gwaea section 504 updates the 1973 rehabilitation act americans with disabilities act amendments act...

GWAEA Section GWAEA Section 504 Updates504 Updates

THE THE 1973 REHABILITATION ACT1973 REHABILITATION ACT

Americans with Disabilities Act Amendments Act of 2008Americans with Disabilities Act Amendments Act of 2008

Implementing Section 504 as Amended by the ADAAA08Implementing Section 504 as Amended by the ADAAA08

Materials for this presentation are being Materials for this presentation are being used/reprinted with permission of:used/reprinted with permission of:

James F. McKethan, LLCJames F. McKethan, LLC

Microscribe PublishingMicroscribe Publishing

910-946-6840910-946-6840

[email protected]@microscribepub.com

““Meet Your Student” ScenariosMeet Your Student” Scenarios Introduce yourself to those at your table.Introduce yourself to those at your table. You have a received a referral for a 504 You have a received a referral for a 504

(see scenario cards).(see scenario cards). Discuss your initial thoughts on the Discuss your initial thoughts on the

scenarioscenario Complete Box #1 on your recording sheetComplete Box #1 on your recording sheet Be thinking about your scenario as we Be thinking about your scenario as we

work through the information this work through the information this morning. You will revisit the scenario morning. You will revisit the scenario throughout the morning.throughout the morning.

Equal Equal Opportunity…Opportunity…

Nothing is more unequal thanNothing is more unequal than

the equal treatment ofthe equal treatment of

unequal people…unequal people…Lau V Nichols

© Copyright 2009 James F. McKethan, LLC

Section 504Section 504Protection Against DiscriminationProtection Against Discrimination

No otherwise qualified individual with a disability…Shall, No otherwise qualified individual with a disability…Shall, solely by reason of his or her handicap, be excluded from solely by reason of his or her handicap, be excluded from the participation in, be denied the benefits of, or be the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity subjected to discrimination under any program or activity receiving federal assistance. receiving federal assistance. 29 USC § 79429 USC § 794

Discrimination is the exclusion from participation in, the Discrimination is the exclusion from participation in, the denial of benefits of, any program or activity receiving or denial of benefits of, any program or activity receiving or benefiting from federal financial assistance. Students may benefiting from federal financial assistance. Students may not be denied participation in or be denied benefit from not be denied participation in or be denied benefit from services that are afforded nondisabled students. services that are afforded nondisabled students. 34 CFR 34 CFR §104.4§104.4


Equal Education Equal Education OpportunitiesOpportunities

An appropriate education is a program designed An appropriate education is a program designed to meet the individual educational needs of to meet the individual educational needs of

individuals with disabilities individuals with disabilities as adequatelyas adequately as as the needs of nondisabled students are met.the needs of nondisabled students are met.

Free Appropriate Public EducationFree Appropriate Public Education

34 CFR §104.33(b)(1)(i)


The School District’s ObligationsThe School District’s Obligations

AppropriateAppropriate Regular education, Regular education,

oror Special education Special education

and related aids and and related aids and servicesservices

34 CFR §104.33(b)(1)

How far do school officials need to go to comply with this requirement?


ADA Amendments Act of 2008ADA Amendments Act of 2008

Reverses effect of Reverses effect of Supreme Court decisionsSupreme Court decisions

Envisions a broad Envisions a broad umbrella of coverageumbrella of coverage

Lowers bar for showing Lowers bar for showing that an impairment that an impairment substantially limitssubstantially limits

Makes clear that eligibility Makes clear that eligibility for impairments that are for impairments that are episodic or are in episodic or are in remission is based on a remission is based on a substantial limitation substantial limitation when active.when active.

