Section 504Rose-Ann McKernan

Executive Director Instructional AccountabilityDistrict Director for 504

Agenda Welcome & Intro

Table Task

Share Decisions

Review of 504

Requirements

Disciplinary Actions

Q & A

Review Decisions

Notes: Table Task – Agenda Item #2

The Table Task is a set of situations with a parent role, SAT coordinator role, teacher role and in some cases other staff roles.

The objective is for the group to play the parts of each role and have the SAT chair guide the decision.

After a few minutes, the groups can share what their situation was and their decision.

After the presentation, the groups reconsider their decision and explain why they might or might not change their earlier decision.

StatuteSection 504/ADA is a civil rights statute

that prohibits discrimination. Like the

sister statutes of Title VI (race) and Title

IX (gender), Section 504/ADA focuses on

discrimination based solely on disability.

Two Aspects of 504

Providing accommodations to ensure a student with disabilities has access to Free Appropriate Public Education (FAPE)

Ensuring students with disabilities are not subject to discrimination due to their disability

Notes: “Two Aspects of 504”

A 504 should not be considered a consolation for not being eligible for special education but that student may be eligible for a 504 accommodations plan.

The information gathered as part of the special education evaluation may be used in determining eligibility for a 504.

A 504 accommodations plan is a planned, written response to a student’s disability that allows a level playing field for that student.

The plan should provide the student the ability to access the educational programs and services as his non-disable peers do.

The student does not have to meet the requirements of special education qualifications to be eligible for a 504 accommodation plan

Section 504The new law became effective

January 1, 2009

Congress placed a huge emphasis on discrimination

Expanded the scope of disabilities and protections

Notes: Section 504

A 504 should not be considered an automatic if a student is not eligible for special education. That student may be eligible for a 504 and may not but should be considered like all other students. The information and evaluations used for the special education consideration may be used for the 504 review. However, The student does not have to meet the requirements of special education qualifications to be eligible for a 504 accommodation plan.

Section 504The Act rejects four United States Supreme Court decisions which limited the scope of protection for individuals with disabilities.

Sutton v. United Air Lines, Inc. 527 U.S. 471 (1999)

Murphy v. United Parcel Service 527 U.S. 516 (1999)

Albertsons, Inc. v. Kirkingburg 527 U.S. (1999)

Toyota Mfr. Kentucky Inc. v. Williams 534 U.S. 184 (2002)

Notes: Section 504 Court Cases

The earlier Act had several court cases that defined and in many instances narrowed the focus of the original law.

These are references to cases that were significant in the narrowing of the applications.

However, the re-authorization over rides those cases and expanded the scope as well as the considerations allowed.

Essential Features of Congress’ Rejections of Cases

Substantially limits – not significantly limits The limitation of one life activity does not

have to have an impact on any other activity Episodic or in-remission disabilities can be

considered even if they do not limit while in remission

As long as the disability substantially limits a life activity IN THE SCHOOL SETTING, it must be regarded as qualified under Section 504

Must be assessed in the un-corrected condition

Notes: Essential Features of Congress’ Rejections of Cases

The changes made through the new law are that the impairment must substantially limit not significantly limit but there is no definition of either of these two terms. Generally it is thought that substantially is less than significant.

In the school setting would apply to doing homework at home as well.

With the exception of glasses for the typical visual acuity correction, the disability must be identified, assessed and considered without corrections or mitigating measures such as medications, assistive devices and other assistance that might be prescribed or taught.

A Few Obvious Examples

A student with ADD who is not eligible for special education services

A student with hearing impairment who wishes to try out for the basketball team

A student with a peanut allergy

A student who has a broken leg and will be unable to walk for standard 6-weeks

Notes: Obvious Examples

Students who do have a diagnosed disability that does not meet the standard for special education MAY be eligible for a 504 accommodations plan.

Attention Deficit Disorder is a difficult impairment to define as far as eligibility and accommodations are considered.

The student with a hearing impairment who tries out for the basketball team must be provided accommodations to allow the student to demonstration his/her basketball skills.

If the student cannot play basketball but had a fair and equitable try-out you can exclude the student from the team just as you would a non-disabled student who can’t play basketball.

If the hearing impaired student can play basketball and does compete well in the try-out – then you will need to consider the student ONLY on the same skills and abilities as his non-disabled peers who tried out.

