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Chapter 15 Section 504

What does 504 mean to a School District?

September 30, 2014

Maiello Brungo & Maiello

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IMPORTANT!

Every District must have a Section 504 Manual to instruct staff how to implement requirements of Section 504.

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How do I respond?◦ Physician’s diagnosis requires a Section 504 service

agreement◦ Exited from special education requires a Section 504 service

agreement◦ Parent withdraws consent for special education required a

Section 504 service agreement◦ Parent disagreement with a Section 504 evaluation requires

an independent educational evaluation at public expense◦ Parent elects not to attend the Section 504 meeting requires

rescheduling the meeting at parental convenience.

Let’s Get Started!

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Section 504 of the Rehabilitation Act of 1973

Title II of The Americans with Disabilities Act of 1990 (ADA)

The Americans with Disabilities Act Amendments Act of 2008 (ADAAA)

IDEA FERPA

The ActsFederal

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Pennsylvania School Code of 1949 Pennsylvania Nurse Practice Act Pennsylvania Practical Nurse Act Department of Health Guidelines Regarding

Administration of Medications (22 Pa Code, 12.41 Student Services)

Chapter 15

The RegulationsState

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Section 504 is a part of the Rehabilitation Act of 1973 that prohibits discrimination based upon disability. Section 504 is an anti-discrimination, civil rights statute that requires the needs of students with disabilities to be met as adequately as the needs of the non-disabled.

What is Section 504?

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Local Educational Agencies (School District and Charter Schools) that receive federal financial assistance must comply with the implementation regulations at 34 CFR Part 104.

“No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program of activity which receives Federal financial assistance. 34 C.F.R. §104.4(a)].

 

What do the regulations say?

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To be covered under Section 504, a student must be a “qualified” handicapped person as per state and federal law, and must have a disability) [34 C.F.R. §104.3(k)(2)]

Who is covered under Section 504?

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Definition of disability

◦ Prong 3 broken into three parts

Physical or mental impairment

Substantially limits

Major life activity

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3 Pronged Guideline

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Congress directed that the definition of a disability be “construed broadly and that the determination of whether an individual has a disability should not demand extensive analysis”.

The 2008 amendment extensively broadened the eligibility.

Title II ofThe Amendments Act of 2008

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Significant Changes to K-12 Section 504

1. Expansion of Major Life Activities2. Treatment of impairment if it is episodic or

in remission3. Mitigating measures rule4. New definition of Substantial Limitation

Title II ofThe Amendments Act of 2008

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Bending Breathing Caring for one’s self Communicating* Concentrating* Eating Hearing Learning Lifting Performing manual

tasks

Reading* Seeing Sleeping Speaking* Standing Thinking Walking Working

* Added in ADA Amendments of 2008

What is a “major life activity”?

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Major life activities shall include:

The operation of major bodily functions Bladder Bowel Brain Circulatory Digestive Endocrine Immune system Neurological Normal cell growth Respiratory Reproductive functions

More…..

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ADAAA says, “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”•seasonal allergies•migraines•seizure disorder

Episodic or in Remission

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What are they? Something that limits the impact of the

impairment Something usually provided by the parent Something that a student must use in the

school settingi.e. medication, equipment, materials

Mitigating Measures

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Temporary disability–an impairment of less than 6 months

Health Plans-mitigating measures? Impairments that consistently meet the

criteria for a Section 504?

What about these?

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Definition: “…Significantly restricted as to the condition manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner , or duration under which the average person in the general population can perform in the same major life activity….”

Substantial Limits

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◦ Request including Child should be identified as a

protected handicapped student, no longer be, request a modification

Include relevant medical records Reasons why Related aids, services, or

accommodations requested Specific modifications

EvaluationsParent Initiated

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The district shall within 25 school days Send written response Native language Mode of communication Request granted/denied Denied/notice to parents Right to meet with school officials Procedural safeguards

Evaluation TimelineParent Initiated

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Request for consent sent in writing

Identify the procedures and types of tests

Inform parents of their rights

EvaluationsDistrict Initiated

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The district should◦ Establish standards and procedures for the

evaluation and placement, including Tests and other evaluation material Information from a variety of sources including

aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background and adaptive behavior

Medical reports related to physical/mental impairment

Parent information

What is Required for an Evaluation?

