The Ins and OutsThe Ins and Outs of Section 504

Karen HaaseHarding & Shultz

(402) 434-3000 H & S School Law( )khaase@hsdlegal.com @KarenHaase

Primary Differences B t S ti 504Between Section 504

and IDEAand IDEA

General Education Students Section 504 Students IDEA Eligible Students IDEA Eligible Students

Primary Differences 504 defines disability more broadly IDEA guarantees student “FAPE” 504 designed to eliminate barriers 504 designed to eliminate barriers IDEA designed to provide g p

specialized programs and remediationremediation

Primary Differences 504 = easier to qualify IDEA = more services and other

educational entitlementseducational entitlements

Similarities School districts must evaluate and

determine eligibility Both may require (if student needs)y q ( )- transportation, - accommodation/modification- related services

Both require students o equ e s ude sbe educated in the least restrictive environmentrestrictive environment

When is a district required to make a 504 referral?

When district believes that the student has a physical or mental impairmenthas a physical or mental impairment that substantially limits one or more major life activities ANDmajor life activities AND

Student is in need either regular ed with supplementary services or special ed. and related services

Letter to Mentink, 19 IDELR 1127 (OCR 1993)

“Disability” as Defined by Section 504

A person has a disabilityA person has a disability under Section 504 if he or she has a mental orshe has a mental or physical impairment, has a record of sucha record of such impairment, or is regarded as having suchregarded as having such an impairment which substantially limits onesubstantially limits one or more major activities.

504 Protects Episodic Impairments

Asthma Chron’s Disease Chron s Disease IBS Any other disease that can “come and Any other disease that can come and

go” or has good and bad ddays

Mitigating Measures Don’t Count

A student may be eligible under Section 504 even if the student’sSection 504 even if the student’s disability or condition is controlled or mitigated, whether by medication, technology, etc.medication, technology, etc.

Examples of Mitigating Measures

Medication Medical supplies, equipment, appliances

L i i d i (NOT di l Low-vision devices (NOT ordinary eyeglasses or contacts)

Prosthetics Hearing aids/cochlear implants Learned behavioral or adaptive neurological

difi timodifications Reasonable accommodations or other auxiliary

aids or services

What about Temporary Impairments?

A “transitory impairment” is defined as an impairment with an actual or

d d i f i h lexpected duration of six months or less. “Any impairment the duration of

i i iwhich is less than six months would not constitute a disability.” James A. Garfield (OH) Local School Dist 52Garfield (OH) Local School Dist., 52 IDELR 142 (OCR Feb. 19, 2009).

Is it possible for a student to be 504 in one district and not

li ibl i th ?eligible in another? Yes Yes Each district is responsible for p

determining for itself what the phrase “substantially limits” meansphrase substantially limits means

Letter to McKethan, 23 IDELR 504 (OCR 1994)

What about a transfer student with a 504 plan?

Safe course: replicate student’s services received in the old district while staffreceived in the old district while staff evaluates studentAft f k d t 504 After a few weeks, conduct 504 reevaluation─Change plan as necessary─Remember, student may not even qualify

here as “substantially limited”

Can we just provideCan we just provide modifications without creating

a 504 plan? No Remember: disability education law

is often more about PROCESS not RESULTS

Can a student’s absences trigger a 504 referral and evaluation?

Yes If districts suspects absences are due p

to a disability, the district should refer and evaluaterefer and evaluate

Note that just because a student has a disability does not mean all thea disability does not mean all the absences are disability-related

Do kids who are not meeting their potential get 504 plans?

A child’s failure to perform to his/her potential is not sufficient reason for referral and evaluationreason for referral and evaluation

Key is education benefit J ff P i h (LA) P bli S h l 16 EHLR 755 (COR 1990)Jefferson Parish (LA) Public Schools, 16 EHLR 755 (COR 1990)Hendrik Hudson District Bd. of Ed. v. Rowley, 458 U.S. 176, 207

n. 28 (1982)

Are passing grades enough proof of education benefit?

Not alwaysy Social promotion is not enoughD l d S h l C (IN) 31 IDELR 222 (S i lDuneland School Corp. (IN), 31 IDELR 222 (Special

Education Hearing Officer 2000)

Process for EligibilityReferral for evaluation (can be

parent or educator)Procedural SafeguardsProcedural SafeguardsMeeting with 504 teamgParental consent required to

d t l ticonduct an evaluation.EvaluationEvaluation Conference

Accommodations vs. ModificationsModifications

Accommodations• Basis for Section 504

D t h h t i b i• Do not change what is being measured

Modifications• Basis for IDEA• Do change what is being• Do change what is being

measured

Accommodation ExamplesDiabetic• Bathroom Pass• Water, Snacks Allowed• Check blood sugar when needed• Trips to Nursep

ADDE tended Time & Separate Setting• Extended Time & Separate Setting on TestsP f ti l ti• Preferential seating

Do parents have a right to be th 504 C itt ?on the 504 Committee?

Regulations do not require physical participation on the committeeparticipation on the committee

District is required to solicit parental input and to communicate with parentinput and to communicate with parent

Whether to invite parents or not is a decision to be made by the district. Once made, it must be consistently implemented

Edmonds (OK) Public School, 31 IDELR 242 (OPCR 1999)

Do students with IEPs also need 504 plans?

No. 504 t IDEA t d t f 504 prevents IDEA student from being discriminated against, but only g g , yIDEA students are entitled to FAPE.D l i d IEP ti fi Developing and IEP satisfies obligations under 504g

Letter to McKethan, 25 IDELR 295, 296 (OCR 1996)

Do students dismissed from SpEd always get 504 plans?

No. Student eligibility for services depends on whether he/she has a current physical or mental impairment which p y psubstantially limits one or more major life activities

But student is entitled to non-discrimination protection because has adiscrimination protection because has a history of disability.

Can a Parent Demand a 504 Plan instead of an IEP?

No When a child qualifies under

IDEA district satisfies theIDEA, district satisfies the provisions of 504 through the IEP

Letter to McKethan, 25 IDELR 295, 296 (OCR 1996)Lyons v. Smith 20 IDELR 164, 167 n. 11 (DCDC 1993)

Re-evaluationRe evaluation “Periodically” re-evaluate; OR, before e od ca y e eva uate; O , be o e

any significant change in placement To satisfy “periodic” requirement re- To satisfy periodic requirement, re-

evaluate no less than every three years, more often if other circumstancesmore often if other circumstances indicate (i.e., worsening of condition)Si ifi t h i l d l i Significant change includes exclusion for more than ten school days for di i lidisciplinary reasons.

Discipline of Section 504 Students

The principal breaks up a fight that Freddy is involved in

Principal also confiscates a knife from FreddyFreddy

Past practice long term suspension for fight- long term suspension for fight- expulsion for weapon

504 Disciplinary Process504 Disciplinary Process Manifestation Determination Review Manifestation Determination Review

meeting is required Parents and relevant staff members attend Parents and relevant staff members attend If related, student may not be recommended

f l i b l i lfor expulsion, but alternative placement may be considered

If unrelated, student may be recommended for expulsion without IAEP services

Enforcement

No state agency charged with monitoring or enforcing compliance with Section 504compliance with Section 504

U.S. Department of Education’s Office for Civil Rights (OCR) is responsible for ensuring school p gcompliance with Section 504.

OCR’s Region VII (Kansas City OCR’s Region VII (Kansas City, MO) serves NE

The Ins and OutsThe Ins and Outs of Section 504

Karen HaaseHarding & Shultz

(402) 434-3000 H & S School Law( )khaase@hsdlegal.com @KarenHaase