The ADA, IDEA, and Section 504 in Education:

Understanding the laws, advocacy strategies and current issues for our

children with disabilities

Laws:

Protection for people with disabilities

Laws:

Protection for people with disabilities

No Child Left Behind / 2002

• A federal Education Law.

• For ALL students, with a focus on traditionally “under-served” students.

• School accountability to increase school performance and outcomes.

• Requirements for “highly-qualified” teachers and paraprofessionals.

• Process to change school or get remediation if school fails to meet Adequate Yearly Progress (AYP)

NCLBNCLB

Family Educational Rights & Privacy Act

• A federal Education Privacy Law.

• For ALL students.

• Right to inspect and review “any and all” records the district keeps. Timeline in CA: within 5 days

• Right to request correction of records that are inaccurate or misleading.

• Right to consent to disclosures of personally identifiable information contained in education records.

FERPAFERPA

Section 504 of the Rehabilitation Act / 1973

• A federal Anti-Discrimination Law.

• Protects ALL people with a disability that impairs one or more major life activity (learning is one).

• Prohibits discrimination in ANY program that receives federal dollars.

• Provides accommodations to remove discriminatory barriers.

• In education, a “504 Plan” removes barriers to learning and opportunities.

504504

Individuals with Disabilities Education Act / 1975

• A federal Education Law.• For students with at least one of 13

qualifying categories of disability.• Who ALSO need specialized support and

instruction to benefit from education.• Provides a “special education” plan:

“IEP” - specialized instruction- related supportive services

• “IEP” must be individualized to meet a student’s unique needs.

IDEAIDEA

A civil rights law to prohibit discrimination solely on the basis of disability in employment, public services, and accomodations.

Protects: Any individual with a disability who: (1) has a physical or mental impairment that

substantially limits one or more life activities; or

(2) has a record of such impairment; or (3) is regarded as having such an impairment.

 Note: the person must be qualified for the program, service, or job.

The ADA

The Americans with Disabilities Act

/ 1990

The ADA

The Americans with Disabilities Act

/ 1990

• ADA provided additional protection in combination with actions brought under Section 504.  Reasonable accommodations are required for eligible students with a disability to perform essential functions of the job.  

• ADA protections apply to nonsectarian private schools, but not to organization or private schools, or entities controlled by religious organization;

• Applies to any part of the special education program that may be community-based and involve job training/placement. Also applies to Childcare centers and recreation programs.

The ADA

The Americans with Disabilities Act / 1990 (cont.)

The ADA

The Americans with Disabilities Act / 1990 (cont.)

The Americans with Disabilities Act of 1990 (ADA), the Individuals with Disabilities Education Act (IDEA), and Section 504 of the Rehabilitation Act of 1973 represent three attempts to improve the living conditions of those with disabilities, to ensure equal access, and to promote inclusion.

Go to: http://www.dredf.org/advocacy/comparison.htmlFor a comparison of these laws.

How do the ADA, 504 and IDEA relate to

each other?

How do the ADA, 504 and IDEA relate to

each other?

Section 504 covers disabled persons in programs receiving federal funds: - public schools explicitly, but also - publicly-funded programs such as day care programs, - after-school programs and even some private schools

To be eligible for services and to ensure a Free and Appropriate Public Education (FAPE) and protection against discrimination under Section 504, a student must have a physical or mental impairment that substantially limits one or more major life activities. [29 U.S.C. 706 (8)(B)]

**broader “physical disability” definition.

What is Section 504?What is Section 504?

A student is entitled to a Free and Appropriate Public Education (FAPE) • This can consist of special services and

program modifications

504 Plan • Designed to reasonably accommodate the

student’s condition so that his/her needs are met as adequately as the needs of students without disabilities.

Provided in the Least Restrictive Environment (LRE)

--Removes Barriers, Provides equal access--

EXP: Ramp into the school to access learning like other students, Computer access so student can “show” what she knows.