Expands list of major life Expands list of major life activitiesactivities

Prohibits consideration of Prohibits consideration of mitigating measuresmitigating measures

Clarifies third prong, Clarifies third prong, “regarded as,” definition of “regarded as,” definition of person with a disabilityperson with a disability

Makes clear that reasonable Makes clear that reasonable accommodations are not accommodations are not required for persons regarded required for persons regarded as disabledas disabled

Makes clear that minor and Makes clear that minor and transitory impairments are not transitory impairments are not protected disabilitiesprotected disabilities


Effective January 1, 2009

IDEA and Section 504 ComparisonIDEA and Section 504 Comparison

Funding statuteFunding statute Discrete categories of Discrete categories of

disabilitiesdisabilities Procedural Due ProcessProcedural Due Process ““Pure” Section 504 children Pure” Section 504 children

are not covered under IDEAare not covered under IDEA IEPs reasonably calculated to IEPs reasonably calculated to

convey educational benefitconvey educational benefit Consent for PlacementConsent for Placement Annual reviewAnnual review

Non-funding statuteNon-funding statute Broadly defines disabled Broadly defines disabled

childrenchildren Procedural Due ProcessProcedural Due Process All IDEA children are All IDEA children are

covered by Section 504covered by Section 504 Meet the needs of disabled Meet the needs of disabled

students as adequately as the students as adequately as the needs of non-disabled are metneeds of non-disabled are met

No consent requiredNo consent required No annual review requiredNo annual review required

IDEA Section 504


IDEA and Section 504 ComparisonIDEA and Section 504 Comparison

Child FindChild Find Consent for EvaluationConsent for Evaluation Re-evaluationsRe-evaluations LRELRE IEP TeamIEP Team Special EducationSpecial Education Culture, Economic & Culture, Economic &

EnvironmentEnvironment Discipline - ManifestationDiscipline - Manifestation

Child FindChild Find Consent for EvaluationConsent for Evaluation Re-evaluationsRe-evaluations LRELRE 504 Team504 Team Regular EducationRegular Education Culture, Economic & Culture, Economic &

EnvironmentEnvironment Discipline - ManifestationDiscipline - Manifestation

IDEA Section 504


Administration & EnforcementAdministration & Enforcement

Section 504 of the Rehabilitation Act of Section 504 of the Rehabilitation Act of 1973 is administrated by the US 1973 is administrated by the US Department of Education’s Office of Department of Education’s Office of Civil Rights.Civil Rights.

State departments of education have State departments of education have no enforcement authority for issues no enforcement authority for issues arising under Section 504.arising under Section 504.

Local districts must identify the person Local districts must identify the person responsible for ensuring compliance.responsible for ensuring compliance.

Section 504 provides procedural Section 504 provides procedural safeguards.safeguards.


General NoticeGeneral Notice School districts shall School districts shall

provide notices of provide notices of discrimination in discrimination in admission or access to, admission or access to, treatment or employment treatment or employment in, its programs and in, its programs and activities and shallactivities and shall

Identify the official Identify the official responsible for ensuring responsible for ensuring compliance with Section compliance with Section 504504

34 CFR §104.8


Document A

When to When to ConsiderConsider a Referral a Referral

A parent makes a request for an evaluation or A parent makes a request for an evaluation or for a 504 plan.for a 504 plan.

Suspension or expulsion is being considered.Suspension or expulsion is being considered. Academic performance is lower than expected.Academic performance is lower than expected. A student is evaluated and is not IDEA eligible.A student is evaluated and is not IDEA eligible. Student exhibits an on-going medical problem.Student exhibits an on-going medical problem. Students enroll with a 504 plan from another Students enroll with a 504 plan from another

district.district. An impairment of any kind is suspected.An impairment of any kind is suspected. A student is chronically absent due to A student is chronically absent due to

medical/health issues.medical/health issues. A student receives medication on school A student receives medication on school

grounds.grounds. A student formerly found not eligible due to A student formerly found not eligible due to

mitigating measures.mitigating measures.

