implementing 504 in missouri’s schools

IMPLEMENTING 504 IN MISSOURI’S SCHOOLSTeri GoldmanTeri B. Goldman, LLC36 Four Seasons Center #337Chesterfield, MO 63017terigoldmanatty@aol.com

PURPOSE OF 504

To eliminate discrimination on the basis of disability in any program or activity receiving federal financial assistance from the Dep’t of Education.

Direct or indirect receipt of federal financial assistance.

Private schools.

FUNDING

504 is not a source of funds. It has a string attached to the receipt of federal funding.

Discrimination Prohibited

An entity with 504 obligations cannot directly, or through contract or other indirect means, discriminate on the basis of disability.

Must provide disabled persons with an equal opportunity to benefit.

Must provide disabled persons with aids, benefits or services that are as effective as those provided to others.

To be equally effective, the aids, services, etc. are not required to produce the identical result or level of achievement. Equal opportunity to obtain that same result.

May not provide different or separate aids, benefits or services unless that is necessary to provide aids, benefits or services that are as effective as those provided to others.

Who is disabled under 504?

A person is disabled if that person currently has a physical or mental impairment that substantially limits one or more major life activities.

If a student satisfies this definition, the student is entitled to FAPE if the school is a recipient of federal financial assistance.

Other definitions of disability

A person is disabled and subject to the nondiscrimination aspects of the law, but not the FAPE obligation, if:

(i) that person has a record of having an impairment that is substantially limiting; or

(ii) is regarded as having such an impairment.

Record of Disability

Has a history of, or has been misclassified as having, an impairment that is substantially limiting.

Examples – persons with histories of mental or emotional illnesses, heart disease or cancer.

Regarded As

Has an impairment that is not substantially limiting, but is treated by the recipient as though he or she does; or has an impairment that is substantially limiting only because of the attitude of others; or has no impairment but is treated by the recipient as having such an impairment.

Regarded As

Examples – persons with a limp, persons with disfiguring scars, AIDs.

Be cautious of individual accommodation and health plans prepared outside of IDEA and 504.

OCR – where teachers were asked to comply with voluntary scent-free program, student was regarded as having disability.

Regarded As

Consider adding language to such plans: This individualized plan provides for routine accommodations that the XYZ District makes available to any student who needs such routine accommodations. The District has no reason to suspect that the student who is the subject of the plan has a 504 or IDEA disability.

What is an impairment?

Physical or mental impairment means any physiological disorder or condition or any mental or psychological disorder.

An impairment, alone, is insufficient to qualify a student as 504 disabled.

Medical Diagnoses

OCR – a medical diagnosis, including medication, is neither necessary or controlling in determining disability status.

A medical diagnosis is simply evidence that the individual has an impairment.

Use terminology correctly.

Medical Diagnoses

OCR – finding a student eligible simply on the basis of a diagnosis violates 504.

Don’t second guess medical diagnoses, simply consider them as one part of the process.

What is a major life activity?

Major life activities mean functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

List is not exhaustive. Courts may add further to the list.

Major Life Activities

In the school context, learning is not the only major life activity to be considered when determining disability status.

Courts take a global view. The activity should be viewed as central to daily living. Don’t use small subsets of learning, such as spelling.

Major means important. “These terms need to be interpreted strictly to create a demanding standard for qualifying as disabled.”

Court Examples:Lifting, but only as part of set of basic

motor functions.Running is not.

It is doubtful that socialization is.Gaining weight and failing the bar

exam are not.Driving is not.Caring for other is not.Eating, for a diabetic person, is.Attending day care is not.

Shopping, gardening, golfing are not. Sexual reproduction is. Eating and drinking may be. Ability to process body waste is for

person with kidney disease. Attaining a high score on the SAT is

Specific activities not on the list are determined on a case-by-case basis.

What is substantial limitation?

First, look at whether the identified impairment impacts the identified major life activities.

Second, must determine substantial limitation on individual basis.

Third, conduct the analysis by looking at the individual with mitigating measures in place.

Mitigating Measures

Devices or practices that a person uses to correct for or reduce the effects of the mental or physical impairment.

Examples – eyeglasses, contacts, medication, hearing aids.

Substantial Limitation

The individual must be significantly restricted as to the condition, manner or duration in which the individual can perform the major life activity compared to the condition, manner or duration under which the average person can perform that same major life activity.

Supreme Court – to be substantially limited, the impairment’s impact must be permanent or long-term.

An individualized assessment of the effect of the impairment is particularly necessary when the impairment is one whose symptoms vary widely from person to person.

Eighth Circuit – it means limited considerably or to a large degree.

Critical – the comparison is to the average peer or person in the population. For students, measured by reference to performance of children at same age or grade level.

Comparison is not in relation to student’s potential or ability.

Use at least state or national data, where available.

Exclusions

Environmental, cultural, and economic disadvantage are not in themselves covered.

Other excluded conditions include bisexuality, other gender identity disorders, compulsive gambling.

Exclusions

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

The term individual with a disability does not include an individual who is currently engaging in the illegal use of drugs when the recipient acts on the basis of such use.

Exclusions

Individuals no longer engaging in drug use are not excluded if they have successfully completed a supervised drug rehab program.

If an individual is a rehabilitated drug addict or alcoholic, is not currently using, and otherwise meets the statutory definition, they can qualify as disabled.

Temporary Impairments.

Supreme Court – ADA – the impairment’s impact must be permanent or long-term.

EEOC – temporary, non-chronic impairments of short-duration, with little or no permanent long-term impact, are usually not disabilities.

Temporary Impairments

OCR – may be covered if substantially limiting and depending on severity and duration.

Case-by-case evaluation.

Case Examples

Post-traumatic stress disorder, standing alone, is not a disability and not necessarily an impairment.

Asthma was not a disability where it did not impact a major life activity. Attacks were infrequent and symptoms could be controlled with medication.

Case Examples

Former medical student was not disabled where he could not prove was substantially limited in learning and reading. Prior academic success was “fatally inconsistent” with his claim to be disabled.

A diagnosed learning disability is not necessarily a disability under the ADA and 504.

Case Examples

A diabetic person was not disabled where the disorder was controlled through insulin and diet.

A person with end-stage renal disease was disabled because was unable to control the body’s ability to process waste.

Case Examples Student with asthma was eligible

where asthma was severe and student was repeatedly hospitalized – substantially limited in breathing.

Student with asthma not eligible, even where placed on homebound at times, because her asthma, with inhaler, did not substantially limit breathing or other major life activities.

Case Examples

Student with ADHD not eligible where impairment did not substantially limit learning.

ADHD student not disabled where classroom performance was above average.

504 v. ADA

Both prohibit disability discrimination. ADA – no federal financial assistance

requirement. Post-dates 504; patterned after 504. Same definition of disability. ADA – applies to all employers that

employ 15 or more.

504 v. IDEA

One definition of disability v. 13 categories.

All IDEA students covered/protected by 504.

504 covers more students than IDEA 1-2 % solely 504.

504 v. IDEA

Impairments that may not be IDEA protected, but may be 504 protected:

Mental impairment – 70+ IQ

Social maladjustment

504 v. IDEA and FAPE

IDEA – an IEP that is reasonably calculated to provide meaningful educational benefit.