SECTION 504—Leveling the playing

field

SECTION 504—Leveling the playing

field

♦ Recipients of federal monies must provide FAPE♦ Must provide regular or special education ♦ LEA must appoint a “504 Coordinator” ♦ LEA must develop & implement Section 504 policies and procedures (LEAs may adopt IDEA procedures for 504.)♦ LEA must provide parent/guardian with procedural safeguards;♦ Annually identify and locate all students with disabilities (Child Find)♦ Have Grievance Procedures

LEA REQUIREMENTSLEA REQUIREMENTS

Free Appropriate Public Education (FAPE)

Section 504/ADA

• Requires FAPE be provided to each student that qualifies under Section 504;

• Defines FAPE as general education, special education and related aids & services,

• Services must be individually designed and provided so they meet the educational needs of the student;

• Students have the same access to all programs, the same as a student without disabilities

Students may receive services, accommodations and modifications for “equal access” to educational opportunities afforded all students.

Accommodations are program adjustments made to remove disability-related barriers to full participation in school: “leveling the playing field”

Academic modifications may be necessary even if major activity of “learning” is not affected.

Ex: P.E. curriculum changes, school scheduleNonacademic AND extracurricular activities are included. Ex: field trips, athletics and assemblies.ALL determined by student’s individual needs.

““504 Plan” describes 504 Plan” describes services, services,

accommodations & accommodations & modificationsmodifications

““504 Plan” describes 504 Plan” describes services, services,

accommodations & accommodations & modificationsmodifications

Accommodations for children with diabetes might include:• Ability to leave class when needed• Free access to food and water• Preferential seating• Administration of health protocols in class• Additional time to complete assignments

without penalty• Ability to make up work missed to fulfill

health-related needs or doctor’s appointments without penalty.

Services, Services, Accommodations Accommodations and Modificationsand Modifications

Services, Services, Accommodations Accommodations and Modificationsand Modifications

Examples of Related Services:•Physical Therapy•Occupational Therapy•Counseling•Assistive Technology•Speech or Language Services

RELATED SERVICESRELATED SERVICESRELATED SERVICESRELATED SERVICES

Relationship of Protective Laws

Relationship of Protective Laws

IDEASpecial Education

ADA

SECTION 504

IDEA-eligible students are protected by ALL these laws just discussed.

A Student with an IEP may also need accommodations to prevent discrimination.

Community Focus

School Focus

IDEA: DisabilitiesIDEA: Disabilities

1. Autism2. Deafness / HH3. Deaf-Blindness4. Hearing Impairment5. Mental Retardation6. Multiple Disabilities7. Orthopedic

Impairment

8. Other Health Impairment9. Serious Emotional

Disturbance10. Specific Learning Disabilities11. Speech or Language

Impairment12. Traumatic Brain Injury13. Visual Impairment / Blindness

Section 504: Impairment Categories

Section 504: Impairment Categories

**THIS LIST IS A SAMPLE OF IMPAIRMENTS AND IS NOT AN EXHAUSTIVE LIST

• HIV/AIDS • Tuberculosis• Arthritis• Asthma• Allergies• Diabetes• Obesity• Epilepsy• Heart Disease• Chronic Fatigue• *Pregnancy• Orthopedic

*It depends

• *Special Education—Qualified Students

• Conduct Disorder• Temporary Disability• ADD/ADHD• *Drug and Alcohol• Migraine Headache• TBI—Traumatic Brain Injury• Cerebral Palsy• Cancer• Multiple Sclerosis

Section 504 vs. IDEASECTION 504 IDEA

Civil Rights Law Educational Law

No Federal $$$$ Federal/State $$$$

No Consent to Implement Required Consent Required

No Labels Labels of Disability

Evaluations Evaluations

Periodic Re-Eval Re-Eval every 3 years

FAPE FAPE

504 Plan IEP

Placement/LRE Placement/LRE

Discipline Discipline

Section 504 is NOT Special Education

IDEA The student must have a

disability that falls into one or more specific qualifying conditions.

The student’s disability must adversely affect educational performance.

Full, comprehensive evaluation, including psychological evaluation.

Parent consent required Strict timelines

Section 504 The student must have a

physical or mental impairment.

The student’s disability must prevent equal access to or benefit from the school’s programs or services.

Evaluation using relevant information from a variety of sources. Decision by a group of knowledgeable persons.

