411 on 504

The 411 on 504

Karen HaaseHarding & Shultz

(402) 434-3000khaase@hslegalfirm.com

H & S School Law

@KarenHaase

The Plan for Today

The Plan for Today

• 504 Overview, general issues• Procedural Safeguards• Student Discipline

504 Overview

Primary Differences Definition of disability is unique to

each statute No funding under 504 504 encompasses

• Students • Employees • Patrons

Similarities School districts must evaluate and

determine eligibility Both require

• transportation, • accommodation/modification• related services LRE requirement

When is a district required to make a 504

referral? When district believes that the student

has a physical or mental impairment that substantially limits one or more major life activities AND

Student is in need of either regular ed with supplementary services or special ed. and related services

When is a district required to make a 504

referral? When district believes that the student

has a physical or mental impairment that substantially limits one or more major life activities AND

Student is in need of either regular ed with supplementary services or special ed. and related services

When is a district required to make a 504

referral? When district believes that the student

has a physical or mental impairment that substantially limits one or more major life activities AND

Student is in need of either regular ed with supplementary services or special ed. and related services

What constitutes a “substantial limitation?”

504 regs do not define: “The Department does not believe that a definition of this term is possible at this time.”

Phrase is to be defined by local education agency

“substantial limitation?”

Congress: a major life activity is substantially limited when “the individual's important life activities are restricted as to the conditions, manner or duration under which they can be performed in comparison to most people.”

“Disability” Defined by 504A person has a disability under Section 504 if he or she has a mental or physical impairment, has a record of such impairment, or is regarded as having such an impairment which substantially limits one or more major activities.

Changes to ADA

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) The ADA Amendments Act of 2008

increased the number of individuals who qualify for accommodation under both the Americans With Disabilities Act and Section 504 of the Rehabilitation Act of 1973.

Major Changes

First, the definition of “major life activity” has expandedNow include but are not limited to:Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Major Changes

First, the definition of “major life activity” has expandedNow include but are not limited to:Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Major Changes

Second, interpretation of “substantially limits” has been changed• Must evaluate impairment that is episodic or in

remission in active state• Must not consider mitigating measures

Episodic Impairments Asthma Chron’s Disease IBS Any other disease that can “come and

go” or has good and bad days

No “Mitigating Measures”

A student may be eligible under Section 504 even if the student’s disability or condition is controlled or mitigated, whether by medication, technology, etc. This means you may be evaluating

a hypothetical student

Mitigating Measures

Mitigating Measures Medication Medical supplies, equipment, appliances Low-vision devices (NOT ordinary

eyeglasses or contacts) Prosthetics Hearing aids/cochlear implants Learned behavioral or adaptive

neurological modifications Reasonable accommodations or other

auxiliary aids or services

Temporary Impairments

A “transitory impairment” is defined as an impairment with an actual or expected duration of six months or less. “Any impairment the duration of

which is less than six months would not constitute a disability.” James A. Garfield (OH) Local School

Dist., 52 IDELR 142 (OCR Feb. 19, 2009).

What if the major life activity impaired is not

learning? The child may still need a 504 plan The focus is on the effect on the student,

not the type of disability “Students may have a disability that in

no way affects their ability to learn, yet they may need extra help of some kind from the system to access learning.”

Health Plan ≠ 504 Plan

504/Health PlansTyler (Tx) Indep. Sch. Dist., (OCR 2010) • health care plan for diabetic students• Required to evaluate under 504Dracut (Ma) Pub. Sch., (OCR 2010)• health care plan for peanut allergy• Required to evaluate under 504

504/Health PlansOpelika city (AL) Sch. Dist., (OCR 2010) • health care plan for diabetic students• Required to evaluate under 504Jan. 19 Guidance Document

Health Plan Action Steps List of all kids with health plan List of all kids on medication and

what meds are List of all kids identified by parent

as having health condition Train school nurse!

Transferring Students

Transferring Students

Students may have a 504 in one district and not in another Not like IDEA, where school has to

implement IEP until MDT meets Each district is responsible for

determining for itself what the phrase “substantially limits” means

Letter to McKethan, 23 IDELR 504 (OCR 1994)

Do Not Take Shortcuts!