504 – provision of regular or special education and related services designed to meet the individual educational needs of disabled person as adequately as needs of nondisabled persons.

Implementation of an IEP one way to provide FAPE under 504.

OCR – but parents have no flexibility in choosing between IDEA and 504.

Impermissible for parents to reject IDEA services and require district to develop only 504 plan.

504 v. IDEA

IDEA covers only students who meet criteria.

504 covers more individuals and activities- employees, patrons, parents, facilities, extracurricular.

CHILD FIND

Obligation to Identify

and Evaluation Students

CHILD FIND

504 requires recipients operating public elementary and secondary education programs to annually undertake to locate and identify all students with disabilities.

Comply, in part, by public announcements and posting of forms and notices.

Evaluations

Need written procedures regarding evaluations and eligibility determinations.

Parents cannot demand a specific evaluator.

Referrals – teachers should document why they believe student may need 504 assistance.

Child Find and Evaluations

504 requirements a preplacement evaluation of any person who, because of disability, needs or is believed to need special education or related services before taking action with respect to initial placement.

Significant changes in placement require revaluations.

Evaluations

A student seeking 504 eligibility must permit the school to conduct and evaluation to determine if the student is a person with a disability.

A placement of a student in 504 without an evaluation violates 504.

Evaluations

Districts are not required to evaluate or identify, simply at parent request, where no reason to suspect a disability.

If refuse, should provide notice of action and 504 procedural safeguards.

Evaluations

District is obligated to conduct evaluation where reason to suspect that student may meet 504 definition of disability.

If a parent refuses to consent to an evaluation to determine existence of disability, the student is considered not to be disabled.

Evaluations

No automatic obligation to evaluate students for 504 eligibility after the determination of non-IDEA eligibility.

DO NOT USE 504 AS A CONSOLATION PRIZE!!!!

Evaluations

504 does not necessarily require a medical evaluation, but if the team believes one is necessary, it must be provided at no cost to parent.

Must consider, but not follow, outside evaluation recommendations.

Evaluations

504 does not specify the form of the evaluation.

Evaluations

Need written procedures regarding evaluations and eligibility determinations.

Parents cannot demand a specific evaluator.

Referrals – teachers should document why they believe student may need 504 assistance.

Evaluations

Need referral, screening (review of existing data) and evaluation procedures.

A medical diagnosis, alone, is not an evaluation.

Evaluation procedures should be consistent with those used under IDEA with respect to:

Evaluations

Validation and reliability.

Proper administration.

Sufficient testing in all areas of suspected disability.

Evaluations

Not automatic obligation to evaluate students for 504 eligibility after the determination of non-IDEA eligibility.

DO NOT USE 504 AS A CONSOLATION PRIZE!!!!

Evaluations and Consent

OCR, not 504, requires written parental consent for initial 504 evaluations.

OCR does not, at this time, require consent for reevaluations.

Districts may, but are not required to, use due process to override refusal to consent.

Reevaluations

Must have procedures for periodic reevaluations of students.

No 3-year requirements.

Discontinuation of 504 eligibility requires a reevaluation.

Independent Educational Evaluations

No specific requirement in 504.

OCR has sometimes interpreted 504 as requiring that in certain circumstances.

Evaluation Timelines

None specified in 504 or by OCR.

Complete without undue delay following referral.

Following IDEA timelines (60 days) should suffice.

Child Find and Referrals

Routine Accommodations – if a student only needs routine accommodations, there is probably no reason to suspect a 504 disability.

Consider list of routine accommodations.

Determining Students’ Eligibility

Referral Process Parent Communications Screening Evaluation Eligibility Meeting

Eligibility

Remember – student must have current impairment that is currently substantially limiting a major life activity.

Determined by team of persons knowledgeable about the student, 504, evaluation data and other information.

Eligibility

No mandatory team requirements.

Parents not mandated members, but should always be invited.

Eligibility Case Studies

Appendix with hypotheticals and sample forms.

Team Process

504 requires the use of a multidisciplinary team.

Eligibility and programming decisions should not be made by one individual.

PROVIDING ACCOMMODATIONS TO ELIGIBLE STUDENTS

Accommodation Plans

Must provide FAPE regardless of the nature or severity of the person’s handicap.

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

Accommodation Plans

OCR rejects the reasonable accommodation standard, although courts have implied.

Requirement is FAPE (through regular or special education). Designed to meet the needs of the disabled person as adequately as needs of nondisabled persons.

Accommodation Plans

OCR – 504 does not require parent participation in placement decisions generally.

Requirement of knowledgeable team. Classroom teachers generally are

considered knowledgeable. 504 does not give parents right to

dictate methodology

504 Plans

Team determines accommodations students needs to have equal opportunity to succeed in classroom.

504 leaves to districts the range of information to be included.

Should describe all accommodations with sufficient detail to avoid ambiguity and nonimplementation.

504 Plans

Staff must be notified of their responsibilities for providing necessary accommodations.

Accommodations should be tied to the impairment and substantial limitation.

Do not over accommodate. Behavior issues may require BIP.

Essential Plan Requirements Nature of disability and MLA limited. Educational impact of disability. Necessary accommodations and

implementers. LRE considerations. Related services. Persons participating. Date/parent signature.

Related Services

May be part of an appropriate education.

Transportation must be provided if necessary.

Testing Accommodations

May be necessary in plan. Look to see if accommodations and

modifications might change outcome or validity of test.

Accommodate only those areas impacted by 504 disability.

504 requires equal opportunity, not advantage.

Do not use “cookie cutter” approach.

Accommodation Plans

One hour limit on daily homebound instruction violated 504 because it failed to take into account individual needs.

Must consider all outside information; not required to implement all recommendations.

Placement on homebound solely based on medical document and parental request violated 504.

EXAMPLES

Assignment of para to monitor symptoms and snacks for diabetic student; nurse training for staff; administration of medication

Teachers to sign planner daily but student responsible for asking

Student undergoing chemo allowed to wear hat in classroom

Epi-pen training for student with peanut allergy; substitutes to be notified of student’s needs

Peer education for students regarding hygiene

Modified grading Classroom aides CD texts and notetaker for student with

limited use of arms and upper body

Room set aside for children with multiple chemical sensitivity; remove carpeting – air filters

Books on tapes, when available; outline of teacher presentation, when available

50% extra time on tests Second set of texts

504 students generally not candidates for ESY.

Some 504 students may be entitled to ESY.

District may not limit ESY only to students with IDEA disabilities.

Transition

Not specifically required. But . . . .

TRANSFERS

In-District

From other Districts:

Placement

In interpreting evaluation data and in making placement decisions, the recipient must draw upon information from a variety of sources, establish procedures to ensure that information from all sources is documented and carefully considered, ensure that the placement decision is made by a group of persons, including persons knowledgeable about the child,

the meaning of the evaluation data, and the placement options; and ensure that the placement decision is made in conformity within 504’s least restrictive environment requirements

The recipient must educate, or provide for the education of, each qualified handicapped person in the jurisdiction with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person. 34 C.F.R. 104.34(a).

