Section 504 Compliance and Update

Information from Webinar on

September 6, 2011

Title II of ADA Came Into Effect March 2011

• The ADA Amendments of 2008 (“ADAAA”) included a conforming amendment to Section 504 that affects the meaning of “disability.”

• Amendments state that the definition of “disability” shall be construed in favor of “broad coverage.”

• New regulations to Title II of the ADA address service animals.

Statute 29 U.S.C.§ 794 (a)

No otherwise qualified individual with a disability…shall, solely by reason of his or her disability, be:

• Excluded from participation in,

• Denied the benefits of, or

• Subjected to discrimination under any program or activity receiving federal financial assistance.

What Does Non-Discrimination Mean?

School Districts May Not:

• Exclude

• Provide a service that is less effective

• Provide different services unless necessary based on a child’s needs

• Impose limitations not imposed on others

What Does Non-Discrimination Mean?

Standard is “equal opportunity” (to fully participate in school)

• Need not produce identical results.

• Must provide necessary accommodations or adjustments to the program to allow full participation in the least restrictive environment.

Who Is Covered By Section 504

“Handicapped” persons, defined as individuals—(school age children [for our purposes])

• with a physical or mental impairment that substantially limits one or more major life activities;

• with a record of such impairment; or• who are regarded as having such an

impairment.

Three-Part Test For Disability Under Section 504

All must apply:

• A physical or mental impairment

• hat substantially limits

• one or more major life activities (major bodily function)

Conditions That Are Episodic or in Remission

An impairment that is episodic or in remission is a life disability if it would substantially limit a major life “activity when active”.

What Is A Major Life Activity?

• Walking• Speaking• Caring for oneself• Performing manual tasks• Hearing• Seeing• Working• Breathing• Learning

• Eating• Lifting• Standing• Bending• Sleeping• Communicating• Concentrating• Reading• Thinking• Major Bodily Functions

What Is A Major Life Activity for School-Aged Children?

Learning (May be one or the other.)

• Ability to learn

• Ability to physically access location for learning

Gray Areas: Controlling one’s behavior? Forming social relationships with peers? Sitting? Keyboarding? Solving math problems?

What Is A Major Bodily Function?

Almost always qualifies as a substantial limitation and would warrant a 504 Plan.

• Functions of the immune system

• Normal cell growth

• Digestive function

• Bowel function

• Bladder function

What Is A Major Bodily Function? Con’t.

• Respiratory function

• Circulatory function

• Endocrine function

• Reproductive function

• Brain function

• Neurological function

504 Includes A Student With…

• a physical disability who does not require special education

• severe allergies or asthma, requiring the use of an inhaler or an environment free of allergens

• ADD/ADHD who does not quality under IDEA but whose condition nevertheless substantially limits concentrating, learning, or thinking

504 Includes A Student With…

• dyslexia who does not qualify under IDEA but whose condition nevertheless substantially limits reading.

And probably includes…

Most student who need or have an individualized health care plan (IHP).

(Evaluate all students individually who have a health care plan.)

IDEA/504

If a parent declines IDEA services, the act of declining these services does not disqualify the child for a 504.

EEOC Standard for “Substantially Limits”

Substantially Limits=Limited in comparison to most people in the general population (w/children—compared to their peers)

Extend to the maximum allowed by law…this broadens the definition of the qualification needed for a 504 Plan.

Student Achievement is Not Determinative of a Substantial

Limitation on Learning

“Someone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in the majory life activity of learning because of the additional time or effort he or she must spend to read, write or learn compared to most people in the general population.” EEOC, Commentary to ADAAA regulations

In Other Words…

Just because a child is being successful in class or on tests does not automatically disqualify them for a 504 Plan with the substantial limitation being learning.

If they spend more time doing tasks, have a tutor, etc., they may qualify for a 504 Plan…must check time and effort and compare to peers.

Indicators of “Substantial Limitation on Learning”

As compared to most student:• Consistent need for more time• Consistent need for modified testing• Frequent behaviors associated with

identified physical/mental impairment that interferes with school performance

• Significant difficulty with planning, organization, and execution of activities and assignments

Indicators of “Substantial Limitation on Learning” Con’t.

As compared to most students:

• Chronic absence/tardiness related to physical/mental impairment

• Steady decline in academic performance

• Steady increase in need for discipline

• Classroom interventions do not alleviate difficulties

Mitigating Measures and Episodic Conditions

Measures that mitigate or correct the impairment cannot be taken into account.

Exception: ordinary eyeglasses and contact lenses

MAY NOT USE: Medications, hearing aids, etc….Learned behaviors, assistive technology…reasonable accommodations

Episodic Conditions

Episodic or recurring inactive conditions must be viewed as if an episode is occurring.

In other works; a child with an allergy to bee stings, who has an individual health plan that allows an epi-pen, must be evaluated based on steps to take if he did not have an epi-pen…same thing with a child who takes insulin at school…504 plan must be written as if they had no insulin to take.

Response When Mitigating Measures Ameliorate (change) the

Effects of the Disability?Two possible options for “technically eligible”

students:

1. Do not create a 504 plan; notify the parents why you are not providing a plan at this time; establish a timeline for future review

OR

Response When Mitigating Measures Ameliorate (change) the

Effects of the Disability? Con’t.

2. Create a 504 plan to be implemented if/when specified contingencies occur (increased absences, failing grades, etc.); designate someone to monitor the student and signal the need to implement the plan.

Remember Your Obligation is NOT TO DISCRIMINATE

Against These Students.

504 Accommodations Might Include:

• Changes to the learning environment

• Changes to/aides for instructional delivery

• Changes to assignments/homework

• Changes to testing procedure

• Organizational assistance

• Behavioral modifications

• Communication modifications

Extra Curricular or Non-Academic Services

“Equal opportunity for participation” in:• Clubs• Recess• Lunch• Field trips• Athletics• Reasonable accommodation to rules, policies or

practices• Removal of architectural or other physical barriers• Provision of auxiliary services(The last two, consult board attorney.)

Discipline of 504 Students

• Students may not be suspended for more than 10 days or expelled for misconduct related to their disability.

• Manifestation determination is necessary prior to imposing this type of discipline. (Just like with identified exceptional children.)

• A series of short-term suspensions may be a change in placement, requiring a manifestation determination.

• Discriminatory punishment is prohibited.• Educational services may cease during periods of

suspension or expulsion.

Ten Tips to Stay Out of Trouble

1. Be sure your staff is using the current eligibility standards to identify eligible students and that all eligibility forms, procedures and training materials are current and aligned with the new standards.

2. Evaluate students with medical needs for Section 504 services, do not merely address the needs.

Ten Tips to Stay Out of Trouble

3. Be prepared to respond to requests from parents who revoke IDEA services.

4. Do not assume that IDEA eligibility/ineligibility=504 eligibility/ineligibility

5. Ensure that all teachers and other staff members responsible for implementing a student’s Section 504 plan fully comply with it when the school year begins.

Ten Tips to Stay Out of Trouble

6. Ensure that substitute teachers comply with students’ 504 plans.

7. Do not use learning as the sole gauge of Section 504 eligibility.

8. Take affirmative steps to provide accommodations listed in the 504 plan instead of waiting for the student to request them.

Ten Tips to Stay Out of Trouble

9. Identify, provide contact information for, and identify the specific issues that the 504 coordinator will address, e.g., handle complaints of disability discrimination as well as requests for Section 504 services and ADA Title II claims.

10. Don’t ignore disability-based harassment and bullying.