1 SECTION 504 (One of the most vague, gray area pieces of legislation ever……..and getting worse everyday!) (Revised June, 2015) © Mary Moren
2 The Legislation… Section 504 of The Rehabilitation Act of 1973Federal law that protects the rights of students with disabilities and ensures they have equal access to an education (anti-discrimination legislation) Regulated by Office for Civil Rights (OCR) © 2015 – Mary Moren
3 Legislation – con’t American with Disabilities Act Amendments Acts of (Effective January 1, 2009) Broadens the interpretation of a disability “Dear Colleague” letter written in January of provided clarification on Amendments Act of 2008 However, constant clarification is needed © Mary Moren
4 504 Language - Federal Regulations“No otherwise qualified individual with a disability in the United States…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” 29 U.S.C. §794 That’s it…….that’s all it says Originally designed for the workplace © 2015 – Mary Moren
5 Protection Under Section 504A person must be determined to: Have a physical or mental disability that substantially limits one or more life activities, or Have a record of such an impairment, or Be regarded as having such an impairment The last two do not apply to educational settings. © 2015 – Mary Moren
6 BECAUSE…… The last two prongs of that definition are meant to be used in situations where individuals either never were or are not currently handicapped, but are treated as if they were. These are most often used in the workplace. It is exceedingly rare for them to be used in elementary or secondary education. They CANNOT be the basis upon which the requirement of FAPE is triggered. © 2015 – Mary Moren
7 So for Educational Settings……A student must have a physical or mental disability that substantially limits one or more major life activities or major bodily functions. AND BE REMINDED The disability does not necessarily have to impact learning © 2015 – Mary Moren
8 Physical or Mental Impairments That Substantially Limit a Major Life ActivityMust be made on the basis of an individual inquiry. Defined as any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. **The above mentioned conditions are not exhaustive © 2015 – Mary Moren
9 Just What is a Major Life Activity?Functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. In the Amendments Act, Congress provided additional examples of general activities that are major life activities, including eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. Congress also provided a non-exhaustive list of examples of “major bodily functions” that are major life activities, such as the functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. ** The above mentioned life activities are not exhaustive © 2015 – Mary Moren
10 Now…How to Determine Substantially Limits…Determination of substantial limitation must be made on a case-by-case basis with respect to each individual student. Congress directed that the definition of “disability” shall be “construed broadly and should not demand extensive analysis.” They, however, will not define it for us. “An impairment need not prevent or severely or significantly restrict a major life activity to be considered substantially limiting.” © 2015 – Mary Moren
11 Determining Disability per Section 504 Requirements504 Committee (constant members and kid-specific members) Include people knowledgeable about the student Must draw from a variety of sources to minimize error and maximize information Information from all sources must be documented and all significant factors CONSIDERED © 2015 – Mary Moren
12 Determining Disability per Section 504 RequirementsBE AWARE You cannot delay your meeting (after a reasonable amount of time) waiting to obtain additional information, such as medical documentation. Make your decisions based on the information you have. © 2015 – Mary Moren
13 Data That Could be IncludedTeacher recommendations/narrative Classroom Observations Physical conditions Social & cultural background Medical diagnosis Evaluations from outside agencies Aptitude and/or achievement tests Grades Attendance ** the above is not an exhaustive list © 2015 – Mary Moren
14 A Point of Serious ConfusionTHIS IS A BIG ONE Keep in mind, disability determination (in other words, being 504 eligible) and needing a 504 accommodation plan are TWO entirely separate things. It is conceivable to have quite a few students who are 504 eligible (have a disability) who DO NOT need an accommodation plan. “TECHNICALLY ELIGIBLE” There is a tremendous amount of confusion around this issue. Be careful of semantics. © 2015 – Mary Moren
15 Determining the Need for a 504 PlanFree and Appropriate Education (FAPE) FAPE is defined in the Section 504 regulation as “the provision of regular or special education and related services that are designed to meet the individual needs of persons with disabilities as adequately as the needs of nondisabled persons are met, and that are provided without cost (except for fees imposed on nondisabled students). A school district’s obligation to provide FAPE extends to students with disabilities who do not need special education but require a related service. For example, administering a medication that a student is unable to self-administer.” © 2015 – Mary Moren
16 Determining Need for a Plan – con’t.Section 504 requires schools to provide to students with disabilities appropriate educational services designed to meet the individual needs of such students to the same extent as the needs of students without disabilities are met, HOWEVER, a student could be found to be Section 504 eligible (found to be disabled) but not in need of an accommodation plan. (again…. “technically eligible”) Accommodations (if needed) must coincide with the area of disability and the major life activity that is limited. © 2015 – Mary Moren
