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SECTION 504 LEGAL OVERVIEW

presented by:

Thomas Mock

Vickie Brown

Rebecca Hardiman

Rodney C. Lewis

July 21, 2011

Mega Conference

Mobile, Alabama

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I. INTRODUCTION

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Two Federal Statutes

Specifically Impact Public Schools and

their Relationships with Disabled Students

Section 504 of the Rehabilitation Act of 1973

(Section 504)

Individuals with Disabilities Education Act

(IDEA)

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Section 504

The Rehabilitation Act of 1973 is a broad federal

civil rights law that provides rights to disabled individuals.

Section 504 is that portion of the Rehabilitation Act of 1973 that bars discrimination against the disabled in all programs, agencies, etc., receiving federal funding, including public schools.

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What Does Section 504 of the

Rehabilitation Act Actually Say?

“No (1) otherwise qualified (2) handicapped

individual . . . shall, solely by reason of his

handicap, be excluded from participation in, be

denied the benefits of, or be subjected to

discrimination under any program or activity

receiving Federal financial assistance. . .”

29 U.S.C. 794 (1973).

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Section 504’s Two Part Obligation

Upon Public Schools

1. Section 504 has a nondiscrimination

mandate.

2. Section 504 has a FAPE mandate.

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Section 504’s

“Nondiscrimination” Mandate

Prohibition upon excluding a disabled student

from participating in or benefiting from programs

or services provided by public schools to all

students due to a student’s disability.

Nondiscrimination mandate impacts issues such as

disciplinary change of placements, extra-curricular

activities, accessibility to buildings, out-of-district

enrollment criteria, after-school programs,

attendance policies, etc.

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504 student must still be “otherwise qualified” for

non-FAPE programs and services and schools are

not required to alter the “fundamental nature” of

its non-FAPE programs and services.

Nondiscrimination mandate also applies equally to

students being served solely under the IDEA.

Section 504’s

“Nondiscrimination” Mandate

Section 504’s Supplemental

“FAPE” Mandate

The 504 regulations define FAPE as the provision

of services that:

i. are designed to meet the individual needs of

handicapped students as adequately as the needs

of nonhandicapped students are met and

ii. are based upon adherence to procedures that

satisfy the requirements of 504.

34 CFR 104.33(b)(1).

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Three Ways That Section

504 is Enforced

U.S. DEPARTMENT OF EDUCATION, OFFICE

FOR CIVIL RIGHTS

LOCAL DUE PROCESS HEARING

JUDICIAL REMEDIES

504’s Procedural Requirements

Appointment of a Section 504 coordinator.

Adoption of a grievance procedure.

Nondiscrimination notice.

Procedural safeguards as to identification,

evaluation, and placement of 504 students. 11

504’s Procedural Safeguards

Requirement.

A district is required to establish a system of

procedural safeguards with respect to actions

regarding identification, evaluation, and placement

to include:

1. Notice

2. Review of records.

3. Impartial hearing provisions.

4. Review procedure

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II. ADAAA’S IMPACT UPON

SECTION 504

ADA Amendments

Americans with Disabilities Act Amendments

(Effective 2009) deemed by Congress to also be

applicable to Section 504.

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ADA Amendments

ADAAA has broadened the scope of public school

students eligible under Section 504.

More students will now qualify for Section 504.

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ADA Amendments

Schools must recognize new sub-categories of major life activities such as reading and attention.

Prohibits school from considering the positive effects of mitigating measures. (medication, healthcare plans, accommodations).

Requires schools to consider conditions in remission and/or episodic as if symptomatic. (cancer, allergies, etc.).

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ADA Amendments

On a positive note, the “substantial limitation

when compared to average student standard” for

Section 504 eligibility still remains.

Rim of World Sch. Dist., 109 LRP 27323 (OCR

2009).

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Post-ADAAA OCR Opinions

See, FAQs about Section 504, Question 34 (OCR 2009).

Fox (MO) C-6 Sch. Dist., 109 LRP 54751 (OCR 2009).

St. Clair County (MI) Regional Educational Service

Agency, 53 IDELR 238 (OCR 2009).

Rim of World Sch. Dist., 109 LRP 27323 (OCR 2009).

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III. 504: ELIGIBILITY AND

EVALUATION

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504 Eligibility Criteria

Under 504, a student is disabled or eligible if:

A. the student has a 1. physical or mental

impairment which 2. substantially limits one or

more of such student’s 3. major life activities.

B. has a record of such an impairment; or

C. is regarded as having such an impairment.

(29 USC Sec. 706(8)).

504 Team’s Three Prong Eligibility

Check-Sheet

1. Physical or Mental Impairment

2. Substantially Limits

3. Major Life Activity

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What is a “Physical or Mental

Impairment” Under 504?

Since the entire focus of Section 504 is

nondiscrimination arising from a

disability, the presence of some

impairment is necessary.

Almost any medical or psychological

disorder will suffice.

34 C.F.R.§104.3(j)(2)(i).

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What Constitutes a “Major Life

Activity” Under Section 504?