Can we just provide modifications without creating a 504 plan? No!! Remember: disability education

law is about PROCESS not RESULTS

Temple (TX) ISD, 25 IDELR 232 (OCR 1996)

Absences and Truancy

Absences and Truancy

Excessive absenteeism alone can trigger need to eval for 504 Doesn’t have to be based on parent

report Note that just because a student has

a disability does not mean all the absences are disability-related Perry (OH) Public School District, 41

IDELR 72 (OCR 2003)

504 and Private Schools

504 and Private Schools

Public schools aren’t obligated to provide 504 services at private schools • Letter to Vier, 20 IDELR 864 (OCR

1993) 504 applies to private schools

independently• Bristol (CT) Pub. Schs., 55 IDELR 207

(OCR 2010)

Can a Parent Demand a 504 Plan instead of an IEP?

Can a Parent Demand a 504 Plan instead of an IEP?

No When a child qualifies under

IDEA, district satisfies the provisions of 504 through the IEP

Letter to McKethan, 25 IDELR 295, 296 (OCR 1996)Lyons v. Smith 20 IDELR 164, 167 n. 11 (DCDC 1993)

Procedural Safeguards

Required Procedural Safeguards

“Except in extraordinary circumstances OCR does not review the results of individual placement or other educational decisions so long as a school district complies with the procedural requirements of Section 504 relative to identification, location, and evaluation of children with known or suspected disabilities and due process.”

Required Procedural Safeguards Schools are required to have a system

of procedural safeguards regarding identification, evaluation and placement System must include

• Notice• Opportunity to examine records• Impartial hearing • Review procedure

Required Procedural Safeguards Schools are required to have a system

of procedural safeguards regarding identification, evaluation and placement System must include

• Notice• Opportunity to examine records• Impartial hearing • Review procedure

Required Notices Under 504 General Nondiscrimination Notice Child Find Notice Notices to Parents:

• When 504 conferences are being held• Eval. and reeval. decisions • Eval results and eligibility decisions• Program decisions • Changes in placement or termination• Procedural Safeguards/Due Process

Required Notices Under 504

Required Procedural Safeguards Schools are required to have a system

of procedural safeguards regarding identification, evaluation and placement System must include

• Notice• Opportunity to examine records• Impartial hearing • Review procedure

Examine Records

Required Procedural Safeguards Schools are required to have a system

of procedural safeguards regarding identification, evaluation and placement System must

• Notice• Opportunity to examine records• Impartial hearing • Review procedure

Impartial Hearing No guidance in regs: check policies! Cases

• Ms. H. v. Montgomery County Bd. Of Ed., 56 IDELR 268 (M.D. Ala. 2011)

• Houston (TX) Indep. Sch. Dist., 25 IDELR 163 (OCR 1996)

• Letter to Anonymous, 18 ID1991) • Griffith (IN) Pub. Schs., 40 IDELR 105

(OCR 2003)

Impartial Hearing

Required Procedural Safeguards Schools are required to have a system

of procedural safeguards regarding identification, evaluation and placement System must include

• Notice• Opportunity to examine records• Impartial hearing • Review procedure

Review Procedure Must Have Internal Review/Appeal

Procedure No guidance in regs: check policies! Cases

• Pennsylvania Dep’t of Educ., 19 IDELR 1105 (OCR 1993)

• Massachusetts Dep’t of Special Educ., 18 IDELR 1115 (OCR 1992)

No administrative exhaustion

Review Procedure

Time for a Break?

504 and Student Discipline

504 and Student Discipline Good News: drugs and alcohol are

simple• No special 504 procedures for using or

possessing drugs or alcohol at school • Student Discipline Act procedures still

apply All other offenses: Must follow “IDEA

Light” process

IDEA Light????

IDEA Light???? OCR uses IDEA Discipline Rules in 504 First 10 days “free” If changing placement; must conduct a

manifestation determination• Is current placement appropriate?• Did disability cause or have a direct and

substantial relationship to, the misconduct • Was misconduct direct result of an IEP

implementation failure

IDEA Light???? If manifestation

• Cannot discipline• Must consider whether plan needs to be

change If not a manifestation

• Can discipline like regular ed student• No IAEP

504/IDEA and Extracurriculars• South Lyon (MI) Cmty Schs, 54 IDELR

204 (OCR 2009) • Marana (AZ) Unif Sch Dist, 53 IDELR

201 (2009) • Nashville (TN) Sch Dist, 53 IDELR 337

(OCR 2009)

504/IDEA and Noncurriculars• Raytown (MO) C-2 Sch Dist, 53 IDELR

239 (OCR 2009)• Shoreline (WA) Sch Dist No. 412 (24

IDELR 774 (OCR 1996)• Wilson County (TN) Sch Dist, 50 IDELR

230 (OCR 2008)

The 411 on 504

Karen HaaseHarding & Shultz

(402) 434-3000khaase@hslegalfirm.com

H & S School Law

@KarenHaase