Does include former users, successful rehab participants and students who are regarded as current users – if it substantially limits one or more life activities

38. 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

39. 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

40. 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

41. §504 Teams Gone Wild “Johnny will participate on the varsity basketball team” “Susie will be in the school choir” • The sport or activity doesn’t belong in the plan, only the supports needed for them to participate • Students must be “otherwise qualified” as judged by the same criteria as other students

42. Work As A Team If in doubt…check it out