Must place in regular education unless it is demonstrated that the education of the person in the regulation environment with the use of supplementary aids and services cannot be achieved satisfactorily.

If place in other than regular education setting, the recipient shall take into account the proximity of the alternate setting to the person’s home.

Commentary – allows taking into account the effect on other students but only when it is extremely adverse.

Cases: Excluding students from any placement solely

because of disability would violate 504. Placing student in less restrictive environment

solely to accommodate parent despite overwhelming evidence of inappropriateness of placement is denial of FAPE.

Refusal to place CP student in regular education classes did not violate 504 where deficiencies could not be overcome with aide and communication device in that setting.

Failure to individually justify removal of disabled students from regular education violates 504.

Providing adaptive PE in segregated environment to meet teacher’s, rather than student’s, needs violates 504.

Placement of student in trailer with aide but without teacher violates 504’s LRE requirement.

District violated 504 when it decided not to place student in neighborhood school based on unsubstantiated concerns for student’s safety.

Decision to limit attendance of kindergarten student with behavioral problems to half days, which was not based on credible medical or educational reasons, violated 504.

Determination that student with diabetes needed to test blood-sugar levels outside classroom was dictated by school practice and concerns of other students rather than student’s individual needs and violated 504.

LRE and Nonacademic Settings In providing or arranging for the provision

of nonacademic and extracurricular services and activities, including meals, recess, etc., the recipient must ensure that handicapped persons participate with nonhandicapped persons to the maximum extent appropriate to the needs of the handicapped person. 34 C.F.R. 104.34(b).

LRE and Nonacademics

District did not violate 504 when team decided that student’s behavior prevented him from riding regular education bus.

Failure to demonstrate educational necessity for separate graduation ceremonies for students with severe disabilities violates 504.

If a public or private residential placement is necessary to provide FAPE, the placement, including non-medical care and room and board, shall be provided at no cost to the person or his or her parents or guardian.

If a recipient makes FAPE available and the person’s parents or guardian decide to place the person in a private school, the recipient is not required to pay for that person’s education in the private school. Disagreements about FAPE are subject to 504’s due process procedures.

TRANSPORTATION

If a recipient places a disabled person in or refers a disabled person to a program not operated by the recipient as a means of providing FAPE, the recipient must ensure that adequate transportation to and from the program is provided at no greater cost that would be incurred by the parents if the person were placed in the recipient’s program.

TRANSPORTATION

District was required to reimburse parent for transporting student to OT provided at hospital.

Where parents unilaterally place student at private school and fail to ask district to pay, district is not responsible for transportation costs.

504 Plans

Distribute copies to teachers and staff. Don’t forget necessary administrators, substitutes and ISS.

Follow-up to ensure implementation. Reconvene team as needed for

modifications to plan. Consider annual review requirement. Notice to parents when making changes

PEANUT ALLERGIES

Is an allergy a disability?

Same definition and analysis: it is impairment, but does it substantially limit a major life activity.

Take mitigating measure into account.

6% of school-aged students nationwide have a food allergy according to one source.

Land v. Baptist Medical Center (8th Cir. 1999). Decided under the ADA Day care center refused to serve

child who required monitoring of diet Two reactions at school due to

peanut exposure

Court held that day care did not violate ADA because child was not substantially limited in the major life activities of eating and breathing.

Concluded that eating and breathing were major life activities. Attending day care is not.

The doctor described the impact as “a little bit.”

Mystic Valley Regional Charter School (SEA MA 2004).First grader with life threatening

peanut and tree nut allergy.Parent claimed needed a ban on all

peanut and tree nut products in the student’s classroom.

District asked other parents to refrain from sending such products to school.

District required staff and students to wash hands before and after eating.

School had staff training on recognition of anaphylactic reactions and how to administer medications.

School stopped supplying peanut butter as an alternative lunch.

School required the student to eat with a chosen classmate at peanut free table.

School had tables washed after meals.

School position – what they did was reasonable accommodation. Classroom ban would impose an undue burden.

Decision

Student’s allergy was life threatening. As a result, it warranted a classroom

ban. Students are impulsive and share food.

School discriminated because student was not allowed to participate in educational experience involving Asian food.

Lunch table assignment were stigmatizing and isolating.

Student was entitled to equal access to a pool of other students during snacks and lunch as his peers.

School failed to prove that a classroom ban would fundamentally alter the school’s educational program.

R.P. v. Cascade Sch. Dist. (SEA OR 2002) 4th grade student with severe allergy to

peanut and tree nut products. Touching item which has been touched by

someone who has touched nuts may cause hives or rash.

Symptoms where ingestion include life threatening symptoms.

Parents and district developed health protocol:Don’t give student products containing

nutsStudent should avoid contact with nut

productsLabels should be reviewed before

distributing foodTrain students, personnel.

Protocol followed but student exposed to peanuts at school.

Parents then requested more detailed plan.

Parents did not request nut-free school.

New Plan:Steps taken to eliminate nut products

from student’s classroomAllergy free table in lunchroomFood preparation for student to be

nut-freeStudents to be trained re: her allergy,

prevention and appropriate response

Staff to be trainedMedication to be available to any

school setting, including field tripsStudent’s safety to be maintained on

bus504 plan included transportation

medical protocol and health management protocol.

During next year, student had five exposures to peanuts for which epipen was administered. Period of time after that, no contact with nuts.

Then – birthday treats with nuts and field trip exposure

Continued discussions with parents who were not satisfied. Removed student from school.

Continued discussions about 504 plan to address parent concerns. More detail added to plan.

Student remained out of school. Parents requested more additions to plan. District offered to change placement based on belief that plan could no longer be implemented in public school. LRE – home.

Parent filed due process and hired tutor for student.

Parents argued district should provide tutor at home and requested compensatory services.

Decision

District offered a 504 plan which was designed to meet student’s individual needs as adequately as the needs of students with disabilities.

District did not violate 504. Parents not entitled to reimbursement

for tutoring or compensatory education.

District offered a 504 plan that provided accommodations and services that allowed student to safely access school as adequately as students without disabilities.

Undue burden on district to require for nonmandatory activities at which any student’s attendance is voluntary that district police behavior of others and prohibit provision and distribution of food containing or processed with peanuts or tree nuts or require all participants to wash their hands, etc.

Mitigating Measures

If medication is administered immediately after the allergic reaction and the medication takes effect and minimizes the impact of the allergy is the child substantially limited?

Implementing 504 Plans

If student qualifies as disabled, write plan and address the limitations imposed by the allergy on the identified major life activity.

Peanut and derivative bans or restrictions.

Para on playground? Scent-free ambulance?

Implementation

Monitor for full implementation of plan. Farmington MA Public School (OCR

2005) - parent of kindergarten student with life-threatening peanut and nut allergy complained that district failed to implement 504 plan. OCR found for the District.

Plan called forStaff training on epipen useNotification of substitute staff of

allergy and protocolsKeeping coded chairs at peanut free

table in lunchroomTaking field trips into considerationKeeping classroom nut freeEducating peers about the allergy

School-wide Bans

Are they necessary? Are they reasonable? Are they feasible? Can they be enforced and monitored? Is homebound an alternative way to

address a severe case?