17 Determining Need for a Plan – con’t.Access is a key word. Accommodations would be necessary only when they would be required for a disabled student to have equal access to education. Equal access does not mean “extra”, nor is it for the purpose of an advantage. Just because a medical provider “prescribes” or recommends something….or a parent requests (or demands) something does not mean we are obligated to provide it. © 2015 – Mary Moren
18 Determining Need for a Plan – con’t.We are legally obligated to provide only what is necessary for equal access. Information and expertise are key. Deliberate consideration is critical to the process. We cannot provide accommodations solely for the purpose of testing. They must be necessary during regular instruction and utilized routinely. Students are not disabled just on test day. Testing accommodations are a by-product of regular instruction accommodations. © 2015 – Mary Moren
19 Procedures Procedures are not specified by Federal government, but recommendations are made. Case law drives the recommendations. Courts are constantly overriding one another, so it keeps 504 recommendations “fuzzy.” LEA’s must create their own procedures. Hopefully school systems are constantly reviewing their procedures based on the latest case law. © 2015 – Mary Moren
20 Solid 504 Procedural PracticeReferral (teacher or parent) Prior notice and consent to evaluate sent to parent Consent from parent is required in order to evaluate Make sure parents get a copy of “parent rights” Data is gathered (including medical screening if available). Medical diagnosis not required, but helpful. If you require it, you must be willing to pay for it. © 2015 – Mary Moren
21 Procedures, continued 504 Committee (make sure to invite parent, BUT parent does not have to be present for you to meet) meets to determine eligibility, (and to determine the necessity of an accommodation plan.) If plan is necessary, it is often written at this meeting. Parental consent is required to put a 504 plan in place. Copy of eligibility notification given to (or sent home) to parent All parties get copy of 504 plan © 2015 – Mary Moren
22 Procedures, continued Have teachers sign an acknowledgement of receipt of plan 504 plans (you do not have to review if there is no plan and the child is only “technically eligible”) are reviewed annually (OCR says periodically) 504 eligibility is reevaluated triennially (could occur sooner if needed)…(OCR says periodically) © 2015 – Mary Moren
23 Compliance 504 Plans are backed by Federal legislation (just like an IEP) and compliance is required. However, 504 has no funding. OCR has been given authority to enforce Section 504. RE teachers MUST implement the provisions of a Section 504 plan explicitly as it is written when those plans govern the teachers’ treatment of student for whom they are responsible (FAQ 39). © 2015 – Mary Moren
24 Current Issues of Interest to OCRRelative to students with disabilities: Evaluation of students with food allergies and other health issues Determining technology needs Access to athletic programs and activities Reducing discriminatory bullying, harassment and violence © 2015 – Mary Moren
25 Legal Considerations Litigation has skyrocketed, up 400% in many states Plaintiff cases ARE moving toward 504 as monetary damages are being awarded vs. IDEA where the awards are typically compensatory education RTI and litigation (may not delay or deny) ANYTHING you write about a child is considered, “discoverable”…even if it is on your personal computer, or scribbled personal opinions on the margins of a notebook. DO NOT write anything you don’t want others to see © 2015 – Mary Moren
26 Legal Considerations – con’tProcedure is critical. OCR wants to see a written procedure that is adhered to completely “Deliberate Indifference” - especially as it relates to “child find” and bullying……..a word about Health Care Plans In court proceedings, one thing they look at is, “Conscience Shocking”. Those things that make you gasp because they are so appalling (and/or just plain stupid) © 2015 – Mary Moren
27 504 is NOT a consolation prizeStill confused………. Having to do with a parent who revokes EC services once child is found eligible and requests a 504 plan instead. (letter to McKethan, 1996) Latest circuit court proceedings have completely muddied those waters….some courts ruling one way, while others rule the other way For you to decide…but wisdom suggests airing on the side of caution REMEMBER 504 is NOT a consolation prize © 2015 – Mary Moren
28 More confusion……IDEA & 504If a child is protected under IDEA, he/she is concurrently protected under 504, HOWEVER, you never have an IEP AND a 504 plan. IEP trumps all. An IEP would address every NEED a child might have relative to “access”, even if it is not related to the area of eligibility….for example, speech only kids. This is not a particularly new concept but has rarely been discussed and is a potentially contentious issue between Reg. Ed. and EC. © 2015 – Mary Moren
29 BUT….. The Language of the LawThe language is clear…. “IDEA explicitly addresses accommodations for issues not commonly linked to the disability category.” The IEP should address global NEEDS © 2015 – Mary Moren
30 Rule of Thumb if UncertainIf a student were not EC in any way, and 504 were under consideration….if in the 504 evaluation it is determined that the child REQUIRES accommodations for equal access, then apply that logic to an EC student with needs outside the area of eligibility in determining the need for additional accommodations. You do not necessarily have to have a “goal” related to these particular accommodations. © 2015 – Mary Moren
31 Final Thoughts Questions?Section 504 Plans are “living, breathing documents” Can be amended , “tweaked” to best meet the student’s needs EVERYTHING you need should be in your 504 manual. (assuming you have one…and if you don’t have one, you need to create one) When things get really whacky, be in touch with your 504 System Coordinator. Questions? © 2015 – Mary Moren