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Section 504 of the Rehabilitation Act: Everything You Ever Wanted To Know

(And a Few Things You Didn't!)

Section 504 of the Rehabilitation Act: Everything You Ever Wanted To Know

(And a Few Things You Didn't!)

Presented by

Nina Guptanina.gupta@nelsonmullins.com

404.322.6109

Presented by

Nina Guptanina.gupta@nelsonmullins.com

404.322.6109

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Section 504 – What It Says

“No otherwise qualified individual with a disability shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”

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DEFINITION OF DISABILITY

A physical or mental impairment that substantially limits one or more major life activities

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Physical Impairment

Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems: neurological; musculo-skeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine

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Mental Impairment

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

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“Major life activity”

Prior to January 2009—Major life activities must be considered as a whole (e.g. learning), not in a particular class (e.g. math) or for a particular sub-area (e.g. socialization or test-taking).

ADA Amendments (2008) expanded definition to include: seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working, as well as operation of a major bodily function

This list is non-exhaustive

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“Major life activity”

Courts have also added to the list of “major life activities”

Sitting

Stooping

Reaching

Eating

Procreating

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Substantial Limitation: The Early Years

Courts stated that an individual was “substantially limited” in a major life activity when she was “significantly restricted” from performing the activity Albertson’s v. Kirkinburg, 527 U.S. 555 (1999):

monocular vision did not “significantly restrict” seeing, so the individual was not “substantially limited” and therefore not “disabled”

Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002): carpal tunnel syndrome did not result in an employer being “significantly restricted” from any major life activity, so she was not “substantially limited” and therefore not “disabled”

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Substantial Limitation (until January 2009)

A student is substantially limited in a major life activity when he or she is (1) unable to perform a major life activity that average person in the general population can perform or (2) is significantly restricted as to the condition, manner or duration under which he or she can perform the major life activity as compared to the condition, manner, or duration under which average person in the general population can perform that same major life activity.

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Substantial Limitation

Now, they just need to be "substantially limited"

When determining if an individual is “substantially limited,” consider:

The nature and severity of the impairment

The duration or expected duration of the impairment

The permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment

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Substantial limitation under ADA 2008

ADA 2008 sets a lower standard than “significantly restricted”– but Congress won’t tell us what the new standard is!

Determining “substantial limitation” should not be a difficult task or require extensive analysis

When in doubt, err on the side of protection under Section 504

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“Substantial Limitation” Redefined

New EEOC Regulation

An impairment is a disability within the meaning of this section if it “substantially limits'' the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability.”

“The term ‘substantially limits’ shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. ‘Substantially limits’ is not meant to be a demanding standard.“

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Episodic Impairments

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

Examples: epilepsy, hypertension, multiple sclerosis, asthma, cancer, and psychiatric disabilities such as depression, bipolar disorder, and post-traumatic stress disorder (this is a non-exhaustive list)

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Mitigating Measures The Early Years

Courts stated that you should consider whether the individual is “substantially limited” after taking into account the effects of mitigating measures Sutton v. United Air Lines, 527 U.S. 471 (1999): pilots

with corrected low vision were not “disabled” because their vision was corrected with glasses

Murphy v. United Parcel Service, 527 U.S. 516 (1999): a mechanic whose high blood pressure was corrected with medication was not “disabled”

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ADA AmendmentDecember 2008

Schools (and any other entity subject to Section 504) may NOT consider the ameliorating effects of mitigating measures

In plainer words—We can no longer consider the measures taken by the child to compensate for a disability as a factor to determine ineligibility

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Mitigating Measures

Examples (not an exhaustive list)

Tutoring

Medication

Coping skills

Hearing aids

Prosthetic devices

Low vision devices (but ordinary eyeglasses and contact lenses are exempt)

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How do you ignore medication as a mitigating measure???