Discrimination Issues

Are your accommodations socially isolating and stigmatizing?

Is the student being excluded from any of the district’s program or activities?

Don’t forget to address bus, field trip and other non-academic areas.

Don’t forget to address food brought in for parties, etc.

Resources

Food Allergy & Anaphylaxis Network

Tips for Educators

Free Allergy Action Plan

www.foodallergy.org

Have a food-safety plan in which you regularly communicate with parents and staff.

Have procedures for emergencies. Ask parents to provide updates on

changes in child’s health or medications.

Coordinate with school nurse to ensure proper storage of medications.

Designate staff member to administer medications in case of serious allergic reaction. Make sure that person is properly trained.

Enforce a ‘no eating’ policy on buses. Find out where nearest hospital is to

field trip site. Encourage students not to share food.

DISCIPLINE

Discipline

Not addressed in statute or regulation. OCR – FAPE and prohibition of

exclusion on basis of disability. Must track disciplinary removals. Removal from placement for more

than 10 days constitutes change in placement.

Drugs and alcohol. Possession v. use.

Discipline

504 regulations require manifestation determination before significant changes in placement through disciplinary action.

Consecutive days. Pattern of exclusion. Length of each

suspension, proximity and total amount of time excluded.

DISCIPLINE

Cumulative OSS of 15 days, but only 10 after being on 504 plan, did not constitute significant change in placement and, therefore, manifestation determination required.

DISCIPLINE

Five suspensions totaling 29 days over 5 months was significant change in placement; 3 suspensions totaling 12 days during 6 weeks and 4 suspensions totaling 23 days during 6 months were not change in placement.

DISCIPLINE

No change of placement and, therefore, no need to conduct manifestation here:Oct. 21 – 2 OSSOct. 29 – 2 OSSFeb. 3 – 2 OSSFeb. 21 – 4 OSSApril 2 – 5 OSS

DISCIPLINE

No violation where ADHD student brought bullets to school, struck principal and threatened to kill her, and district properly convened team and conducted manifestation determination. Properly concluded behavior not related.

DISCIPLINE

Where student’s plan did not stipulate transportation as a related service, district did not violate 504 when it did not hold manifestation determining meeting before issuing bus suspension.

If transportation is related service, may not be terminated before determination of relatedness. If behavior related and student is dangerous, district may change mode or method of transportation.

DISCIPLINE

504 did not require manifestation determination prior to suspension from football team because suspension did not result in removal from educational program or failure to provide educational services.

DISCIPLINE

Where student was individual with disability engaged in illegal use of drug, not entitled to manifestation determination prior to significant change in placement.

DISCIPLINE

Under 504, districts may cease educational services during periods of suspension that exceed 10 school days if nondisabled students are treated in that manner and the student’s misconduct is unrelated to the disability.

Discipline

No FBA or BIP requirements explicit in 504.

No stay-put provision. No 45-day alternative interim

placement provision for drugs, weapons, serious bodily injury.

Suspected disabilities/not yet identified. Knew or should have known.

PROCEDURAL SAFEGUARDS

Procedural Safeguards

Must have 504 procedural safeguards that include:NoticeAn opportunity for parents or guardian to

examine relevant records;An impartial hearing with opportunity for

participation by the person’s parents or guardian and representation by counsel, and

A review procedure.

Procedural Safeguards

Must use impartial hearing officers in due process hearings; must not have personal or professional conflict of interest.

Use of private attorney as hearing officer does not violate 504.

Grievance Procedures

A recipient that employs fifteen or more persons shall designate at least one person to coordinate its 504 efforts.

A recipient that employs 15 or more shall adopt grievance procedures that incorporate appropriate due process standards and provide for the prompt and equitable resolution of complaints about discrimination.

SAFEGUARDS

District refusal to provide due process hearing until parent exhausted grievance procedure violated 504.

Districts may not require parents to use other established procedures before requesting 504 due process hearing.

Fee for copies did not deny parents procedural right to examine records.

SAFEGUARDS

District failed to inform parent of right to appeal denial of eligibility for services.

District satisfied 504 where parents given opportunity to review files even after parents requested copies.

Schools have no obligation under IDEA to notify parents of 504 rights.

SAFEGUARDS

No explicit stay-put provision; fair due process, however, includes a district waiting for results of due process hearing before making change.

Districts may request due process where parent refuses to provide consent for initial evaluation or placement.

SAFEGUARDS

If parent wishes to discontinue 504 services and district disagrees, district must initiate due process hearing.

No 504 timelines for hearing procedures; OCR looks to standards of fairness and reasonableness.

Significant changes in placement require notice to parents.

Forms and Procedures

Referral Eligibility Evaluation Accommodation Plan Procedural Safeguards Grievance Procedures

ENFORCEMENT

United States Department of Education – Office for Civil Rights

Kansas City, Missouri Regional Office

Complaint Process

ENFORCEMENT

No state-level enforcement

Local level enforcementGrievance procedures for claims of

discrimination

Due Process Hearings for matters relating to evaluation, identification, FAPE

OCR COMPLAINTS

Under federal law, OCR has broad authority to investigate claims of discrimination.

OCR can request submission of records and documentation to investigate compliance. “Each recipient shall permit access during normal business hours to records and facilities as may be required to ascertain compliance.”

If OCR finds 504 violations, can order remedial action to overcome effects of discrimination such as termination of federal funding.

OCR COMPLAINTS

Who can file? Any person who believes himself or any specific class of individuals to be subjected to discrimination may be himself or by a representative file a written complaint. Must be filed not later than 180 days from the date of alleged discrimination unless time is extended by OCR.

OCR COMPLAINTS

OCR is required to make a prompt investigation if the information indicates a possible failure to comply.

Screen – discretion not to investigate. Investigation to include, where appropriate,

review of pertinent practices and policies of the recipient, the circumstances under which possible noncompliance occurred and other relevant factors.

OCR COMPLAINTS

Emphasis on voluntary compliance – if the investigation indicates a failure to comply, OCR will inform recipient and attempt to resolve the matter by informal means whenever possible. If that is not successful, OCR has authority to impose remedies.

OCR COMPLAINTS

If investigation warrants no action, the OCR will inform the district and complainant, in writing, of that determination.

OCR COMPLAINTS

Generally, OCR examines procedures rather than substance of decisions.

If complainant is seeking to have substantive educational decisions examined, OCR generally will refer that person to due process procedures.

OCR GENERAL ANALYSIS

Is the student disabled under the 504 definition?

Is the student “otherwise qualified”? Has the student been discriminated

against on the basis of disability?Has the district provided FAPE as defined

by 504 and/or the IDEA?• Have the student’s individual needs been met

as adequately as the needs of nondisabled students?

• Has the student been educated in the LRE?

• Are the services, facilities and activities provided to students with disabilities comparable to those provided elsewhere within the district?

• Has the student been evaluated using required procedures?

• Has the student’s placement been determined under proper procedures?

Are proper procedural safeguards in place and communicated to parents?

Has there been any disparate treatment on the basis of disability?

Has there been any retaliation?