Parent consent required “Reasonable” timelines

Can’t Have Both…

It should be noted that students who qualify for special education services under IDEA will NOT automatically qualify as a handicapped person

under Section 504.

A parent cannot turn down IDEA services in place of Section 504 services.

504 EVALUATIONS:

*Review of Records*Can be Formal Evaluations like IDEA *Parent Permission must be given for all Initial Section 504 Meetings

504 EVALUATIONS:

*Review of Records*Can be Formal Evaluations like IDEA *Parent Permission must be given for all Initial Section 504 Meetings

RECORDS INVOLVED COULD INCLUDE, BUT NOT LIMITED TO:

– Formalized testing such a Dyslexia assessment or outside evaluation information

– Dr. Diagnosis– Current and past grades– Teachers’ reports and notes– Information from parents and other agencies– State assessment scores or other school

administered test– Observations, discipline records, attendance

records, RTI records– Health records and adaptive behavior

information

Section 504 Team:

*Regulations require: **a group of persons, at least 2, including those knowledgeable about the child, the meaning of evaluation data, and the placement options.

Section 504 Team:

*Regulations require: **a group of persons, at least 2, including those knowledgeable about the child, the meaning of evaluation data, and the placement options.

Section 504 Team:

*Parents are not required;*No maximum # of people required;*No guidance on the level of knowledge about the child that is required

Section 504 Team:

*Parents are not required;*No maximum # of people required;*No guidance on the level of knowledge about the child that is required

A Qualified Handicapped Individual

is a person who:• Has a physical or mental impairment

which substantially limits one or more major life activities;

• Has a record of such an impairment; or • Is regarded as having such an

impairment.

“Substantial” – Key Question to Remember: Does theStudent have an equal opportunity to participate inAnd benefit from his/her education compared to non-Disabled peers?

ADAAA 2008 greatly reduced the bar for Section 504

qualification• It underscores Congress’ express

intent that “the question of whether an individual’s impairment qualifies as a disability should not demand extensive analysis.” (P.L. 110- 325, § 2(b))

• An impairment can be a disability even if episodic or in remission. �E.g., epilepsy or cancer. ** if it �meets the “substantially limits” standard when the impairment is active. (P.L. 110-325, § 4).

Illustration of Regarded as Disabled

Anna, a student with mild diabetes controlled by medication, is barred by the staff from participation in certain sports because of her diabetes. Even though Anna does not actually have an impairment that substantially limits a major life activity, she is protected under Section 504 because she is treated as though she does.

A Record of Impairment

For the purposes of protection:

EXAMPLES of individuals who have a record of an impairment are persons who have histories of mental or emotional illness, learning disabilities, asthma, heart disease, cancer, etc. (who are recovering or managed by medication) and students in special education.

3 QUESTIONS:

1. Does the student have, regarded as having, or has a record of having a physical or mental impairment?

2. Does the impairment “substantially” reduce or lessons a student’s ability to access learning in the educational setting because of a learning, behavior, or health-related condition?

3. What major life activity does it limit?

3 QUESTIONS:

1. Does the student have, regarded as having, or has a record of having a physical or mental impairment?

2. Does the impairment “substantially” reduce or lessons a student’s ability to access learning in the educational setting because of a learning, behavior, or health-related condition?

3. What major life activity does it limit?

Section 504: Disability DefinedPhysical or Mental Impairment** Major Life Activities**

Record of Impairment**

Regarded Impairment**

Physiological disorder, contagious disease, cosmetic disfigurement or anatomical loss in one or more system:

• Neurological• Musculoskeletal• Respiratory• Cardiovascular• Reproductive• Digestive• Bowel *• Genito-urinary• Hemic• Lymphatic• Skin• Endocrine • Immune System ***• Normal Cell Growth ***• Bladder ***• Reproductive Functions ***

Mental or psychological disorder including:

• Mental retardation

• Organic brain syndrome

• Emotional or mental illness

• Specific learning disabilities

Major life activities include:

• Self-care

• Manual tasks

• Walking

• Seeing

• Hearing

• Speaking

• Breathing

• Sitting

• Standing ***

• Reaching

• Thinking ***

• Concentrating ***

• Reading ***

• Communicating ***

• Interacting with others

• Learning

• Working

• Eating ***

• Sleeping ***

• Lifting ***

• Bending ***

The individual has:

• A history of impairment

  

• A record of having been misclassified as having an impairment

The individual has:

• An impairment not limiting a major life activity, but treated as disabled by the covered entity

  

• No impairment, but treated as disabled by the covered entity

• Substance Abuse (recovering alcoholic or addict*

* Does not include current, illegal drug or alcohol abusers. Non-exhaustive list.