Look at records before medication started

Ask parents for information about functioning before medication

Work with parents’ MD (with permission) to learn why medication prescribed

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Examples of Disabling Conditions

EEOC regulations state that some impairments will “consistently meet the definition of disability”

Deafness

Blindness

Intellectual disability

Partially or completely missing limbs

Mobility impairments requiring the use of a wheelchair

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Examples of Disabling Conditions

Other impairments that will “consistently meet the definition of disability” and some major life activities they may substantially limit under the new EEOC regulations (not an exhaustive list)

Autism (communicating, interacting with others, learning) Cancer (normal cell growth) Cerebral palsy (walking, performing manual tasks, speaking, function of

the brain) Diabetes (functions of the endocrine system, such as producing insulin) Epilepsy (functions of the brain or, during a seizure, seeing, hearing,

speaking, walking, thinking) HIV/AIDS (functions of the immune system) Multiple sclerosis and muscular dystrophy (neurological functions,

walking, performing manual tasks, seeing, speaking, thinking) Major depression, bipolar disorder, post-traumatic stress disorder,

obsessive compulsive disorder, or schizophrenia ( functions of the brain, thinking, concentrating, interacting with others, sleeping, or caring for oneself)

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PROTECTION

vs.

ACCOMMODATION

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SECTION 504 PROTECTION

A school district may not deny any disabled student any benefit of the school district, solely due to the child’s disability

Example: a school district cannot prohibit a diabetic student from attending a field trip because it cannot or will not accommodate her medical condition

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SECTION 504 ACCOMMODATION

At times, a school district must also provide accommodations to “level the playing field” so as not to discriminate on the basis of disability

504 accommodations require a school district to affirmatively change its conduct and “add on” to its package of services to meet the needs to students with disabilities

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EXAMPLE

Suzy has been privately diagnosed with ADHD. When she was first diagnosed, she was very forgetful and scattered. She often lost her homework and had great difficulty paying attention in class. Since she has started medication, her symptoms are fully controlled.

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EXAMPLE

Is Suzy eligible for protection under Section 504?

A. Yes. Without her medication, she is substantially limited in the major life activity of concentration.

B. No. Her medication completely controls any symptoms so her ADHD no longer has any impact.

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EXAMPLE

Is Suzy eligible for a Section 504 plan with accommodations?

A. Yes. Because she is a child with a disability under Section 504, she must receive a Section 504 plan and accommodations.

B. Yes. Although Suzy is doing well, accommodations would help her do even better.

C. No. Suzy’s symptoms are controlled such that she does not require accommodations to level the playing field.

D. No. Suzy isn’t eligible for anything under Section 504 because there is no visible impact of her ADHD at school.

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EXAMPLE

Daniel has been diagnosed with autism. While he is quite intelligent, he has difficulty staying focused. He does much better when he is allowed movement breaks.

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EXAMPLE

Is Daniel eligible for protection under Section 504?

A. Yes. He has a diagnosis of autism, and that automatically qualifies him for protection under Section 504.

B. Yes. His autism substantially limits a major life activity.

C. No. Autism is not a physical or mental impairment.

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EXAMPLE

Is Daniel eligible for a Section 504 plan?

A. Yes. He requires the accommodation of movement breaks to level the playing field.

B. No. He needs to learn to focus on his own. He could focus if he just wanted to and tried hard enough.

C. Yes. Since he has been diagnosed with autism, he is automatically eligible for a Section 504 plan.

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Section 504 Requirements

LRE

Nondiscriminatory assessment

Procedural safeguards

Does DeKalb have a written notice of parent rights under Section 504? I hope so!

Identify eligible children

Equal opportunities for all activities

Provide FAPE

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504 Process – Referral

Referral

Parent or school may refer

Even if parent does not express concerns, it is ALWAYS the school’s duty to refer any child suspected of having a disability

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504 Process – Evaluation

Determine whether child has disability

Determine nature and extent of any needed services

Conducted within a “reasonable time”

Get information from a variety of sources

Document and consider all pertinent information

Conducted by a group of knowledgeable people

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504 Process – Eligibility

Without regarding to mitigating measures, does the child have a physical or mental impairment that substantially limits a major life activity?

Does child have a history of such an impairment?

Is the child regarded as having such an impairment?

If the answer to any of the above 3 questions is “yes,” the child is a child with a disability under Section 504

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504 Process – Individual Planning

If the 504 team determines that the child requires accommodations, develop plan accordingly

Reasonable accommodations that do not change the essential nature of the activity

Not necessarily the accommodations that the parents want!

Accommodations are designed to level the playing field, not give an undue advantage

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504 Process – Accommodations

Some common accommodations

Extra time on tests/assignments

Preferential seating

Reduced assignments

Frequent breaks

For testing accommodations

Must be on a “Section 504” plan even if they do not directly relate to the test itself!