Have there been equal educational opportunities for students with disabilities?

OCR COMPLAINTS

Getting the letter from OCR:

Complainant and allegations

Request for education records

Request for policies and procedures

OCR COMPLAINTS

Receipt of complaint – steps to take:Assign an individual as contact person.Find out as much about the complaint as

possible. Verify identity of student.Consult legal counsel/Liaison?Consider a voluntary corrective action

plan as an early resolution. Cooperate with investigators. Offer to

draft a plan for the investigator’s review. Can include disclaimers of liability.

OCR COMPLAINTS

Investigation:OCR will review materials submittedSuperintendent may receive a letter

stating OCR findings based on record review with an Agreement to Resolve Contract.

Agreement to Resolve may be sent without any findings

To sign or not to sign - negotiations

Consider a written response in addition to submission of records.Prepare a chronology of events, if

relevant, to assist OCR in determining what occurred.

Label the files and cross-reference those to the OCR’s letter of investigation and the District’s response.

VOLUNTARY RESOLUTION District has opportunity to negotiate a

voluntary resolution with OCR.

Can negotiate an agreement in which district does not admit liability but agrees to undertake specified actions.

Can refuse early resolution and insist on investigation with factual and legal findings and conclusions.

ON-SITE INVESTIGATIONS

Be prepared.

Make sure staff is available, if necessary, to speak to OCR representatives.

Have policies and procedures available for review.

OCR COMPLAINTS - PRACTICAL TIPS

Be cooperative not confrontational. Create open dialogue. Be proactive – ask OCR to review your

policies and procedures and provide feedback.

Provide the information that OCR requests. Before the complaint, ensure that you have

appropriate policies and procedures in place and ensure that staff is trained and knowledgeable about 504.

SECTION 504 – DUE PROCESS HEARINGS

Federal Regulations:A recipient that operates a public

elementary or secondary program shall establish and implement, with regard to identification, evaluation or educational placement, a system of procedural safeguards that includes

• An impartial hearing with opportunity for participation by the person’s parents or guardian and representation by counsel and a review procedure.

Compliance with IDEA procedures is one means of meeting this requirement.

But – not in Missouri. Cannot use IDEA State three-member panel system for 504 issues.

Can establish a different and more streamlined procedure.

504 due process hearing procedures are established by each district – not by the State.

504 DUE PROCESS

Your 504 procedural safeguards must specify the parent’s right to request an impartial hearing. Can add additional information regarding that process.

Safeguards must explain the review procedure, the right to examine relevant records, the right to an impartial hearing and the right to counsel.

Must render decision in timely manner. Failure to provide a hearing, if requested,

violates 504.

Must provide access to records. Districts can suggest mediation upon

receipt of a request, but cannot use mediation as a means of delaying the hearing.

If receive adverse decision, may not disregard unless file a judicial appeal in which request stay of enforcement.

Due Process v. Grievance

Must have an internal grievance procedure in additional to due process procedures.

Grievance – claims of discrimination. Due Process – claims relating to

evaluation, identification, placement, FAPE.

Cannot require parents to exhaust the grievance procedure before providing an impartial due process hearing.

504 Due Process

Each district can establish its own procedures and include those in its procedural safeguards. Consider: One hearing officer v. multiple Hearing officer must be impartial – no personal

or professional interest conflicting with that of student.

No requirement to involve parents in selection of HO.

Who would select if receive request. Can use private attorney.

504 Due Process

Legal counsel participation

Timelines – time for filing requests, timeline for hearing and decision to be completed

Must monitor timelines of hearing decision. Must appoint new HO if original fails to render timely decision.

Court reporter v. other type of record

How parents should file a 504 due process request and to whom it should be made.

Districts are obligated to implement their own internal procedures as written even if those procedures are not required by OCR or 504.

OTHER ISSUES

Districts, as well as parents and guardians, can initiate due process under 504.

504 contains no stay-put provision, but OCR has stated that a fair due process system would encompass the district waiting for the results of the process before making a change in the student’s program or status.

PRACTICAL TIPS

Check your district’s procedures to see if you have both a grievance procedure and due process procedure.

Consider adding local detail regarding due process procedure to procedural safeguards.

PRACTICAL TIPS

If receive request, add expeditiously. Immediately select hearing officer.

Consult legal counsel. Gather education records. Discuss claims with relevant staff. Determine if procedures followed and

decision is correct. Discuss whether to mediate or informally

resolve.

DISCRIMINATION ISSUES

NONACADEMIC SETTINGS

Under 504, the recipient must ensure that disabled persons have the opportunity to participate with nondisabled persons to the maximum extent appropriate to the needs of the disabled person in nonacademic and extracurricular services and activities.

NONACADEMIC SERVICES

Standard is one of equal opportunity for participation.

Includes counseling services, recreational activities, transportation, health services, special interest groups.

A recipient may not deny a qualified disabled person the opportunity to participate in or benefit from an aid, benefit or service.

A recipient may not provide different or separate aids, services or benefits to disabled persons unless that is necessary to provide those that are as effective.

Participation in extracurricular activities and nonacademic services is not a FAPE issue.

Issue only of accessibility and equal opportunity for participation.

Don’t include in 504 plans.

PROGRAM ACCESSIBILITY

All programs, services and activities must be accessible and usable by individuals with disabilities.

Access is required for participants, employees, patrons. Personal devices, such as hearing aids, need not be provided.

Ex. – interpreters, braille.

ACCESSIBILITY

Program, not necessarily building, must be accessible.

Can move classrooms to ensure program accessibility.

Accessible entrance need not always be main entrance.

Accessibility

Buildings in which a student may spend extended periods of time must meet a higher degree of accessibility than those in which a student spends relatively short periods of time. (OCR 2004).

ACCESSIBILITY

Buildings must have full range of accessible support facilities: Parking Accessible Routes Entrances Signage Rest Rooms Drinking Fountains Alarms Doors Telephones

ACCESSIBILITY

Look at classrooms, computer labs, lunchrooms, sports facilities, playgrounds, libraries, science labs.

504 prevents discrimination against persons with disabilities resulting from inaccessible or unusable facilities.

COMPARABLE FACILITIES

If the recipient operates a facility for persons with disabilities, it must ensure that the facility and services provided there are comparable to the recipients’ other facilities and services.

Accessibility

OCR – 1993 – signage must be accessible to individuals with disabilities without assistance from another person. The guidelines contemplate the signs needing to be read by individuals in wheelchairs. But must allow for possibility that others will require signage.

Uxbridge (MA) Pub. Sch., 20 IDELR 827 (OCR 1993) – school failed to make programs and activities accessible because school had no raised letter or number signage to identify classrooms, offices, library, nurse’s office, cafeteria and gym. Affected access to all programs, activities and services at the school.

Cleveland Heights (OH) Sch. Dist., 37 IDELR 131 (OCR 2002 ) – district agreed to modify restrooms in middle school to provide for properly maintained toilet seat adapters and to adjust height of mirrors and toilet paper dispensers.

Accessibility

OCR Memorandum 1992 – district must place signs at all inaccessible entrances, directing users to an accessible entrance or to location where information about accessible facilities can be obtained. The international symbol for accessibility must be used at each accessible entrance.