Disability determinations must be made without considering

mitigating measures.• “Mitigating measures”: measures that

help correct or ameliorate an individual’s physical or mental condition. – Examples: medication, medical supplies, and

equipment, low vision and hearing devices, prosthetics, use of assistive technology and reasonable accommodations.

• Exception: ordinary corrective lenses that “fully correct visual acuity or eliminate refractive error,” as distinguished from low vision devices that “magnify, enhance, or otherwise augment a visual image.” (P.L. 110-325, § 4)

Who is EXCLUDED

• ADAAA 2008 clarifies that minor and transitory impairments are not protected disabilities. – Transitory: actual or expected duration of

6 months or less – Minor: e.g., broken arm

• SEE NEXT SLIDE

Review on a Case by Case Basis for State Assessment

Purposes:• A student may need a § 504 plan for

assessments �• HOWEVER, the school divisions should

ask: �– Is there another means of providing the child

with a broken arm the state assessment? �– Is there another testing window at a later

date? If so, test the child then.

• Remember Virginia’s requirement that accommodation must be provided in classroom to qualify for testing accommodations.

Who is EXCLUDED• Persons who are current drug users –

OCR Senior Staff Memorandum, 17 EHLR 609 (1991)

• Additional exclusions - OCR Senior Staff Memorandum, 19 IDELR 869 (1993)

– Transvestitism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders ¾

– Compulsive gambling, kleptomania, or pyromania ¾

– Psychoactive substance use disorders resulting from current use of illegal drugs

Section 504 Eligibility is NOT Automatic, but may be

considered IF:• Suspension or expulsion is being considered

and you don’t have a basis to consider eligibility under IDEA;

• Retention is being considered; • A student shows a pattern of not benefiting

from the instruction being provided; • A student is referred for evaluation but it is

determined not to do an evaluation under IDEA; OR when a student is evaluated and is found ineligible under IDEA;

• A parent requests evaluation for a Section 504 plan;

Section 504 Eligibility is NOT Automatic, but may be

considered IF:• A student is chronically absent due to medical/

health issues; • A student develops a medical condition that may

need help, especially a chronic health condition; • A student requires more time for homework and in-

school assignments; • The student has substantial difficulty organizing,

planning, and completing assignments; • The student is identified as “at risk” or exhibits the

potential for dropping out of school;• A disability of any kind is suspected; or • A new building or remodeling is being considered.

THE SECTION 504 PLANTHE SECTION 504 PLAN

Issues for Team Consideration

The following factors are considered by a team knowledgeable about the student and the disability:– Evaluation results– Section 504/ADA eligibility (remember the list was

expanded January 2009)– The student’s unmet needs– Services and/or accommodations based on eligibility– Possible staff inservice– Least Restrictive Environment (LRE)– Remember, you can no longer consider mitigating

circumstances.

504 Accommodation Plan

Who creates it? Whoever works with the student (think

outside the box to include the bus driver, cafeteria staff, lunch monitors) that might encounter a situation where the impairment manifests itself.

Consider all school environments and requirements.

Get input from a variety of sources, including the nurse, student, parent.

WHO GETS A COPY?

Each teacher serving the student (don’t forget second semester teachers)

Other school staff who will need to implement provisions of the Plan (bus drivers, lunch aides, nurse, etc.)

Student, if able to understand and self-advocate

WHERE IS IT KEPT?

Cumulative file, so it is sent along with other records when records are requested by another school

A copy is sent to Department of Exceptional Programs

WHEN IS IT REVIEWED?