A student with a peanut allergy whose allergy has no other impact on their educational success MAY be provided a detailed health plan. If the allergy is so severe that the student must miss days of school or there is another educational impact, then a 504 plan is appropriate.

A student who has had surgery and will be unable to walk for an extended period of time (regulations state >6 months) should have accommodations for fire drills and fire evacuations as well as movement around the building. This MAY be a 504 plan or it may be an agreed upon and informal but written plan among the staff.

A Few Obscure Examples

Parent conferences for a special education student who participates in the regular classroom

An otherwise typical student who has had surgery and is unable to walk for an extended period of time (transportation)

Students in a special education class wanting to have their group picture in the yearbook

Notes: Examples

Students who participate in the general education class as well as the special education class should have all the parent conference opportunities in the general education class as any non-disabled peers have. The parents may elect not to participate and use only the conferences with special education services, but they must have access to the general education conferences.

A student who has had surgery and is unable to walk for a period of time that is beyond the typical time –defined in regulation as > 6 months– may request a 504 and may request transportation. Generally this is considered a valid reason for a 504 accommodations plan.

Students in a special education class should be included in a yearbook or yearbook-type publication at the school BUT should not be identified as Ms. X’s Special Education Class. They may be identified as Ms. X’s class or Ms. X’s multi-grade class and they should not be excluded on the basis that they are in special education.

Accommodations Accommodations must be reasonable for the

staff and student

Performed in the duty day

Not disruptive to other students’ learning

Accommodations do not have to be agreed to or negotiated as in an IEP

It is best practice to work with parents to arrive at accommodations for the student

While school staffs may reject suggestions from parents or health care/treating professionals it is important to reach a compromise for the student.

Notes: Accommodations

An example is that if the teacher uses the SIS to post assignments or has a website with all assignments, it is not a reasonable accommodation to have the teacher also email the assignments to the family because the family already has internet access and can go to the site. If the parents state that they don’t have internet access it would be appropriate to work out an alternative accommodation for the parents to know that the homework is for a student.

Sometimes parents may access a website for a particular condition and present a long list of accommodations from the site as their recommendations. Often times these sites have listed all the possible appropriate accommodations and it is best to work with the parents to identify those that apply to their child only.

Accommodations Particular to high School

A student in an AP class who cannot keep up may be offered the non-AP class as an accommodation

o Not be relieved of the class/home work

A student desiring accommodations on ACT or SAT

o That is the responsibility of the parent and student

o The school responsibility is only to provide a copy of any plan that has been developed

o Do not develop a plan specifically with the intent to assist the student in obtaining accommodations on ACT/SAT

Notes: Accommodations

You may offer a student in an AP class the option of returning to a non-AP class but not changing the nature of the AP class.

You may offer that student more time to do the same work –but changing the work changes the class.

The only obligation a school has for accommodations on the ACT or SAT is to provide the parents with an accommodations plan – if there is one.

If the student is not eligible for an 504 accommodations plan but is receiving classroom interventions to address their disability, the school may provide a letter and a list of interventions that are being provided. If a student is not eligible for a 504 plan in your school, it is not your obligation to develop one for the ACT or SAT.

Getting Started A parent, teacher, or student may request

a 504 Eligibility & Planning Conference

Notification is sent to the parents with time and date of conference

Gather the information at the school

Gather information from outside agencies or ask parents to bring this information to the edibility conference

Invite the teacher(s), nurse, counselor and others who are involved with the student

Notes: Getting Started

On the website is a step by step written process and a flow chart. If you access the flow chart, it has live links to the forms you need at the different steps.

Answering Eligibility Questions

The disability must be described, but it does not necessarily have to be documented by a physician or health care professional.

The limitations have to be identified. The participants should have some

recommendations about what accommodations are needed.

The disability must have an impact on learning in the school setting.

Notes: Answering Eligibility Questions

It is always best to have a health care professional’s diagnosis but in the absence of any documentation the school staff may use evaluation techniques typical of those for special education to determine if a student is eligible for a 504 accommodation plan.

For psychological disorders it is always in the student’s best interest if the treating professional provides a description of the student’s issues/concerns and behaviors that should be addressed by the 504 plan.

Documenting the Plan

Identify the disability and the proposed reasonable accommodations.

Identify who will provide the accommodations, how often, upon what circumstance, and any reasons that might prompt you to discontinue or re-evaluate the accommodation during the year.

Parents should be involved in planning.

High school students should be involved.