The events listed are occasions when the existence The events listed are occasions when the existence of a disability should be considered and do not of a disability should be considered and do not

imply that the student is 504 eligible.imply that the student is 504 eligible.© Copyright 2009 James F. McKethan, LLC

Adapted from: Student Access, A Resource Guide for Educators, CASE

Documents B & C

Procedural SafeguardsProcedural Safeguards

Notice regarding identification Notice regarding identification evaluation or educational evaluation or educational placementplacement

Opportunity to examine relevant Opportunity to examine relevant recordsrecords

Impartial hearingImpartial hearing opportunity for participation opportunity for participation

by parentsby parents representation by legal counselrepresentation by legal counsel a review procedurea review procedure

Compliance with IDEA Compliance with IDEA procedures is one means of procedures is one means of meeting the 504 requirementmeeting the 504 requirement

34 CFR §104.36


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Assemble The Placement TeamAssemble The Placement Team

Ensure that the placement Ensure that the placement decision is made by a decision is made by a group of persons group of persons knowledgeable about:knowledgeable about:

the childthe child the meaning of the the meaning of the

evaluation dataevaluation data service optionsservice options

34 CFR §104.35(c)(3)


ADAAA 2008 & EvaluationsADAAA 2008 & Evaluations

What evaluation information will you use to assess What evaluation information will you use to assess reading, thinking, sleeping, and concentrating, etc.?reading, thinking, sleeping, and concentrating, etc.?

What funding is available to pay for evaluations?What funding is available to pay for evaluations? How do you determine whether MLA/MBF limitation How do you determine whether MLA/MBF limitation

is the result of mitigating measures?is the result of mitigating measures? Is it permissible to use the special education Is it permissible to use the special education

evaluation system for Section 504 evaluations?evaluation system for Section 504 evaluations?


In interpreting evaluation data and in making decisions, In interpreting evaluation data and in making decisions, a recipient shall:a recipient shall:

• draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior,

• establish procedures to ensure that information obtained from all such sources is documented and carefully considered.


Document E

School & Classroom School & Classroom PerformancePerformance

Informal Evaluation DataInformal Evaluation Data

EvaluationEvaluation

Evaluation must beEvaluation must be

Validated for their intended Validated for their intended use.use.

Administered in Administered in conformance with conformance with instructions provided by instructions provided by their producer.their producer.

Tailored to Tailored to assess specific assess specific areasareas of educational need. of educational need.

Accurately reflect the Accurately reflect the student’s aptitude or student’s aptitude or achievement level, etc., achievement level, etc., rather than sensory deficits, rather than sensory deficits, e.g., impaired sensory, e.g., impaired sensory, manual, or speaking skills…manual, or speaking skills…

ExamplesExamples

Scholastic recordScholastic record Report cardsReport cards Work samplesWork samples State assessment resultsState assessment results Psychological evaluationPsychological evaluation Norm referenced educational Norm referenced educational

assessmentsassessments Curriculum-based assessmentCurriculum-based assessment Structured academic & Structured academic &

behavioral interventionsbehavioral interventions Social and health historySocial and health history Information provided by parentInformation provided by parent

34 CFR §104.35 (b)


BeforeBefore Entering the Eligibility Process . . . Entering the Eligibility Process . . .

If concerns are purely academic or behavioral, If concerns are purely academic or behavioral, the student is provided interventions through the student is provided interventions through IDM and an evaluation based on information IDM and an evaluation based on information from a variety of sources before proceeding from a variety of sources before proceeding

If a student has significant physical or mental If a student has significant physical or mental health concerns, consider proceeding without health concerns, consider proceeding without accessing the IDM processaccessing the IDM process

A Referral ProcessA Referral Process


Mental and Physical ImpairmentsMental and Physical Impairments

any physiological disorder or condition, cosmetic any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; orendocrine; or

any mental or psychological disorder, such as mental any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.illness, and specific learning disabilities.

34 CFR §104.3 (j)(2)(i)


Mental and Physical ImpairmentsMental and Physical Impairments

Non Verbal Learning Non Verbal Learning DisorderDisorder

Central Auditory Central Auditory Processing DisorderProcessing Disorder

PregnancyPregnancy

ObesityObesity Slow LearnersSlow Learners AlcoholismAlcoholism Drug AddictionDrug Addiction

34 CFR §104.3 (j)(2)(i)

What about the following?


