Chapter 15 Section 504

1. Chapter 15 Section 504 What does 504 mean to a School District? September 30, 2014 Maiello Brungo & Maiello

2. IMPORTANT! Every District must have a Section 504 Manual to instruct staff how to implement requirements of Section 504.

3. Let’s Get Started! • How do I respond? • Physician’s diagnosis requires a Section 504 service agreement • Exited from special education requires a Section 504 service agreement • Parent withdraws consent for special education required a Section 504 service agreement • Parent disagreement with a Section 504 evaluation requires an independent educational evaluation at public expense • Parent elects not to attend the Section 504 meeting requires rescheduling the meeting at parental convenience.

4. The ActsFederal • Section 504 of the Rehabilitation Act of 1973 • Title II of The Americans with Disabilities Act of 1990 (ADA) • The Americans with Disabilities Act Amendments Act of 2008 (ADAAA) • IDEA • FERPA

5. The RegulationsState • Pennsylvania School Code of 1949 • Pennsylvania Nurse Practice Act • Pennsylvania Practical Nurse Act • Department of Health Guidelines Regarding Administration of Medications (22 Pa Code, 12.41 Student Services) • Chapter 15

6. What is Section 504? Section 504 is a part of the Rehabilitation Act of 1973 that prohibits discrimination based upon disability. Section 504 is an anti-discrimination, civil rights statute that requires the needs of students with disabilities to be met as adequately as the needs of the non-disabled.

7. What do the regulations say? • Local Educational Agencies (School District and Charter Schools) that receive federal financial assistance must comply with the implementation regulations at 34 CFR Part 104. • “No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program of activity which receives Federal financial assistance. 34 C.F.R. §104.4(a)].

8. Who is covered under Section 504? • To be covered under Section 504, a student must be a “qualified” handicapped person as per state and federal law, and must have a disability) [34 C.F.R. §104.3(k)(2)]

9. 3 Pronged Guideline • Definition of disability • Prong 3 broken into three parts • Physical or mental impairment • Substantially limits • Major life activity 9

10. Title II ofThe Amendments Act of 2008 • Congress directed that the definition of a disability be “construed broadly and that the determination of whether an individual has a disability should not demand extensive analysis”. • The 2008 amendment extensively broadened the eligibility.

11. Title II ofThe Amendments Act of 2008 Significant Changes to K-12 Section 504 • Expansion of Major Life Activities • Treatment of impairment if it is episodic or in remission • Mitigating measures rule • New definition of Substantial Limitation

12. What is a “major life activity”? • Reading* • Seeing • Sleeping • Speaking* • Standing • Thinking • Walking • Working * Added in ADA Amendments of 2008 • Bending • Breathing • Caring for one’s self • Communicating* • Concentrating* • Eating • Hearing • Learning • Lifting • Performing manual tasks

13. More….. Major life activities shall include: The operation of major bodily functions • Bladder • Bowel • Brain • Circulatory • Digestive • Endocrine • Immune system • Neurological • Normal cell growth • Respiratory • Reproductive functions

14. Episodic or in Remission • ADAAA says, “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” •seasonal allergies •migraines •seizure disorder

15. Mitigating Measures What are they? • Something that limits the impact of the impairment • Something usually provided by the parent • Something that a student must use in the school setting i.e. medication, equipment, materials

16. What about these? • Temporary disability–an impairment of less than 6 months • Health Plans-mitigating measures? • Impairments that consistently meet the criteria for a Section 504?

17. Substantial Limits • Definition: “…Significantly restricted as to the condition manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner , or duration under which the average person in the general population can perform in the same major life activity….”

18. EvaluationsParent Initiated • Request including • Child should be identified as a protected handicapped student, no longer be, request a modification • Include relevant medical records • Reasons why • Related aids, services, or accommodations requested • Specific modifications

19. Evaluation TimelineParent Initiated • The district shall within 25 school days • Send written response • Native language • Mode of communication • Request granted/denied • Denied/notice to parents • Right to meet with school officials • Procedural safeguards

20. EvaluationsDistrict Initiated • Request for consent sent in writing • Identify the procedures and types of tests • Inform parents of their rights

21. What is Required for an Evaluation? • The district should • Establish standards and procedures for the evaluation and placement, including • Tests and other evaluation material • Information from a variety of sources including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background and adaptive behavior • Medical reports related to physical/mental impairment • Parent information

22. Must haves District should have • policies and procedures • current and updated forms • a Section 504 coordinator who is up-to-date • informative sessions with teachers and staff

23. Must Haves, con’t Evaluations: District should • receive written parental consent • provide the parent with procedural safe guards • establish a group of persons who know the child • look at a “variety of sources” • native language, if necessary

24. What about Reevaluations? • Procedures should include provisions for periodic reevaluations of students • No timeline for conducting reevaluations is included in law • BUT suggested-”…procedure consistent with the Education for the Handicapped Act is one means of meeting this requirement.”

25. Education for the Handicapped Act • § 300.303   Reevaluations. • (a) General. A public agency must ensure that a reevaluation of each child with a disability is conducted in accordance with §§300.304 through 300.311— • (1) If the public agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or • (2) If the child’s parent or teacher requests a reevaluation.

