1 section 504 of the rehabilitation act yell / the law and special education, second edition...

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Section 504 of the Rehabilitation Act

Yell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved

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A Few Important Things…

• Section 504 is NOT a special education law

• Section 504 is a civil rights law

• Section 504 is not as specific a law as the IDEA

• Section 504 contains no funding


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The History of Section 504

• Congressman Vanik from Ohio and Senator Humphrey from Minnesota proposed this amendment to the Rehabilitation Act of 1973

• Every department within the executive branch of the federal government has regulations implementing the law

• Because virtually every school district in the country accepts federal funds, public education is directly affected.


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The History of Section 504

• Schools have not paid much attention to Section 504 until the last few years

• Why the increased attention?– Emergence of disabilities not covered by the

IDEA (ADHD, ODD)– The passage of the ADA (1990)– Parental awareness– Enforcement by the Office of Civil Rights (OCR)


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What is Section 504?

• Section 504 is a brief, but powerful nondiscrimination law included in the Rehabilitation Act of 1973

• Section 504 extends to individuals with disabilities the same kinds of protections Congress extended to people discriminated against because of race and sex


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“No otherwise qualified individual with a disability…shall, solely by reason of his or her disability, 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(a)(1996)


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What is Section 504?

• A civil rights mandate– Section 504 prohibits discrimination– The responsibility not to discriminate

applies to all school personnel – Special educators do NOT have primary

responsibility for Section 504– Primary responsibility falls on district-and

school-level administrative leaders and regular education


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Who is Protected by Section 504?

Any person who has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment


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Physical Impairment

• Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems


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Examples of Physical Impairments

• Epilepsy• AIDS and HIV• Allergies• Arthritis• Heart disease• Tourette syndrome• Cerebral Palsy

• Visual impairment• Broken limbs• Cancer• Diabetes• Hemophilia• Temporary conditions

due to accidents or illness


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Mental Impairment

• Any mental or psychological disorder, such as mental retardation, organic brain disorder, emotional or mental illness, and specific learning disability


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Examples of Mental Impairments

• ADD/ADHD• Reading disability• Depression• Eating disorders

• Conduct disorders• Past drug/alcohol

addiction• Social maladjustment


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Major Life Activities

• Breathing• Walking • Talking• Seeing• Hearing• Learning• Taking care of oneself


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Otherwise Qualified

• Applied to public education, otherwise qualified means of public school age

• When competitive criteria are applied. otherwise qualified means that the criteria are met in spite of the disability

• In employment, the person should be qualified in spite of his or her disability


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Section 504 Students

Who is Protected by Section 504?

IDEA Students

All Public School Students


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What Does Section 504 Require?• That public schools do not discriminate against

individuals with disabilities– This includes students, parents, teachers, and school staff

• Discrimination refers to unequal treatment of qualified persons solely on the basis of their disability

• The law protects students with disabilities from lack of equal opportunities to benefit from educational programs and facilities

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Ways in Which Schools Discriminate

• By failing to provide physical access to programs or facilities

• By imposing double standards for eligibility for extracurricular activities

• By failing to design regular classroom programs to meet a disabled student’s individual needs as adequately as the needs of a nondisabled student are met


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What Does Section 504 Require?

• Program accessibility– All educational programs must be

accessible to those who need them– Not every room or program in a school

building must be accessible to all students if the building or program as a whole is accessible


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Violations!!

• Denying a student with a disability the use of educational programs or facilities because they are physically inaccessible to the student– Denying a student with physical disabilities the

opportunity to take a class because it is not accessible to him or her

– Denying parents with hearing impairments the opportunity to participate in PTA because the school does not provide an interpreter


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• Comparable facilities– If a school operates a separate facility for

students with disabilities, this facility must be comparable to the district’s other facilities

– Comparable in terms of space, location, instructional appropriateness, accessibility, size, lighting, ventilation, temperature, etc.


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Violations!!