Notes: Documenting the Plan

Be as specific as possible so that anyone who reads the plan or has opportunity to support the student will understand what accommodations are needed.

It is a good idea for the student if you include ways that the student can take some responsibility for his/her own plans. Simple and gradual increased expectations are a good thing for all students. Ex. For a few weeks the teacher reminds the student to write the assignments down and the teacher checks the student’s agenda. After a while the teacher just asks to see the agenda before the student leaves and makes sure the assignment is written, eventually the student is bringing the agenda on his/her own for the teacher to check and so on. Using a plan like this it is important that the student is not moved to the next step in independence until he is successful on the current one.

High school students should participate in their accommodations plan. The students in high school often knows exactly what they need in each class because they are familiar with each teacher and what they are having problems with in each class.

Using the Forms

On the Instructional Accountability website and on the APS intranet.

Notification letter that is very straightforward without a commitment to establish a plan.

Word Form that allows you to type the plan as you go.

PDF that allows you to write the plan.

Notes: Using the Forms

If you use the Word form, please save it on a computer at the school under the student’s name or ID number.

You may email the form to the district office ONLY if you are emailing within the APS network.

If you write the plan, please make sure that the information is legible.

Both plans give directions on what is to be done with the plans. Please follow those directions.

Accommodations

The PED Guidelines have an appendix of accommodations you may use.

Our office is collecting strategies and lists from other districts.

Access websites sites specific to the disability.

It is best to ask a treating health care professional (THCP) for areas of need instead of specific accommodations.

You may ask the THCP for suggestions.

Notes: Accommodations

You are free to use the accommodations in the PED appendix, there are some additional ones on the website and there are very good ones on the internet.

Select ones that are appropriate for the individual student.

Ask the teachers working with the student and the students.

When the Plan Does Not Work

If the student continues to experience difficulties or fails to succeed as a result of their disability you may:

Re-convene the committee and rework the plan;

Make a SAT presentation and follow those recommendations (inform the parents);

Do both of these.

Do not just drop the plan because ‘it doesn’t work’

When Does Mediation Occur?

If the school 504 planning committee and parents/students cannot reach any accommodation.

If a plan is developed and is perceived not to be followed.

If a parent/student feels that there is discrimination due to disability.

Either party may request mediation.

What Is Mediation?

Mediation is less formal than most situations associated with an IEP.

There are few if any regulations around the form and substance of a mediation.

Mediation can be conducted at the school or with staff from central administration.

The party requesting mediation is to present the disability and some recommended remedy.

When Mediation Fails If parties fail to reach an agreement

through mediation the offended party may request a hearing.

Typically districts do not request hearings

Hearings are more formal.

Presided over by a neutral party through EOS in APS.

A recommendation for remedy and compensation must be presented by the offended party.

Difficult Situations Students at the secondary level who are

true ADD individuals Poor executive functions associated

with ADD makes it appear to many that the student is “not trying”

Actual, severe peanut allergies –documented You cannot assure a parent a ‘peanut

free school’ The student who has a behavioral

disabilities but is also manipulative with his disorder

Notes: Difficult Situations

ADD/ADHD students often times have poor executive functioning. This does make the student look irresponsible and immature.

These students tend to be disorganized, they may do their homework but never turn it in. They know they need to write down their assignments but may lose them.

But this is also the behaviors of an immature or careless student as well.

The work of the committee and the parents is to distinguish among these behaviors.

It is unnerving for parents when their child has a severe peanut allergy. They do want to protect them completely.

But you cannot assure a peanut free school; you can provide peanut free zones in the cafeteria, require all classroom snacks be commercially packaged and reviewed by an adult before serving, and have other peanut free areas but not an entire school. Remember, in all likelihood this child does go to church, the mall, the movies and other places that are not peanut free either. It is appropriate to remind the parent of that as well.

In both the ADD situation and the peanut situation, the students need to start taking responsibility and developing compensatory skills, too. The goal of the 504 plan for the ADD student is to help them create strategies and processes that help them meet the demands of school even though you may at first reduce those demands and gradually increase expectations.

The same for allergies. Students need to learn from an early age to manage these conditions and the 504 plan should help support that goal.

A Couple of Reminders It is better to argue the reasonableness of

the accommodations than it is to argue the failure to identify…to the hearing officer, the OCR investigator or the judge.