26. Education for the Handicapped Act (con’t) • (b) Limitation. A reevaluation conducted under paragraph (a) of this section— • (1) May occur not more than once a year, unless the parent and the public agency agree otherwise; and • (2) Must occur at least once every 3 years, unless the parent and the public agency agree that a reevaluation is unnecessary. • (Authority: 20 U.S.C. 1414(a)(2))

27. What about a student who has a disability but does not need related services? • District must conduct an evaluation • Neither the Amendments Act or Section 504 obligates a district to provide aids that the student does not need • The student is still a student with a disability

28. The Service Agreement • 22 PA Code Chapter 15-15.7 • In writing-no oral agreements • Beginning date-ending date-modification date • Related aids, services accommodations • BEC - Implementation of Chapter 15 • Identifies the duties of the LEA • Sample forms

29. More Service Agreement • Both the LEA and the parents must sign off on the agreement plan • Reevaluations may be conducted “consistent with the Education for the Handicapped Act …” as a way of meeting this requirement.

30. What is NOT Required • Parent’s consent is required for the initial evaluation but not for the reevaluation. • Section 504 does not require that the evaluation be conducted by a team but by a group of persons knowledgeable about the child, evaluation data, and placement options. • Section 504 gives no statement regarding a group meeting to determine disability or placement however does require that a group of persons make the placement decisions.

31. Parental Revocation of Consent for Special Education Services • 34 CFR 300.300(b)(4) A parent may revoke consent in writing for his or her child’s receipt of special education services after the parents’ child was initially provided special education and related services…..” • A student is not entitled to a Section 504/Chapter 15 service agreement for services, accommodations or modifications if parents revoke consent for special education programs and services.

32. Parents and District Disagree • Either party can use procedural safeguards to resolve dispute • File a written request for assistance from PDE • PDE will investigate and respond with in 60 calendar days • Informal conference within 10 school days • Formal due process hearing

33. Independent Evaluations • Under Section 504 • Districts are not required to fund independent evaluations OCR indicated…Districts should consider independent evaluations provided by parents when interpreting evaluation data. “The results of an outside independent evaluation may be one of many sources to consider. Multi-disciplinary * committees must draw from a variety of sources in the evaluation process so that the possibility of error is minimized.” *Group of persons…..

34. IEP or Service Agreement Plan 34

35. IEP or Service Agreement Plan 35

36. Hot Topics • Issues with service dogs • Increased role of the school nurse • Increased needs for training, communications and policies • Rethinking eligibility i.e. mitigating measures • Pennsylvania Guidelines for Management of Food Allergies

37. Service Animal • A dog trained to do work or perform tasks for the benefit of an individual with a disability. Can only ask two questions: • What is the specific task that the dog will do? • Is the dog necessary?

38. Role of the School Nurse • Invite them to be a member of the group that determines disability and service agreement • Make sure there are procedures on administering medications • Be careful in the delegation of duties

39. Communications and Policies • Complicated plans lead to comprehensive communications • Stakeholders should be • Aware of procedures • Trained as necessary • Familiar with the service agreement

40. Rethink Eligibility Review the information from ADA Amendments Act of 2008 Understand your Child Find requirements Make sure parents are aware of their rights

41. Child Find • Child’s dependence on wheelchair triggers duty to evaluate under 504. Aurora Public Sch. (CO) (2013)

42. Child Find • If District believes a first step is to address child’s problem behaviors through classroom-level intervention and keeps a close eye to determine if further formal assessments are necessary – no violation of Section 504. Demarcus L. v. Bd of Ed of City of Chicago (2014)

43. Child Find • A District wrongly assumed that a student with a mood disorder did not need to be evaluated for special education eligibility because he never had academic or disciplinary issues, even though the student’s angry behavior resulted in removal from school and demonstrated a need for psychiatric treatment. Barnwell Sch. Dist. (S.C.) (2013)

44. 504 Annual Monitoring Form • How often has student accessed accommodation? • Why would you add accommodations in high school? • Documentation, documentation, documentation! TO add and to remove. • Role of counselors – Annual reevaluations • Medical update – annually – ask v. demand

45. The Forms • District-Initiated Evaluation As a ADA Protected Disabled Student • Annual Notice to Parents • Procedural Safeguards • Service Agreement • District Section 504 Manual!

47. Section 504 Agreement is NOT A CONSOLATION PRIZE!

48. Legal Implications of 504 Litigation Direct to federal court bypassing due process. Financial Risk to District greater than due process. Monetary damages > $500,000 Remedies: ongoing educational services, compensatory education, tuition reimbursement, expert witness fess, may allow attorney’s fees.

49. Mark H. v. Lemahieu (2008) Parents of two autistic children alleged denial of FAPE and prevailed under IDEA. Parents then filed suit under 504 and the Court found that failure to offer a valid IDEA program may, but does not necessarily, violate the section 504 duty. Standards are different and case had to be remanded.

50. Lyons v. Smith (1993) A student with ADHD was required to receive 504 services because he was entitled to an education designed to meet his individual educational needs as adequately as the needs of non-handicapped persons are met.