• Establishing classes for students with disabilities in areas that are not conducive to learning– Storage rooms, partitioned areas– Inadequate classrooms (e.g., small, no heat) and

facilities in the classroom (e.g., no bathrooms)

• Students with disabilities can share in sacrifices made by all students but cannot be singled out for more than their share of such sacrifices


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• Free Appropriate Public Education (FAPE)– Each student who is disabled under

Section 504 must be provided with regular or special education and related aids and services designed to meet his or her individual educational needs as adequately as the needs of nondisabled students are met


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Additional Components of a FAPE

• Evaluation: Any student believed to need services because of a Section 504 disability must be evaluated before initial placement

• Individualized education: Students served under Section 504 must have an individualized accommodation plan that details the services provided


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Additional Components of a FAPE

• Least restrictive environment: Students with disabilities must be educated with students who are not disabled to the maximum extent appropriate

• Due process procedures: Provides that the LEA must provide an impartial hearing for a parent who disagrees with the identification, evaluation, programming, or placement


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Examples of FAPE Violations

• Failing to provide adequate staff training, equipment, and facilities for 504 student

• Failing to educate the student in the LRE

• Failing to provide related services because the needed services were unavailable and the district believed the services were too expensive


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• Failing to carry out agreed recommendations to address the behavior of a student

• Failing to carry out provisions of a student’s IEP

• Failing to carry out provisions of an IEP because the paraprofessional who was to implement the plan was frequently absent


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• Failing to provide students with disabilities with properly trained teachers

• Failing to give a student with disabilities the services listed in his or her 504 plan

• Failing to provide the full amount of services called for in the IEP or 504 plan

• Shortening the school day without considering the needs of a student


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• Procedural responsibilitiesAppointment of a 504 coordinatorGrievance proceduresStaff training


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Section 504 Coordinator

• Ensures that the district complies with Section 504

• Establishes and maintains the grievance procedure

• Ensures that everyone understands Section 504

• Notifies the public of LEA responsibilities


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Grievance Procedure

• School districts must establish a grievance procedure

• These procedures must provide prompt and equitable solutions for complaints

• Employees and parents


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Staff Training

• All staff, faculty, and administrators should understand their rights and responsibilities under Section 504

• Section 504 coordinator is responsible for training


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How is Section 504 Enforced?

• Section 504 hearing• The Office of Civil Rights of the Department

of Education – Provides technical assistance– Conducts compliance investigations– Investigates complaints of discrimination

• Litigation


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Section 504 Hearing

• Parents may request a hearing for:– Identification– Programming– Discrimination

• If IDEA is involved too, the issues will be heard in one hearing

• Section 504 disputes can be heard by a hearing officer


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OCR’s Complaint Mechanism

• Parental grievances with school districts can be reported directly to OCR– 180 days of infraction

• OCR will screen the complaint for merit and appropriateness– OCR usually sticks to procedural issues

• If it is an appropriate complaint, OCR will begin an investigation


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OCR Investigation

• OCR asks for documents and, if necessary, interviews school officials

• OCR will first seek Early Complaint Resolution (parties resolve problem)

• Formal investigation– Violation = A letter of finding is issued– Violation = OCR requires a monitored

written agreement from the school


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“The Big Stick”

• As a result of OCR investigations, a school district will usually voluntarily change its procedures to comply with Section 504

• If a school refuses to comply with an OCR ruling, OCR may:

1) Begin procedures to terminate federal funding or

2) Refer the matter to the Justice Department for enforcement in court


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Litigation

• Parents of stand-alone Section 504 students may file a civil action

• If the student is an IDEA student, both an IDEA and 504 suit may be brought, although the IDEA is heard first– Administrative hearing process


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Types of Relief

• Injunctions• Compensatory education• Reimbursement• Attorney’s fees• Possibly MONETARY DAMAGES!!