Section 504 does not provide an exhaustive list.

“Learning” is not the sole major life activity that

may qualify a student for services.

Activities such as walking, seeing, hearing,

speaking, breathing, learning and working.

34 CFR 104.3(j)(1).

What Does “Substantially Limits”

mean under 504?

“Average Student” comparison standard remains

applicable under ADAAA.

School cannot consider the effect of “mitigating measures”

in determining eligibility.

Impairment that is episodic or in remission must be

considered as if active.

See, FAQs about Section 504, Question 34 (OCR 2009).

Implementation Tips

If parent requests Section 504 services, school

must make a referral for evaluation under Section

504. This does not mean that the student will be

found eligible.

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Implementation Tips

Students with medical conditions such as diabetes, asthma, allergies, etc. will largely qualify for initial Section 504 eligibility if condition results in a substantial limitation.

Despite the ADA Amendments, students with only mild academic and/or behavior problems should still not be made eligible for Section 504. (However, still accept the referral if parent initiated).

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Implementation Tips

Accept or recognize that some students with

episodic or mitigated disabilities, will now

initially qualify for Section 504, but will not be in

need of an actual Section 504 accommodation

plan.

Two general options for school districts as to issue

of Section 504 plan for student with episodic or

mitigated disability . 27

Option One-Provide No Plan

No structured Section 504 plan provided.

Remember: Student is still entitled to protection

from discrimination.

Provide parent with notice of eligibility, reasons

why no accommodation plan provided, and

procedural rights.

Schedule periodic reviews to confirm that no

accommodations still not needed.

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Develop Section 504 plan specifying what

accommodations would be provided if and when

certain contingencies occur.

Declining academic performance, increased

absences, behavioral issues, change in medication,

or a proposed disciplinary change of placement

would be typical contingencies.

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Option Two-Develop Contingency

Section 504 Plan

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COMMON 504

ELIGIBILITY/EVALUATION

QUESTIONS

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1. May a school require a parent to

provide a medical/psychological

diagnosis?

No. If school determines such is necessary in

order to determine the student has a disability, the

school must obtain at its expense .

Williams County (TN) Sch. Dist., 32 IDELR

61(OCR 2000).

2. Can a 504 eligibility determination

be made solely upon a medical or

psychological report?

No. School must still determine if impairment

“substantially limits” “a major life activity”.

Eligibility must be based upon information from a

variety of sources. 34 C.F.R. 104.35

Cle Elum-Roslyn (WA) Sch. Dist., 41 IDELR 271

(OCR 2004).

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3. What if a parent will not allow access

to necessary medical or psychological

information?

A determination of no eligibility is appropriate when

school has no other sufficient evaluative materials to

make an informed eligibility decision.

Montgomery Co. Pub. Sch., 31 IDELR 84 (1999).

Evaluation decision based upon existing data still

required.

Rose Hill (KS) Pub. Sch., 46 IDELR 290 (2006)

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4. What about temporary disabilities?

Must be considered on a case by case basis considering the duration and degree of disability.

Many temporary impairments can be appropriately addressed via general education services, i.e., medical plan, homebound, make-up work, minor classroom/accommodations.

*Remember: The student must be properly evaluated out of Section 504.

See, FAQs about Section 504, Question 34 (OCR 2009).

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5. Should a Section 504 Plan be

provided to a pregnant student?

Pregnancy is generally not a qualifying disability

under Section 504 unless substantial medical

complications arise. Lacoparra v. Pergament

Home Centers, Inc., 11 NDLR 48 (S.D. N.Y.

1997).

* Remember: Title IX and other federal laws provide

near identical protections as Section 504 to a

pregnant student.

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6. What about Section 504 eligible

transfer students?

Section 504 transfer student remains

entitled to FAPE upon new enrollment.

Receiving school must implement current

Section 504 plan to the extent practical,

until the receiving school’s team can meet

to determine appropriateness. (If not

appropriate, team would pursue evaluations

and revisions to plan.)

OCR FAQ 38 & Flagler County FL) School

Dist., 34 IDELR 182 (OCR 2000).

7. What if a parent disagrees with

team’s finding of non-eligibility?

Provide parent with notice as to team’s decision

and reasons for eligibility denial.

Provide parent with Section 504 procedural due

process rights.

It is then up to the parent to pursue a challenge to

the team’s decision of non-eligibility. (OCR

complaint or request for local due process

grievance/hearing).

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8. What if a parent refuses consent

for evaluation or placement?

Schools may but are not required to pursue a due

process hearing to seek override of a parent’s

refusal.

It is likely that the USDOE will negate this rule in

the near future so as to be compliant with IDEA.

See, FAQs about Section 504, Question 41 (OCR

2009).

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9. Can a Parent Refuse IDEA and

Demand A 504 Plan?

Unclear following ADAAA 2008. Probably no.

Letter to McKethan, 25 IDELR 295 (OCR 1996).

Rejection of FAPE under IDEA is tantamount to

rejection of FAPE under Section 504. Schools

have no obligation to provide Section 504 plan

when a parent has rejected IDEA services.