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District should have

◦ policies and procedures

◦ current and updated forms

◦ a Section 504 coordinator who is up-to-date

◦ informative sessions with teachers and staff

Must haves

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Evaluations: District should

receive written parental consent provide the parent with procedural safe

guards establish a group of persons who know the

child look at a “variety of sources” native language, if necessary

Must Haves, con’t

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◦ Procedures should include provisions for periodic

reevaluations of students◦ No timeline for conducting reevaluations is

included in law◦ BUT suggested-”…procedure consistent with the

Education for the Handicapped Act is one means of meeting this requirement.”

What about Reevaluations?

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Education for the Handicapped Act

§ 300.303   Reevaluations. (a) General. A public agency must ensure that a

reevaluation of each child with a disability is conducted in accordance with §§300.304 through 300.311—

(1) If the public agency determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant a reevaluation; or

(2) If the child’s parent or teacher requests a reevaluation.

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Education for the Handicapped Act (con’t)

(b) Limitation. A reevaluation conducted under paragraph (a) of this section—

(1) May occur not more than once a year, unless the parent and the public agency agree otherwise; and

(2) Must occur at least once every 3 years, unless the parent and the public agency agree that a reevaluation is unnecessary.

(Authority: 20 U.S.C. 1414(a)(2))

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District must conduct an evaluation Neither the Amendments Act or Section 504

obligates a district to provide aids that the student does not need

The student is still a student with a disability

What about a student who has a disability but does not need related services?

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22 PA Code Chapter 15-15.7◦ In writing-no oral agreements◦ Beginning date-ending date-modification date◦ Related aids, services accommodations

BEC - Implementation of Chapter 15◦ Identifies the duties of the LEA◦ Sample forms

The Service Agreement

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Both the LEA and the parents must sign off on the agreement plan

Reevaluations may be conducted “consistent with the Education for the Handicapped Act …” as a way of meeting this requirement.

More Service Agreement

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Parent’s consent is required for the initial evaluation but not for the reevaluation.

Section 504 does not require that the evaluation be conducted by a team but by a group of persons knowledgeable about the child, evaluation data, and placement options.

Section 504 gives no statement regarding a group meeting to determine disability or placement however does require that a group of persons make the placement decisions.

What is NOT Required

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34 CFR 300.300(b)(4) A parent may revoke consent in writing for his or her child’s receipt of special education services after the parents’ child was initially provided special education and related services…..”

A student is not entitled to a Section 504/Chapter 15 service agreement for services, accommodations or modifications if parents revoke consent for special education programs and services.

Parental Revocation of Consent for Special Education Services

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Either party can use procedural safeguards to resolve dispute◦ File a written request for assistance from PDE◦ PDE will investigate and respond with in 60

calendar days◦ Informal conference within 10 school days◦ Formal due process hearing

Parents and District Disagree

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Under Section 5041. Districts are not required to fund independent

evaluations

OCR indicated…Districts should consider independent evaluations provided by parents when interpreting evaluation data. “The results of an outside independent evaluation may be one of many sources to consider. Multi-disciplinary * committees must draw from a variety of sources in the evaluation process so that the possibility of error is minimized.”

*Group of persons…..

Independent Evaluations

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IEP or Service Agreement Plan504/ADA/15 IDEA/14

ESY ESY

Procedural Safeguards Procedural Safeguards Notice

Judicial intervention Administrative process 1st

Standards/Procedures Timelines

Accommodations Modifications

Three prongs Two prongs

Major life activities 13 categories

Standards/procedures IDEA/Chapter 14 process

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IEP or Service Agreement Plan

504/ADA/15 IDEA/14

NO Goals

Related Aids Related services

Supplementary aids and services Supplementary aids and services

Reg Ed certificate Sp Ed certificate

NO Transition

NO IEE

Physical/mental Sp Ed + SDI

NO Short term objectives

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Issues with service dogs Increased role of the school nurse Increased needs for training,

communications and policies Rethinking eligibility i.e. mitigating

measures Pennsylvania Guidelines for Management of

Food Allergies

Hot Topics

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A dog trained to do work or perform tasks for the benefit of an individual with a disability.

Can only ask two questions: What is the specific task that the dog will

do? Is the dog necessary?