I’m TylerI’m Tyler

Major Life ActivitiesMajor Life Activities

““Major life activities” means functions Major life activities” means functions such such asas caring for one’s self, performing manual caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, tasks, walking, seeing, hearing, speaking, breathing, learning, and workingbreathing, learning, and working

The ADAAA08 added: reading, The ADAAA08 added: reading, concentrating, thinking, sleeping, eating, concentrating, thinking, sleeping, eating, lifting, bending, communicating and the lifting, bending, communicating and the operation of a major bodily function such as operation of a major bodily function such as the immune system, normal cell growth, the immune system, normal cell growth, digestive, bowel, bladder functionsdigestive, bowel, bladder functions

When is a function or activity a major When is a function or activity a major life activity?life activity?

34 CFR §104.3(j)(2)(II) amended by the ADAAA of 2008


Cultural, Environmental and Cultural, Environmental and Economic FactorsEconomic Factors

HomelessHomeless MigrantMigrant ESLESL PovertyPoverty Cultural factorsCultural factors Attendance ProblemsAttendance Problems

TransiencyTransiency DivorceDivorce Death of a family member and Death of a family member and

other family crisesother family crises Military deploymentsMilitary deployments

34 CFR §104 Appendix A Analysis of Final Regulation

“The first of the three parts of the definition (of a disabled person) specifies that only physical and mental disabilities are included. Thus, environmental, cultural, and economic disadvantage are not themselves covered.”


Mitigating MeasuresMitigating Measures

Many students who come before the 504 team are taking prescribed Many students who come before the 504 team are taking prescribed medication to mitigate the effects of the impairment.medication to mitigate the effects of the impairment.

Students who experience no substantial limitation in any major life Students who experience no substantial limitation in any major life activity when using a mitigating measure does not meet the definition activity when using a mitigating measure does not meet the definition of a person with a disability and would not be entitled to FAPE under of a person with a disability and would not be entitled to FAPE under Section 504.Section 504.

The corrective effects of mitigating measures The corrective effects of mitigating measures cannot be consideredcannot be considered in determining whether in determining whether

or not a person is disabled.or not a person is disabled.

ADA Amendments Act of 2008


Scenario PracticeScenario Practice

What existing evaluation data would you What existing evaluation data would you look at? (Complete Box #2)look at? (Complete Box #2)

What evaluation data do you need to What evaluation data do you need to obtain?obtain?

What is the impairment?What is the impairment? Identify the Major Life Activity Identify the Major Life Activity

(MLA).(MLA). What other factors would you consider?What other factors would you consider?

The 504 Eligibility The 504 Eligibility StandardStandard

……When a school improperly identifies a When a school improperly identifies a student…It not only mislabels the student…It not only mislabels the student, it opens the door to a host of student, it opens the door to a host of procedural obligations and potential procedural obligations and potential legal liabilitieslegal liabilities

Jim Walsh, “Compliance Keys,”Jim Walsh, “Compliance Keys,”

Section 504 Compliance AdvisorSection 504 Compliance Advisor, April 2007, April 2007


Not IDEA Eligible?Not IDEA Eligible?

Section 504 eligibility is not a Section 504 eligibility is not a consolation prize for students who consolation prize for students who do not qualify for special educationdo not qualify for special education

Perry Zirkel, Lehigh UniversityPerry Zirkel, Lehigh University


Determine Section Determine Section 504 Eligibility504 Eligibility

CFR 1630.2(j)(2)

Evaluation Information

Mental or Physical Impairment

MLA performance restricted when compared to performance of a nondisabled student

Eligibility Decision


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Barriers to

Learning

Learning Learning SupportsSupports

Successful in School

Core InstructionRange of Learners

= Motivationally ready & able to learn

1

2 =

Encounter some barriers and may be lacking prerequisite knowledge & skills

3 =

Encounter complex and intensive barriers to learning

Focusing solely on instruction will not

help students in groups 2 & 3 succeed

ScenarioScenario

Based on the evaluation data you have, is the Based on the evaluation data you have, is the student eligible for a 504? (Complete Box #3)student eligible for a 504? (Complete Box #3) To what extent is the student limited in To what extent is the student limited in

comparison to his/her non-disabled peers?comparison to his/her non-disabled peers? What would you present as justification for the What would you present as justification for the

eligibility?eligibility?