Have 504 team re-offer IDEA IEP.

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10. How should public schools

determine eligibility for

students with episodic

and/or mitigated

disabilities?

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Examples: ADHD controlled by medication,

cancer in remission, immune deficiencies that ebb

and flow, diabetes controlled by insulin, etc.

Eligibility determination must be based on the

severity of the condition when it is at its most

symptomatic and/or without medication.

Utilize older educational records, medical records,

and teacher/parent input. 41

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IV. SECTION 504 PLAN

Section 504 Plan

Under the 504 regulations, a school district is required to provide FAPE to each qualified handicapped student when such services are required to meet the student’s educational needs as adequately as the educational needs of nondisabled students are met.

34 CFR 104.33(a).

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Section 504 Plan

Services necessary for FAPE are commonly

documented in a “504 Plan”.

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Section 504 Plan

Unlike IDEA, a Section 504 plan does not have

requirements such as goals or objectives, a

transition plan, present educational level, access to

general curriculum rationale, progress reports, or

transfer of rights provision.

Mark H. v. LeMahieu, 513 F.3d 922 (9th Cir. 2008).

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Minimum OCR Requirements for

Section 504 Plan

Nature of disability/major life activity impacted.

Necessary accommodations.

Placement or location of accommodations/services. (LRE)

Beginning date/ending date.

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Section 504 Plan

Goal of plan is not to provide accommodations

sufficient to ensure an equal opportunity and not

equal outcome.

Section 504 Plan

Section 504 does not require a public school to

provide a potential-maximizing educational

program.

J.D. Pawlet Sch. Dist., 224 F.3d 60 (2nd Cir. 2000).

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Evaluation data allows the Section 504 team to distinguish between “parentally-desired” versus “504 required” accommodations.

Legal duty to provide an accommodation solely arises from the evaluation data and not parent demand.

Murfreesboro (TN) School Dist., 34 IDELR 299 (OCR 2000).

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V. Discipline

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Short Term Removals (10 days or less)

- No “change of placement”

Long Term Removals (More than 10

days)

- “Change of placement”

Disciplinary Rules Divide Removals into

Two Separate Sets of Rules or

Limitations

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Do schools have to count days of

ISS as removal days?

ISS will not count towards the 10 day total as long as

the student continues:

to have an opportunity to progress in the general

curriculum;

to receive Section 504 services; and

to continue to participate with non-disabled peers,

and remains on his or her campus.

Dunkin (MO) Sch. Dist., 52 IDELR 138 (OCR

2009).

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A. SHORT TERM REMOVALS

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Basic Short Term Removal Rule

(10 Day FAPE Free Zone)

School personnel may remove a disabled student without services for not more than 10 school days each school year for the violation of a disciplinary rule (to the extent such removals are applied to students without disabilities).

The school system is not required to provide educational services for the first 10 school days in a school year that a student is removed, if services not provided to students without disabilities.

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Short term removals appropriate even if related to student’s disability.

No requirement for a manifestation

determination review or any other procedural safeguard.

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B. LONG TERM REMOVALS

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Long Term Removals

Long term removals (greater than 10 days) trigger

the more elaborate procedural protections such as

the requirement for a manifestation

determination hearing.

Section 504 Alcohol/Drug Exception

Section 504 students lose the right to a

manifestation determination and due process

hearing if they violate drug or alcohol rules and

are determined to be “current users”.

Mere possession of drugs or alcohol would not fall

under this exception.

17 EHLR 609 (OCR 1991).

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C. Manifestation Determination

A manifestation determination conference is

procedurally required if a proposed disciplinary

sanction constitutes a long-term removal/change

of placement.

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Why is M.D. Outcome so important?

If the misconduct is deemed a manifestation of

the student’s disability, the school must return the

student to his regular placement unless the parent

and school decide on a different placement.

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Why is M.D. Outcome so important?

If the misconduct is not found to be a

manifestation of the student’s disability, a school

may apply its regular discipline rules in the same

manner it would do so for a nondisabled student

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Two Questions for M.D. Team

1. Did the conduct bear a direct and substantial

relationship to the student’s disability?

2. Was the conduct the direct result of the LEA’s

failure to implement the student’s IEP?

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Question One

How should IEP Team determine

whether the conduct bore a direct

and substantial relationship to the

student’s disability?

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The commentary to the final IDEA regulations states:

“The revised manifestation provisions in section

615 of the Act provide a simplified, common sense

manifestation determination process that could be

used by school personnel….The Conferees further

intended that “if a change in placement is

proposed, the manifestation determination will

analyze the child’s behavior as demonstrated

across settings and across time when determining

whether the conduct in question is a direct and

substantial result of the disability.”

34 C.F.R. § 300.530(e).

Question Two

How does IEP team properly

determine whether conduct was

due to District’s failure to

implement IEP?

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Failure to implement must be related to the conduct at issue.

The appropriateness of the student’s current plan is not an issue in a manifestation determination.

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