Examples:Separate gyms – permissible if

comparable to class space for students without disabilities.

Trailers – where not comparable – i.e., no water fountains, bathrooms, violates 504 based on noncomparability.

Can violate comparability requirement if recipient provides significantly less adequate space for disabled students compared to regular education students.

Fort Worth (TX) Indep. Sch. Dist., 19 IDELR 856 (OCR 1993) – district violated 504 and ADA because two schools lacked accessible support facilities such as rest rooms, water fountains, alarm systems and signage. As result, district unreasonably limited participation of disabled students.

Transportation

Section 504 at 34 C.F.R. § 104.4(a) provides that no qualified individual with a disability shall be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination. Section 504, at 34 C.F.R. § 104.33(a), states that a recipient shall provide a free appropriate public education (FAPE) to each qualified individual with a disability.

34 C.F.R. § 104.37(a)(1), provides that nonacademic and extracurricular services and activities shall be provided in such a manner as is necessary to afford students with disabilities an equal opportunity for participation in such services or activities. 34 C.F.R. § 104.37(a)(2) defines transportation as a nonacademic service or activity.

TRANSPORTATION

If the recipient places a student in a program not operated by the recipient, the recipient must ensure that adequate transportation to and from those services is provided at no greater cost than would be incurred by parents if student placed in recipient’s programs.

LENGTH OF BUS RIDES

Cannot provide students with disabilities a bus ride that results in shortened school day unless legitimate reason to do so.

Bus rides for disabled students that are lengthier than for nondisabled students may violate 504.

REIMBURSEMENT

Reimbursing parents using district standard mileage rate does not violate 504.

Cannot require parents to provide transportation as related service; can offer mileage reimbursement.

HARASSMENT ISSUES

Must take steps to ensure that transportation services are safe and address allegations of physical and verbal abuse occurring on bus rides.

DISCIPLINE

Letter to Veir (OCR 1994) – if transportation is related service, district may not unilaterally revoke that service even where student has exhibited disruptive or dangerous behavior during transportation without taking steps that confirm to 504 disciplinary procedures. May, however, seek to change method of providing such services if student poses danger to self or others.

ADA ISSUES

Wheelchair securement

Staff training

District/State Regulations

Richland (WA) Sch. Dist. (OCR 1995) – concluding that student with rheumatoid arthritis and tendonitis did not require transportation as related service.

Shasta County (CA) Office of Educ. (OCR 1990) – finding that student required door to door transportation even where aide was required to walk with student because of poor road conditions.

Jim Thorpe (PA) Sch. Dist. (OCR 1993) no discrimination even where transportation time exceeded state’s recommended guidelines where instructional time exceeded that of district’s other kindergarten children, but finding that district violated 504 and ADA where failed to evaluate student’s need for specialized transportation.

Bladen (NC) County Sch. Dist. (OCR 1994) – finding for parents on transportation issue where student spent almost two hours each way on mini-bus and, as result, missed 2 ½ hours per day of instruction.

Polk County (FL) Sch. Dist. (OCR 2000) – holding that extended bus transportation time for group of disabled student was due to fact that man of them required personalized care when picked up and dropped off.

Elk Grove (CA) Unified Sch. Dist. (OCR 1994) – district did not offer legitimate reason to deny bus privilege to student with respect to field trip.

San Diego Sch. Dist. (OCR 1998) – special day class students denied equal access to after school programs since only nondisabled students were provided late activity bus.

PRACTICAL TIPS

Consider student’s individual needs. Is transportation a necessary related

service under 504 standards. Look at time of bus routes – are

school days of disabled students being consistently shortened because of transportation routes.

Need for paraprofessional assistance

Need for training for bus drivers. Need for evaluation for transportation

or special transportation needs. Consider need for specialized

equipment. If so, write into 504 plan. LRE considerations. Door-to-door/curb-to-curb.

FIELD TRIPS

Legal Issues

When and to what extent must students with disabilities be included in field trips?

What accommodations must a district make to enable disabled students to attend such trips?

Who can go?

Must be determined on a case-by-case basis.

District has burden of proving that student should not participate.

If not part of the curriculum, IEP or 504 team need not make the decision.

Extracurricular activities are not part of FAPE per OCR.

Reasons for Exclusion

Exclusion on basis of academic programming considerations may be permissible where purpose of field trip is related to curriculum and students with disabilities are not studying that curriculum.

Reasons for Exclusion

Robert H. v. Nixa R-2 Sch. Dist. (W.D. MO 1997) – district’s refusal to allow student to attend field trip did not violate IDEA because student’s participation was conditioned on completion of homework and student failed to meet this condition.

Reasons For Exclusion

Medical – may prohibit student from attending field trip if it believes participation presents unacceptable risk to student’s health or safety.

Need to research the nature of disability and possible accommodations before deciding to exclude on this basis.

Quaker Valley (PA) Sch. Dist. (OCR 1986) – district violated 504 when excluded student with neurodegenerative disorder from field trip to local TV station. District afraid student would injure herself because of ambulatory problems. Evidence did not support district reasons for excluding child. Could have participated had been provided same accommodation provided at school – escort holding her hand. Principal made unilateral decision to exclude without discussing with parent or without notifying parent of trip.

North Hunterdon Regional (NJ) High Sch. (OCR 1996) – no violation of 504 where district excluded student with CP and epilepsy from field trip because district had not categorically denied student that opportunity on basis of disability. But – investigation showed district had no policy for determining whether student could attend off-campus activity if medical concerns existed. School nurse in charge of decision on day of event.

Accommodations

If student requires related aids or services to participate in school program, including field trip, district must provide.

In OCR complaints, districts have been required to make the same accommodations available on field trips as those provided to students in the classroom.

Accommodations – Parent Chaperone District cannot require parent of

student with disability to accompany student on field trip when similar obligation not imposed upon parents of nondisabled students.

May invite parent to accompany student. If student needs aids or services to participate, must be provided by district – not parent.

Calcasieu Parish (LA) Sch. (OCR 2005) – violation of 504 where district required parents of student with insulin-dependent diabetes to attend field trips.

Accommodation and Accessibility Issues

Before deciding on field trips, consider whether facility or venue is accessible for all students.

Chesterfield (VA) County Pub. Sch. (OCR 2003) – district violated 504 when scheduled field trips to local theater that was not wheelchair accessible. Compounded mistake when solution to poor access was to carry students to second floor so they could see the performance.

Notice for Field Trips

Failure to provide equal notice about planned field trips can result in illegal exclusion of disabled students and deny equal opportunity to participate.

Mt. Diablo (CA) Unified School District (OCR 2005) – no violation of 504 where district refused to provide interpreter for hearing impaired parent who accompanied child on field trip. 504 requires that a district provide auxiliary aids and services that are necessary to ensure that individuals with disabilities have equal access to communication or participation in programs that are intended to benefit them. Students with disabilities were entitled to auxiliary aids and services for programs the district operated for their benefit. And, parents were entitled to auxiliary aids and services for programs and activities operated for their benefit or the benefit of the public, such as graduation ceremonies, parent-teacher conferences, etc. Since field trips were offered for the benefit of the student and not the parent, the district did not violate the ADA or Section 504 by requiring the parents to provide their own interpreters when they wished to chaperone.