Considerations for Accommodations/ServicesConsiderations for Accommodations/Services

Does the student require more time for Does the student require more time for homework and in-school assignments?homework and in-school assignments?

Are modified assignments necessary? Subject Are modified assignments necessary? Subject matter, types of assignments, testing, etc.?matter, types of assignments, testing, etc.?

Are there instructional and social behaviors that Are there instructional and social behaviors that need to be addressed?need to be addressed?

Does the student have substantial difficulty Does the student have substantial difficulty organizing, planning and completing organizing, planning and completing assignments?assignments?

Is the student chronically absent? For what Is the student chronically absent? For what reasons?reasons?

Is there a steady increase in disciplinary Is there a steady increase in disciplinary incidents?incidents?

Does the student require specialized health Does the student require specialized health management? If so, what intervention and at management? If so, what intervention and at what frequency?what frequency?


Possible Accommodati

ons List

Criterion for Criterion for Appropriate Accommodations/ServicesAppropriate Accommodations/Services

Designed to address specific major life Designed to address specific major life activities/major bodily functions in which a activities/major bodily functions in which a substantial limitation is documented.substantial limitation is documented.

Designed to meet individual educational Designed to meet individual educational needs of handicapped persons as adequately needs of handicapped persons as adequately as the needs of nondisabled students.as the needs of nondisabled students.

34 CFR 104.33(b)(1)


Guidelines for AccommodationsGuidelines for Accommodations Ensure the service, accommodation or Ensure the service, accommodation or

adjustment is supported by evaluation data.adjustment is supported by evaluation data. Write clear and specific accommodations:Write clear and specific accommodations:

Leaving no room for interpretation,Leaving no room for interpretation, avoid open-ended accommodations, andavoid open-ended accommodations, and avoid giving teachers discretion to implement.avoid giving teachers discretion to implement.

Accommodations for state assessment must Accommodations for state assessment must be used regularly in the instructional be used regularly in the instructional programprogram

Ensure teachers understand the Ensure teachers understand the accommodations:accommodations:

Clarify terminology, e.g., preferential seating, extended Clarify terminology, e.g., preferential seating, extended time, etc.,time, etc.,

provide training, if necessary, andprovide training, if necessary, and develop a teacher accountability protocol.develop a teacher accountability protocol.

34 CFR 104.33(b)(1)


Documents G & H

ScenarioScenario

What are 2-3 appropriate accommodations for What are 2-3 appropriate accommodations for the student? (Complete Box #4)the student? (Complete Box #4)

What are the possible unintended What are the possible unintended consequences of each accommodation?consequences of each accommodation?

Section 504 Re-EvaluationSection 504 Re-Evaluation

The District must establish re-evaluation procedures.The District must establish re-evaluation procedures. The re-evaluation must be conducted on a periodic basis.The re-evaluation must be conducted on a periodic basis. A re-evaluation procedure consistent with the special A re-evaluation procedure consistent with the special

education re-evaluation requirement is one way of education re-evaluation requirement is one way of meeting Section 504 requirements.meeting Section 504 requirements.

Conduct a re-evaluation prior to any significant change in Conduct a re-evaluation prior to any significant change in situation.situation.

34 CFR §104.35 (d)


Best PracticeBest Practice

Review Annually and if the student’s situation Review Annually and if the student’s situation changes (condition gets better or worse, changes (condition gets better or worse, transition, etc.)transition, etc.)

Re-Evaluate every three yearsRe-Evaluate every three years Consider dismissal if student is no longer Consider dismissal if student is no longer

substantially limited or if services move to an substantially limited or if services move to an IEP.IEP.