Once a yearIf classes are changed or added

that may have an impact on the Plan’s appropriateness/effectiveness

If the impairment changes significantly

If the building/class location changes

Implementation within the General

Education Environment

ACCOMMODATIONS and MODIFICATIONS

Implementation within the General

Education Environment

ACCOMMODATIONS and MODIFICATIONS

ORGANIZATION/MANAGEMENT:

• There may be a need to modify: – Instructional day (i.e., allow more time to

pass in the hall; modify class schedule) – Classroom organization/structure (i.e.,

adjust student’s placement in classroom; reduce external stimuli; change classroom management style)

COMMUNICATION

• There may be a need to modify: – Parent / student / teacher

communications (i.e., Journals, meetings, duplicate sets of texts.)

– Staff communications (i.e., Building team meetings, network with other staff, identify resource staff)

– School / community agency communication (i.e., assist in agency referrals)

POLICY AND PROCEDURES

• There may be a need to modify the school policies & procedures to: – Allow additional excused absences for

health reasons. – Adjust transportation, parking

arrangements. – Approve early dismissal for service

agency appointments.

TEACHING STRATEGIES

• There may be a need to modify: – Teaching methods (i.e., Adjust testing

procedures; individualize assignments; use technology)

– Teaching materials (i.e., Use materials that address student’s learning style; adjust reading level of assignments)

STUDENT ENVIRONMENT

• There may be a need to modify: – Classroom/building climate for health

purposes (i.e., use air purifier; control temper ature accommodate specific allergies)

– Classroom/building to accommodate equipment needs (i.e., develop evaluation plan for students who use wheelchairs; schedule classes in accessible areas)

STUDENT PRECAUTIONS

• There may be a need to modify building health and safety procedures:– For example:

• To accommodate special diets; and • To administer medication appropriately.

– See: Specialized Health Care Procedures, Virginia Department of Health and Virginia Department of Education.

DISCIPLINE

The same protections available

to students with disabilities under

IDEA are available to students qualified under Section 504.

DISCIPLINE

The same protections available

to students with disabilities under

IDEA are available to students qualified under Section 504.

EXCEPTIONS

• Students who are disabled solely by virtue of alcoholism or drug addiction. – These students are excluded from Section 504

consideration if they are current users.

• BUT -- Persons who have completed or are participating in a supervised rehabilitation program and continue to refrain from abuse may be qualified for Section 504.

An LEA may discipline a Section 504 student without applying due

process procedures if:

• The school is disciplining the student with respect to the use or possession of illegal drugs or alcohol; and

• The student is currently engaged in the use of illegal drugs or alcohol; and

• The disciplinary action taken with respect to the disabled student is the same as those taken with nondisabled students in similar

situations.

UNDERSTANDING THIS PROVISION

• “Currently engaging in use” is quite narrow. • In such cases, parents cannot resort to a

due process hearing under Section 504 to contest the disciplinary action.

• NOTE: OCR distinguishes between use and possession. “Possession” of illegal drugs or alcohol at school does not automatically equate with “current use” of drugs or alcohol.

BEHAVIOR IMPROVEMENT PLANS

• Individual BIP provisions supplant the use of the regular discipline code.

• Failure to discipline students in accordance with his/her BIP constitutes a failure to properly implement the Section 504 plan, which is a denial of FAPE.

BEHAVIOR IMPROVEMENT PLANS

• Individual BIP provisions supplant the use of the regular discipline code.

• Failure to discipline students in accordance with his/her BIP constitutes a failure to properly implement the Section 504 plan, which is a denial of FAPE.

• A BIP ensures that a student with a disability is able to maintain successfully the placement that has been determined to appropriately meet his educational needs.

A BMP is considered a

related service under Section 504 according to the 6th Circuit Court

of Appeals. *See Morgan v. Chris L., 25 IDELR 227, 6th Cir. 1997.

A BMP is considered a

related service under Section 504 according to the 6th Circuit Court

of Appeals. *See Morgan v. Chris L., 25 IDELR 227, 6th Cir. 1997.