Service Animal

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Invite them to be a member of the group that determines disability and service agreement

Make sure there are procedures on administering medications

Be careful in the delegation of duties

Role of the School Nurse

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Complicated plans lead to comprehensive communications

Stakeholders should be◦ Aware of procedures◦ Trained as necessary◦ Familiar with the service agreement

Communications and Policies

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Review the information from ADA Amendments Act of 2008

Understand your Child Find requirements

Make sure parents are aware of their rights

Rethink Eligibility

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Child Find

Child’s dependence on wheelchair triggers duty to evaluate under 504.

Aurora Public Sch. (CO) (2013)

Child Find

If District believes a first step is to address child’s problem behaviors through classroom-level intervention and keeps a close eye to determine if further formal assessments are necessary – no violation of Section 504.

Demarcus L. v. Bd of Ed of City of Chicago (2014)

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Child Find A District wrongly assumed that a student

with a mood disorder did not need to be evaluated for special education eligibility because he never had academic or disciplinary issues, even though the student’s angry behavior resulted in removal from school and demonstrated a need for psychiatric treatment.

Barnwell Sch. Dist. (S.C.) (2013)

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504 Annual Monitoring Form

How often has student accessed accommodation?

Why would you add accommodations in high school?

Documentation, documentation, documentation! TO add and to remove.

Role of counselors – Annual reevaluations Medical update – annually – ask v. demand

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District-Initiated Evaluation As a ADA Protected Disabled Student

Annual Notice to Parents Procedural Safeguards Service Agreement

District Section 504 Manual!

The Forms

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Section 504 Agreement is

NOT A CONSOLATION PRIZE!

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Legal Implications of 504 Litigation

Direct to federal court bypassing due process.

Financial Risk to District greater than due process. Monetary damages > $500,000

Remedies: ongoing educational services, compensatory education, tuition reimbursement, expert witness fess, may allow attorney’s fees.

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Mark H. v. Lemahieu (2008)

Parents of two autistic children alleged denial of FAPE and prevailed under IDEA. Parents then filed suit under 504 and the Court found

that failure to offer a valid IDEA program may,

but does not necessarily, violate the section 504 duty. Standards are different and case had to be remanded.

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Lyons v. Smith (1993)

A student with ADHD was required to receive 504 services because he was entitled to an

education designed to meet his individual

educational needs as adequately as the needs

of non-handicapped persons are met.

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D.K. v. Abington School District October 11, 2012

Third Circuit Court of Appeals held that claims for compensatory damages under Section 504 are limited by the two year statute of limitations of IDEA.

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K.M. v. Tustin Unified Sch. Dist.(August 6, 2013)

High schoolers with hearing disabilities with IEPs alleged that the District had an obligation under Title II of the ADA to provide them with a word-for-word transcription service.

Major case that found that compliance with IDEA does not doom all 504 claims.

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T.F. v. Fox Chapel Area School District (November 5, 2013)

District did not discriminate against a student with a severe tree nut allergy in violation of Section 504 finding that the District had offered reasonable accommodations and was not deliberately indifferent to the parents’ claims of peer harassment. Also concluded that the District did not retaliate against the parents when a truancy petition was filed after parents withdrew student from school.

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Student alleged 7 yrs of isolation, lack of education and emotional distress; seeking $500,000.

•Electrical shocks from hearing devices.•CART – transcribes spoken words to text•Forced to skip 8th grade and go to 9th grade AWAITING DECISIONSA Creighton Medical Student did not prevail

because discrimination was not intentional but court awarded attorney fees of $449,000.

McCurtrey v. St. Charles School District (MO) (June 6, 2014)

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North Kitsap Sch. Dist. (WA) (2013)

A teacher documented with emails and staff testimony that 504 plan was followed and District prevailed.

English teacher was able to prove she properly implemented 504 plan through evidence of her email communications with parent!

DOCUMENTATION!

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Burlington School District (VT)(2013)In District’s best interest to periodically verify

that its educators review and understand what services they must provide under the 504 Agreement.

Here district did not realize a music teacher failed to provide student with adequate printed materials required by 504. District immediately remedied and complaint dismissed.

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EK v. Warwick Sch. Dist (PA)(2014)Parent of a teenager with ADHD and

substance abuse problems could not recover the cost of student’s placement in a residential treatment facility. District offered student FAPE with highly structured services and resources within the school setting.

Substance abuse has no connection to student’s disability.