– “Bad faith” violations– Gross violations


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Section 504 and the IDEA

• Eligibility

• Evaluation

• Free appropriate public education

• Procedural safeguards

• Discipline

• Funding

• Overall responsibilityYell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved

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Eligibility

• IDEA: Thirteen disability categories

– Need special education services

• Section 504: Functional definition– No special education need requirement


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Evaluation

• IDEA: Extensive protection in evaluation procedures

• Section 504: Evaluate before providing services– No independent evaluation component


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Free Appropriate Public Education

• IDEA: Special education and related services– Meaningful benefit standard

• Section 504: Regular or special education and related aids and services– Comparability standard


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Procedural Safeguards

• IDEA: Notice, consent, records access, parental input in evaluation, IEP, placement– Stay-put provision– Mediation, due process, court

• Section 504: Informal notice, no explicit consent requirement, records access– Due process hearing (very few specifics)– Compliance with IDEA meets requirements


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Discipline• IDEA

– 10-day rule– Pattern of removal rule– Manifestation determination– Long-term removals– No cessation

• Section 504– Same– Cessation allowed if no manifestation


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Funding

• IDEA: Mixture of state and federal funds

• Section 504: No federal funds


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Overall Responsibility

• IDEA– SEA

– Special education

• Section 504– LEA

– Regular education


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Evaluations

• Locate and identify all qualified students in public and private schools and institutions in LEA’s jurisdiction

• Before a making an initial placement, the school must complete an evaluation

• Evaluation and programming must be completed within a “reasonable period of time” (days not months)


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Conducting an Evaluation

• Standardized tests must be validated• Standardized tests must be administered by

trained personnel in accordance with instructions

• Assessments must be tailored to assess specific areas of educational need

• Tests must be administered to accurately reflect what the test is supposed to measure


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When Should a District Conduct an Evaluation?

• A student must be evaluated when the district has reason to believe that he or she may have a disability– A parent advises a school district of problems– A teacher refers a student for a possible disability– A student has a medical diagnosis– A student has excessive absences due to a

illness


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Violations

• When OCR finds that it has fallen short of its FAPE obligation under Section 504, the school district has typically– failed to properly evaluate a student– failed to identify and address all of a student’s

needs in educational services– failed to provide educational services needed

by a student


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Free Appropriate Public Education

• Educational services provided at no cost except for fees that are charged to everyone

• Program must be “designed to meet the individual educational needs of the [student] with disabilities as adequately as the needs of the nondisabled are met.”

• Provision of regular or special education and related aids and services


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The Section 504 Plan

• An IEP meets the requirements of Section 504 but it is not advisable to develop IEPs for non-IDEA students– Creates confusion and too specific

• Section 504 plans or Individualized Accommodation Plans– Reasonable accommodations issue– Must provide a FAPE and be individualized


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The Section 504 Plan

• Section 504 does not detail the components of a Individualized Accommodation Plan– It should be a written document

• Most 504 students receive their education in the regular classroom so the content does not have to be as extensive as an IEP– Modifications– Related aids and services


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Regular Classroom Modifications

• Program adaptations made in the regular classroom that do not interfere with regular education curriculum

• Examples– ADHD– Hearing impaired– Reading disabled– Visually impaired– Math disability– Writing disability


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Related Aids and Services

• Related services can be provided as the total program

• Related services are aids and services needed – To meet individual needs as adequately as the needs of

the nondisabled are met– To allow a student to benefit from either regular or special

education in a way that provides equal opportunity


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Examples of Related Services

• Administration of psychoactive medication• Special dietary accommodations (Diabetes)• Service dog• FM wireless hearing sets for teachers• Providing large print books• In-class word processors • Transportation• Paraprofessionals


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Nonacademic Services

• Under IDEA and Section 504, students with disabilities must be provided with an equal opportunity to participate in nonacademic services and extracurricular activities– Counseling services– Recreational athletics– Health services– Recreational activities– Special interest groups or clubs


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Sports Participation

• No qualified student with a disability can be denied the opportunity to participate in physical education and athletic activities– Schools cannot prejudge a student’s participation in

athletics because of a disability– Courts generally favor allowing qualified athletes with

physical disabilities to participate– Students must understand the risks of participation


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Procedural Safeguards

Schools must establish a set of procedural safeguards that parents can use when they believe discrimination has occurred based on disability

1)Provide advance notice (oral or written) 2)Opportunity to examine records3)An impartial hearing4)A review procedure


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Safeguards not included in 504