FUNCTIONAL BEHAVIOR ASSESSMENTS (FBA)

• FBA’s are not mandated by Section 504;• They are mandated by MCPS Procedures;• OCR believes that: A BIP developed without

conducting a FBA does not meet the requirements of FAPE due to:– Teams must develop a BIP on the behaviors

being exhibited by the student which then provided equal access;

– Unless a Team determines the function of the exhibiting behavior then a BIP that meets

the needs of the student cannot be developed

FUNCTIONAL BEHAVIOR ASSESSMENTS (FBA)

• FBA’s are not mandated by Section 504;• They are mandated by MCPS Procedures;• OCR believes that: A BIP developed without

conducting a FBA does not meet the requirements of FAPE due to:– Teams must develop a BIP on the behaviors

being exhibited by the student which then provided equal access;

– Unless a Team determines the function of the exhibiting behavior then a BIP that meets

the needs of the student cannot be developed

MANIFESTATION DETERMINATION

REVIEW

MANIFESTATION DETERMINATION

REVIEW

MANIFESTATION DETERMINATION REVIEW (MDR)

• The school division must conduct a MDR before suspending a student with a disability for more than 10 days.

• Such a disciplinary action is considered a significant change in placement, triggering the re-evaluation requirements. – 34 C.F.R. § 104.35(a); OCR Staff Memorandum, 16 EHLR

491, OCR 1989; Broward County (FL) Sch. Dist., 36 IDELR 159 (OCR 2001).

MANIFESTATION DETERMINATION REVIEW (MDR)

• Factors to consider when determining if there is a “pattern” or removals: – Length of each suspension;– Proximity of the suspensions to each other; – Total time the student is excluded from school.

• [Alachua County (FL) School District, 27 IDELR 961, OCR 1997].

MANIFESTATION DETERMINATION REVIEW (MDR)

• Section 504 does not impose an obligation to provide continuing services for properly expelled students.

• However, it is discriminatory to not provide services if services are provided in these instances to nondisabled students.

• If the school division has adopted IDEA requirements to comply with Section 504, IDEA directs the school division’s obligations.

BUS SUSPENSIONS

• Section 504 parallels IDEA provisions that a bus suspension counts as a removal if FAPE is interrupted.

• According to OCR, only the school’s offer to provide alternative transportation erases the removal..

BUS SUSPENSIONS

• If the student comes to school on his/her own, or the parent brings the student, and the school does not offer an alternative (reimbursement or alternative form of transportation), OCR considers the student removed from his placement that day even if the student is there. – See OCR 1991 Mobile County (AL) Sch. Dist. 18

IDELR 70

KEY POINTS

• Accommodations that meets the need of the student

• Reasonable Accommodations• Equal Access• Refusal to implement a 504 Plan is willful

discrimination and a Section 1983 Violation• Current drug and alcohol use automatically

cancels 504 protections• Review MCPS 504 Guidelines• FERPA Confidentiality provisions apply to Section 504

KEY POINTS

• Students that move-in with existing 504 Plan should be implemented as written. After period of “reasonable” data collection time, can revise on MCPS forms.

• Health Care Plans or Section 504 Plans?• A 504 Plan can be a Health Care Plan

MCPS FORMS

• BE VERY SPECIFIC WHEN FILLING THIS SECTION OUT;• AREA OF CONCERNS:

• Should NOT be the Dr. Diagnosis;• All Interventions/Accommodations being used up to this point

should be listed and described, if necessary

• Evaluation Tool can be:• Observations;• Grades:• Dr. Report or Diagnosis• Parent provided testing;

• Be Specific when describing the findings

• Both Criteria need to be marked YES to be found Eligible;• Make sure your evaluation data supports your answers; • Make a note if MORE EVALUATION data is needed to make a

decision; Table the decision if more data is needed;

• THIS SECTION WILL BE CHANGED TO REFLECT A PARAGRAPH FORMAT FOR DESCRIBING SEVERITY AND DURATION

• RELATED SERVICES SECTION IS FOR PT, OT, SLI, AND BIP SERVICES

CHANGES TO THE FORMS

• Permission to Conduct Initial Evaluation;

• Rating scales on Life Activities will be paragraph format instead of a number scale;

• More Data Needed section will be added under Eligibility Determination Section

Questions/Dialogue