Half Hollow Hills (NY) Sch. Dist. (OCR 2005) – missing 1 out of 5 field trips because nurse not available to accompany student did not deny FAPE to 5th grader with diabetes. Parent unable to accompany student and rejected district offer of medical para.

Williamstown (MA) Pub. Sch. (OCR 2003) – district failed to provide properly trained aides to help CP student participate in field trips and thus violated 504.

Unreasonable accommodation is one that would require fundamental alteration of nature or program – undue financial or administrative burdens.

Nyack (NY) Unified Sch. Dist. (OCR 2004) – district violated 504 when denied her opportunity to participate in trip because of diabetes. Not identified as student with disability even though aware of surgery and diabetes. Principal sent letter to parent before trip saying “Due to [student’s] recent surgery, current instability of her diabetes, and the fact that there will be no medical staff or supplies on hand. . . your child

WILL NOT attend the field trip.” Not allowed on field trip solely

because of those concerns. Student clearly regarded as disabled by district, even though not identified as such.

Surgeon had provided medical clearance for trip and district still requiring parent to accompany.

Troy (MI) Sch. Dist. (OCR 2003) – no violation of 504 when second grader with autism not allowed to participate in trip to museum. Student placed in EMH classroom but participated on limited basis on general education classroom. Trip was intended to supplement social studies curriculum and student did not participate in that curriculum. “Participation in the regular curriculum was an essential requirement” for the trip per OCR.

Sonkowski v. Bd. of Educ. (D. Minn. 2002) – no evidence of disability based discrimination when student with ADHD denied opportunity to attend field trip to professional football team practice facility. Student purportedly planned to make disrespectful comments to one of players he was scheduled to meet.

District expressed legitimate nondiscriminatory reason for exclusion. Aware of his boast that he would make disrespectful comment to Vikings player.

Green Bay Packers fan. Not allowed to wear Packers jersey to class photo session. Parent argued first amendment.

Grading and Class Rank

GRADING

Section 504 regulations generally provide that students with disabilities must be treated same as other students with regard to grading practices.

SPECIAL CONSIDERATIONS

Use of alternate grading systems with disabled students may be appropriate.

Suspect if district discounts special education courses or otherwise depreciates special education course grades on a categorical basis.

Letter to Runkel (OCR 1996).

OCR – permissible for disabled students to be graded differently in situations where placement team has determined the grading methodology on an individual basis and methodology is not result of systematic different treatment on basis of disability.

District should not have a grading policy that applies only to disabled students.

Disabled students who receive special education modifications or accommodations in regular classroom should be graded in accordance with district’s generally applicable grading policies. Schools cannot modify grades on basis of student’s special education status, alone.

Teacher should not reduce grade based only on fact that student received accommodations.

Grading and Attendance

In general, a grading policy that penalizes students for poor attendance is considered neutral when applied to students with disabilities. However, when absences are disability-related, district must make reasonable accommodation to what appears to be neutral policy.

Modified Grading

Modified grades for students in regular education with accommodations permissible in some circumstances. When student receives content

changes in general education curriculum.

When made by IEP team.

WEIGHTED GRADING

OCR- district may use weighted grade system to compile GPA standings to compute class rank, honor roll status, honor society, eligibility, etc. only if that weighted system is based on objective rating criteria. Level of difficulty and student’s level of academic achievement must be taken into account. Otherwise might discriminate against students in the special education curriculum.

Weighted Grading

If regular and special education course differ only in manner in which material is presented, OCR position is that should be considered to have same level of difficulty and grades should not be weighted.

Arbitrary or uniform designation of low weights to special education classes is discriminatory.

Weighted grading may be permissible if each subject/course is analyzed separately and assigned degree of difficulty based on content. Need to document process.

TRANSCRIPTS

Generally, districts should avoid sue of any course designation that appears to be used exclusively in connection with special education programs for students with disabilities.

Labels such as basic, level 1, practical, modified may be acceptable.

Homebound, learning center – suspect.

District should try to select terms that also are used to describe programs it provides for nondisabled students or could be used for such programs.

Notations on transcripts for modifications to regular curriculum are discouraged by OCR. Examples – asterisks or other codes that reflect modification to course content.

OCR suggests that if only use such designations for disabled students, that practice violates 504.

OCR – district cannot modify grades or make special designations on transcripts to indicate that disabled student has participate in regular education with accommodations.

REPORT CARDS

OCR - District must use same type of report card system to advise parents of disabled and nondisabled students about childrens’ progress and to ensure provision of comparable information in this regard.

OCR does permit different progress reports for disabled students when district can demonstrate that the alternative system is at least as effective, including as frequent, as the regular system.

OCR has also stated that it might be a violation to include extra information in the report cards of disabled students if that information is seen as stigmatizing.

HONOR ROLL

In general, district does not discriminate under 504 if it takes position that placement on honor roll is based on objective standards of academic performance.

Use of uniform standards for measuring academic achievement is permitted under Section 504 provided the academic distinctions are on a nondiscriminatory basis.

HONOR ROLL

Use of weighted grades for purposes of honor roll status may be allowed. If honor roll is to award achievement commensurate with ability, then weighted grading would be inconsistent with that stated purpose. If honor roll is intended to honor academic excellence, weighted graded would be permitted.

Fact that some disabled students will not be able to perform at such higher levels does not violate 504. Letter to Ickes (OCR 1988).

As example, students may be required to perform on grade level or meet certain grade requirements.

HONOR ROLL

Exclusion from honor roll on basis of status as disabled, rather than on content of curriculum, is discriminatory. Fordland (MO) R-III Sch. Dist. (OCR 1988).

Even where district has legitimately established honor roll criteria based on objective grading of uniform academic content cannot deny disabled students all opportunities to participate in honors programs.

Fort Smith (AR) Sch. (OCR 1993) – district discriminated by excluding disabled students from eligibility for honor roll where grading system prohibited recognition of academic achievement for disabled students if they received ability/effort grade rather than competitive grades; district did not have alternative honors program acknowledging superior performance by students graded on that basis.

Diplomas

All students, including disabled students, eligible to receive a regular diploma but no guarantees. Letter to Runkel.

No guaranteed right for all disabled students to receive diploma.

Federal law does not require waiver of all diploma requirements.

Under 504, district may use different wording on diploma awarded to disabled student but not in Missouri.

If student, however, meets all graduation standards established by state and LEA, any change in wording on diploma is discriminatory.

Deviations from wording on regular diploma for disabled student must be based on objective criteria and not because student is disabled.

Cannot deny graduation with honors to students just because of disability. If course content is different, may be permissible.

National Honor Society

NATIONAL HONOR SOCIETY

General nondiscrimination provisions apply.

Where membership is based on legitimate, objective criteria applied in a nondiscriminatory manner, students who do not meet eligibility criteria may be rejected.

Systems Upheld - #1

Initial selection for potential membership is by GPA.

Group of students informed of possible eligibility by letter.

Eligible students submit resumes to selection committee and notice provided to relevant teachers requesting that they score listed students in leadership, character and service.