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504 Process – Re-evaluation

Must re-evaluate prior to a change in placement (like exiting from a 504 plan, or moving levels within the school system)

Re-evaluations should occur “periodically”Following IDEA’s three-year re-evaluation

requirement will satisfy Section 504You should always re-evaluate if:

Child moves to a new school and environment changes Dramatic shift in grades or behavior Dramatic improvement suggesting child may no longer require

services

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504 Discipline Protections

School may not suspend a child with a disability for more than 10 school days without a manifestation determination (borrowing from IDEA)

This applies to disabled children who are entitled to protection but do not require a Section 504 plan!

Was the behavior caused by, or did it have a direct and substantial relationship to, the disability?

Was the behavior a direct result of the school’s failure to appropriately implement the educational plan?

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504 Discipline Procedures

If the behavior is a manifestation of the disability School may not impose discipline (exception for

weapons or serious bodily injury, in which case a school may suspend for up to 45 school days without regard to whether the conduct was a manifestation)

Section 504 team must determine if current educational planning is appropriate

Consider conducting an FBA

Consider IDEA eligibility if appropriate. Is there indication that the child needs specialized instruction, not just accommodations?

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504 Discipline Procedures

If the behavior is NOT a manifestation of the disability

School may impose the same punishment it would impose on a non-disabled student

No requirement to continue educational services during suspension/expulsion, unless services would also be provided to non-disabled students

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Special Considerations for Drug and Alcohol Offenses

Schools may impose discipline for alcohol/drug use to the same extent as for nondisabled students, even if the offense is a manifestation of the disability

Drug or alcohol addiction may be considered a "disability" under Section 504, BUT

Students who are currently using alcohol or illegal drugs are excluded from eligibility under Section 504, even if they are otherwise disabled

"Possession" is not the same thing as "use"

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What else does Section 504 do? Protection from discrimination on the basis of disability

Right of otherwise qualified students with disabilities to participate in a school district’s services

Right of disabled students to receive accommodations through a Section 504 plan

Protection from retaliation for engaging in protected activity

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What is retaliation?

Includes acts that “intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with rights” under Section 504

Does your school district have a Statement of Section 504 Rights???

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Who is protected against retaliation?

Students with disabilities

Example: You cannot give a child a lower grade on a test because he used his accommodation of extended time

Example: You cannot exclude a child from a school activity because his parent filed a complaint against the school district

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Who is protected against retaliation?

Parents of students with disabilities

Example: You cannot prevent a parent who advocates for her child from volunteering in her child’s classroom, if your decision is motivated by her advocacy

Example: You cannot apply policies or procedures differently for parents of children with disabilities solely because their children are disabled (like classroom observations, invitations to school events, etc.)

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Who is protected against retaliation?

Employees

Example: You cannot fire or otherwise discipline an employee for participating in an investigation conducted by the Office for Civil Rights

Example: You cannot discipline an employee for explaining Section 504 rights to parents

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Who is protected against retaliation?

Parents who are also employees

Example: You cannot fire an employee for filing a Section 504 complaint regarding their disabled child

Example: You cannot refuse to hire an individual who has a disabled child enrolled in the school district

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How does an individual show retaliation?

An individual must show the following:

She was engaged in protected activity (advocating for her child, filing an OCR complaint, etc.)

She suffered some adverse action around the same time (restricted access to teachers or school, reassignment to less desirable job position, etc.)

The school district was aware of the protected activity

Evidence of a causal connection between the protected activity and adverse action

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Legal remedies

Local grievance hearings

OCR complaints

Federal litigation

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Local Grievance Hearings

Statewide Resolution Agreement with OCR

Review of local hearing procedures

Does your school district have a statement of hearing procedures?

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OCR Complaints Free for both parties

OCR obtains information from both parties

Request for written information

On-site interviews with witnesses

OCR acts as neutral third party

Outcomes

No evidence of non-compliance (we like these!)

Resolution agreements in the event of non-compliance

Loss of federal funding!

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Federal Litigation Rare, but possible

Federal Section 504 claims are usually add-on claims

Jury trial possible

Possibility of monetary damages and award of attorney fees

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Questions?

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THANK YOU!