If a parent requests an evaluation for special education consideration, you submit the request straight to special education (the student does not have to be referred to SAT before the referral but should be referred to SAT while awaiting the evaluation). The 60 day time line for evaluation does not start until the

diagnostician has the parents sign a release for testing.

Considerations for Disciplinary Actions Students with a 504 are covered by the same

rules as a student with a IEP

Students may not be removed from their educational program for behaviors associated with their impairment.

Before removing a student from their program a manifestation hearing must occur.

For safety, a student may be removed from school while the manifestation hearing occurs, but the removal(s) may not exceed 10 days.

10 Day Rules

Students with disabilities (504 eligible) are entitled to a Free Appropriate Public Education (FAPE).

Separation from the educational program for

10 consecutive days, or

10 cumulative days in a school year constitutes a lack of FAPE.

What Constitutes a Removal

In-school suspension during which the student has (genuine) access to the general education program is NOT considered in the 10 day rule.

Short term suspension for a behavior that is related to the disability is a removal

Short-, Long-term suspension or expulsion without a manifestation hearing is removal and denial of FAPE.

Other Separations/Removals

Sending a student home repeatedly to “calm down” is removal from the educational program.

Sending the student to ISS with no educational activities is removal.

Establishing a plan of a shortened school day that then gradually includes the student in the educational program is NOT removal. If the intent is to achieve the full school day for the student.

Establish Relationships

To avoid inappropriate exclusions from school, a behavioral framework for manifestation relationships should be established at the 504 planning conference.

Identify behaviors that are a function of the disability and the planned intervention.

Be sure to follow these interventions.

Afford Due Process

Hold a manifestation hearing as soon as the behavior occurs that will result in exclusion and ask these questions:

Is the behavior is a function of the student’s disability or does it have a direct relationship to the disability?

Is the behavior a result of the school staff’s failure to implement the existing 504 Accommodations Plan?

Was the behavior contract beyond the student’s capacity at the time?

Notes: Afford Due Process

You may exclude a student (send them home from school) in the instance of a severe infraction that is an endangerment but hold the manifestation hearing immediately (that day or the next).

If the incident may constitute a pattern of behavior that may have a relationship to the disability, re-convene the 504 committee and establish a behavior plan for the student, return the student to school and implement that plan.

YES?

If you answer yes to any one of those questions, immediately return the student to school and re-convene the 504 Planning Committee.

Re-evaluate the plan and make modifications to address the specific behavior.

Follow the new plan.

Re-Evaluation The PED guidance states that the 504

Accommodations Plans must be re-evaluated every year.

The federal guidance does not specify a time.

Rules of Thumb

Re-evaluate any time the current plan is not effective.

Review annually and if no changes are needed continue the plan (see new form coming soon).

Re-evaluate and develop a new plan if the student moves to a new school.

Discrimination of Students with Disability The second prong is around the

discrimination of students with disabilities.

This has both obvious aspects and obscure aspects.

Students in special education must have access to the same educational services as non-disabled (even if some of those services are duplicated in special education and general education.)

Notes: Discrimination of Students with Disability

The second prong is one that is often over looked but all of the hearings we have had but one in the last 5 years have been around this aspect of the 504 section.

There are the common sense kinds of issues such as not making special education students sit together in the cafeteria but letting other classes sit where they want to sit.

But a couple of other examples are a little more obscure:

The student in high school who is deaf and wants to try out for the basketball team.

While you would need to provide an interpreter for the try-outs, the student does not automatically get on the team. You can cut the student.

The yearbook is a second rather obscure situation:

If you take a class picture and identify it as Ms. Garcia’s special education class – that is a problem (and resulted in a complaint to OCR), but if the students from your school want to take a picture at the event that is considered an event for individuals with disabilities and put it in the year book…they can. (e.g. Special Olympics)

We had a case that went all the way to a hearing over teacher conferences. A sp edstudent was included in a general class but had a monthly IEP meeting to review his progress. Parent conferences were set up and one was set with the parents and the special ed teacher. However, the parents were not given the option to sign up for a conference with the general ed teacher alone as all the other 3rd graders did.

The parents tried to mediate but the school staff kept saying …but you already have a monthly meeting.

The final decision at the hearing was that a special education student must have the access to ALL educational services that non-special education students have and therefore the parents should have been given a time for conference with the general edteacher.

Contact Information:

Rose-Ann McKernanExecutive Director of Instruction Accountabilityand District Director for 504

McKernan@aps.edu

505-872-6815