• Independent educational evaluation

• Surrogate parent provision

• Consent (Recommended by OCR)

• Stay-put provision

• Parental input into evaluation, eligibility, and placement

• Parental input into the individualized plan


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Discipline

• School officials and teachers may discipline students with disabilities, protected under Section 504 (or IDEA), in the same way as they discipline nondisabled students

• School officials must understand the exceptions


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School-wide Discipline

• Students with disabilities are subject to school-wide discipline procedures

• Exceptions– When procedures deprive students of their

special education services– Trigger the procedural safeguards of the IDEA– Interferes with a student’s IEP, BIP, or Section

504 plan


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Due Process Requirements

• Suspension is subjected to the standards of due process– Goss v Lopez, 1975

• Due process protections– Oral or written notice of the charges– Explanation of the charges and supporting

evidence– Opportunity to present his or her side of the

story


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Nondiscriminatory Discipline

• All students with disabilities are covered by Section 504

• Section 504 prohibits discrimination– The unequal treatment of persons with

disabilities based solely on the basis of their disability

• Schools must not violate Section 504 when disciplining students with disabilities


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504 Plans and School Discipline

• If the 504 team determines that:– The student will be subject to the school-wide

discipline policy, and– The policy does not violate IDEA '97 or

Section 504

• The team may use the 504 plan to affirm that a student will be subject to school-wide discipline practices


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Violations of Section 504• Using discipline procedures with students with

disabilities that are not used with nondisabled students• Using discipline procedures with students with

disabilities that are more harsh than those used with nondisabled students

• Suspending, expelling, or changing placement of a student with disabilities for misconduct that is related to his or her disability

• Using disciplinary procedures that are prohibited in a student’s IEP or 504 plan


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Short-term Disciplinary Removals

• Unilateral suspensions or changes of placement for not more than 10 consecutive school days are allowed

• More than 10 cumulative days in a school year may be a change of placement

• After 10 cumulative days of suspension, educational services must be provided


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Multiple Short-term Suspensions

• A series of short-term suspensions for different incidents may be permissible as long as they are not a change in placement

• 504 team must decide when suspensions are a placement change triggering notice and evaluation of causal relationship– Length of removals– Total amount of time that the student is removed– Proximity of removals to one another


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Using Short-term Suspensions

• Use out-of-school suspensions carefully and only in emergencies

• Keep thorough records of the amount of days of suspension

• The frequency and amount of short-term suspensions, if excessive, may be indicative of a defective IEP


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Long-term Disciplinary Removals

• Student suspensions that total more than 10 consecutive days may be changes of placement

• Significant changes in placement require parental notification and reevaluation

• Educational services and manifestation determination are required


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Weapon Offenses

• Students with disabilities (not covered under IDEA) may be expelled from school if the student brings a weapon to school or a school function

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Alcohol or Illegal Drug Offenses

• With or without a causal link, students whose misbehavior involves the use of alcohol or illegal drugs may be disciplined for use or possession in the same way that nondisabled students are disciplined

• Use of alcohol or drug offenses are not protected under Section 504


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Manifestation Determination

• Required when a discipline sanction could result in a change of placement

• Must be conducted by the IEP team using all relevant evaluation data

• Team determines the relationship between disability and misconduct• No relationship—Long-term suspension and expulsion are

available, cessation of educational services allowed• Relationship—Long-term suspension and expulsion are

not available


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Conducting the Determination*• Gather relevant assessment data• Review IEP and ask, “Was the problem

behavior the direct result of the school’s failure to implement the IEP?”

• Review the data and ask, “Was the behavior that led to the disciplinary sanction caused by or the result of a direct and substantial relationship to the student’s disability?”

*Procedures and language from IDEA 2004Yell / The Law and Special Education, Second EditionCopyright © 2006 by Pearson Education, Inc. All rights reserved

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Ensuring Compliance• When appropriate, use the same discipline

procedures for all students• Include discipline policy in IEP or 504 plan

• Conduct manifestation determinations to assess relationship

• Include an individualized behavior plan in the student’s IEP

• All school officials and teachers must understand the contents of IEPs and 504 plans


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