DisciplineDiscipline

A handicapped student may not be suspended for A handicapped student may not be suspended for more than ten days w/o a manifestation hearing, more than ten days w/o a manifestation hearing, e.g., determination that misconduct is not caused e.g., determination that misconduct is not caused by the disabilityby the disability

The determination is made by the Section 504 teamThe determination is made by the Section 504 team The manifestation determination is a reevaluationThe manifestation determination is a reevaluation Must take into account recent evaluation data that Must take into account recent evaluation data that

provides an understanding of the student’s current provides an understanding of the student’s current behaviorbehavior

OCR: Long-term Suspension or Expulsion, 1988


Long – Term SuspensionsLong – Term Suspensions

The principal may initiate disciplinary The principal may initiate disciplinary procedures for 504 students when the procedures for 504 students when the misconduct is not directly caused by the misconduct is not directly caused by the disability.disability.

The 504 team may modify the current The 504 team may modify the current educational placement when the educational placement when the misconduct is directly caused by the misconduct is directly caused by the disability. If appropriate, an alternative disability. If appropriate, an alternative educational placement may be considered.educational placement may be considered.


Discipline and Discipline and Substance AbuseSubstance Abuse

Current drug users are excluded from the Current drug users are excluded from the definition of handicapped under Section definition of handicapped under Section 504 & the ADA.504 & the ADA.

Current drug and alcohol users are subject Current drug and alcohol users are subject to the same disciplinary action to the extent to the same disciplinary action to the extent applied to non-handicapped students for applied to non-handicapped students for similar code of conduct infractions.similar code of conduct infractions.

OCR: Staff Memo, 1991, 17 IDELR 609


504 Hazards & Catch 22’s504 Hazards & Catch 22’s Murky proceduresMurky procedures High-stakes enterpriseHigh-stakes enterprise Over-identificationOver-identification Failure to identify childrenFailure to identify children Providing 504 plans in lieu of IEP’sProviding 504 plans in lieu of IEP’s Not following proceduresNot following procedures Refusing to implement Refusing to implement

Accommodation PlansAccommodation Plans


There is There is disagreement disagreement

among the team among the team members. members.

Now what?Now what?

34 CFR §104.36


Minimize Conflict with ParentsMinimize Conflict with Parents Act promptly on parental requests for evaluations.Act promptly on parental requests for evaluations. Develop a parent-friendly brochure outlining the 504 Develop a parent-friendly brochure outlining the 504

eligibility standard and the step-by-step referral eligibility standard and the step-by-step referral process.process.

Distribute brochures to local medical and mental Distribute brochures to local medical and mental health providers.health providers.

Conduct Section 504 information forums for parents, Conduct Section 504 information forums for parents, community service providers.community service providers.

Organize 504 team meetings with an agenda.Organize 504 team meetings with an agenda. Be knowledgeable of the student’s impairment.Be knowledgeable of the student’s impairment. Implement 504 accommodations.Implement 504 accommodations.


Grievance ProceduresGrievance Procedures

School districts shall:School districts shall: Designate at least one person Designate at least one person

to coordinate its complianceto coordinate its compliance Adopt grievance procedures Adopt grievance procedures

that incorporate appropriate that incorporate appropriate due process standards and due process standards and that provide for the prompt that provide for the prompt and equitable resolution of and equitable resolution of complaints alleging complaints alleging discriminationdiscrimination

34 CFR §104.7


(Documents I & J)

Scenario SharingScenario Sharing

Finalize the Quality Quadrant with notes Finalize the Quality Quadrant with notes regarding your scenarioregarding your scenario

Choose a ReporterChoose a Reporter Share with the group the following:Share with the group the following:

Summary of studentSummary of student Evaluation data consideredEvaluation data considered Team decision including MLA and impairmentTeam decision including MLA and impairment 3 accommodations3 accommodations

Questions, Comments, Questions, Comments, Witty RemarksWitty Remarks

gwaea section 504 updates the 1973 rehabilitation act americans with disabilities act amendments act...

Documents

needs of disabled students

appropriate education

disabilities copyright

disabled children procedural

idea children

needs of nondisabled

idea pure section

services special education