Teachers’ observations destroyed after selection process.

NHS advisor assembles all materials in sealed envelope to be distributed to committee members.

Committee members assign scores based upon NHS guidelines in the 3 areas scored.

Committee members do not meet or discuss their scores.

Scores range from 1-4 (4 as highest). Advisor averages committee member scores. Minimum average score eligible for induction – 3.2.

Advisor does not assign scores.

System #2

Induction based on scholarship, leadership, service and character.

Students must have 3.5 GPA Required to have served in at least 2

elected or appointed leadership positions in school, community or work

Required to be involved in at least two co-curricular activities

Required to have participate in at least two community-related activities and two service projects.

95% attendance required, but may be waived with doctor statement that student could not meet because of illness

All students who meet criteria are admitted.

After admissions process completed, all applications destroyed.

Perry (OH) City Sch. Dist. (OCR 2003) – student failed to prove denied NHS admission because of disability. Attendance requirement waived and student’s attendance not a consideration. Basis for decision – student not sufficiently active participant in Spanish club to meet NHS guidelines.

Letter denying application state that membership required attendance and participation in a variety of time-consuming service activities. Committee questioned student’s participation in Spanish Club even though Spanish Club advisor signed participation form. Established policy allowed NHS advisor to confirm degree of participation which she did and was told that student was not active participant. Student provided doctor excuse re: absences.

Humble (TX) Indep. Sch. Dist. (OCR 2005) – deciding that special education student with 4.0 GPA in “minimum graduation program” not eligible for NHS membership. Policies required 4.0 GPA in level and above-level courses. Because IEP included modified curriculum with courses that did not meet the stated requirements, she did not qualify.

Valley (CO) Sch. Dist. (OCR 2004) – denying parent complaint that daughter denied NHS membership based on retaliation. Student did not meet standards for leadership and character. Did not qualify based solely on scores she received during selection process.

Before and After School Programs

Does 504 Apply?

504 applies to non-educational services. Extended day programs are covered. Question of “otherwise qualified” – does

student meet the essential eligibility requirement for receipt of services.

504 prohibits exclusion of qualified individual with disability, on basis of disability, from programs or activities receiving federal financial assistance.

Covered entity has obligation to make reasonable modifications/accommodations in policies, practices or procedures when those are necessary to avoid discrimination on basis of disability unless public entity can demonstrate that making those would fundamentally alter the nature of the services, program or activity or would constitute an undue burden.

Must refrain from imposing or applying eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program or activity, unless that criteria can be shown to be necessary for provision of service, program, or activity being offered.

Ripon Unified Sch. Dist. (OCR 2006)Violation of 504 where district failed to

consider option of addressing student’s behavior and social needs in before/after school program.

Program is a program of the District.Program is before/after school child

care program.

Program includes educational and enrichment activities to complement school day.

Student – 6 years old. Disability includes inability to learn social norms and cues; substantial impairment of his behavior and social interactions.

Evaluation recommended 1:1 support of behavior therapist in home and school. Program good place to practice skills.

Parent requested support of behavior therapist in program during ESY. District refused because not an educational setting.

OCR – violation of requirement that all evaluation information be carefully considered and district arbitrarily dismissed option of providing therapist.

Consideration should not have been curtailed solely because it was not a traditional classroom or school time.

Lesson – cannot simply dismiss the option, but must consider. IEP team should have considered that option.

District has agreement with program’s non-profit parent company but program under supervision of district.

Fees paid to district although collected by program.

Agreement indicates that individuals working in program are district employees.

District, at one time, did not charge rent for use of facilities. Then charged percentage of fees.

Under agreement, all students of schools in which program located eligible to participate.

No process existed for responding to requests for modification based on disability.

District should have known that modification to program discipline plan necessary for student to have equal opportunity to participate.

No modifications made. Staff merely told student to stop behavior. Behavior continued and student expelled.

District offered no basis to OCR to conclude that reasonable accommodation was not possible or that student posed direct threat to health and safety.

No evidence to support undue burden or fundamental alteration position.

Broward County (FL) Sch. District (OCR 2005) – district did not discriminate against 10 –year-old disabled student when it requested that parent find alternative program for after school placement. Student required supervision at all times and needed help to function independently. Choked other students, pulled, hair, threw tantrums.

OCR – program clearly not equipped to provide what student needed. District provided transportation to alternative program and provided 2:1 supervision.

Operated at elementary school; open to all students in grades K-5 enrolled in regular school day.

Had guidelines for students with special needs.

Purpose of program – after school care. Self-supporting, based on fees collected

from parents. Staff-student ratio is 1:20. Student eligible to participate and was

allowed to enroll in program. Asked parent to find alternate arrangements.

District – could not be included in program with 1:20 ratio. Financial considerations not primary basis for requested withdrawal. Program was operating in the red.

OCR – money was a motivating factor in decision. Hiring of additional aide to care for student did not constitute undue financial burden when all of resources available for program were considered. Also not a fundamental alteration.

But – 504 permits placing student at program at different location so long as same service is provided and location does not disadvantage parents more than experienced by parents of nondisabled students. That occurred here.

Murrieta Valley (CA) Unified Sch. Dist. (OCR 2005) – district that dismissed 7-year-old from childcare program violated ADA and 504. Failed to ensure staff working with student was properly trained. Student’s behavior problems escalated as result of new staff and no training. Student’s termination from program because he fought with other student was discriminatory.

Prince George’s County (MD) Pub. Sch. (OCR 1999) – district’s eligibility criteria for enrollment in before and after care programs, while appearing to be neutral, effective denied certain students equal opportunity to participate on basis of disability.

Policy screened out students placed by district in educational programs outside of neighborhood schools. District’s reasons for criterion, transportation and scheduling conflicts, easily rebutted.

District had not assessed student to determine her ability in violation of 504 and ADA.

Shoreline (WA) Sch. Dist. (OCR 1996) – district’s refusal to allow student with multiple disabilities to participate in special education after school recreational program not discriminatory. Allowed on trial basis and then concluded did not meet eligibility requirements. Did not qualify; unable to meaningfully participate even with accommodations.

Program designed to provide recreational activities to students with disabilities; not intended to be extended day care program.

Not part of IEPs. Eligibility requirements include – ability to

meaningfully participate, as determined by coaching staff, and not have medically determined health condition that would preclude participation.

Roberts v. Kindercare Learning Centers, Inc. (8th Cir. 1996) – requiring a daycare center to provide a full-time personal care aide for 4-year-old child with multiple disabilities was not a reasonable accommodation under the ADA and would place undue burden on facility.

Daycare center refused to admit child unless parents provided the aide. Aide was covered up to 30 hours per week under Medicaid. Parents wanted daycare to provide.

Court – to determine undue burden, consider (1) nature and cost of action; (2) financial resources of site involved, number of persons employed at site, effect on expenses and resources, legitimate safety requirements necessary for safe operation;

or the impact otherwise upon operation of the site; (4) if applicable, overall financial resources of parent company and number of facilities; and (5), if applicable, type of operation of parent corporation.

Historical unpredictability of aide services and difficulty for center to find on-call, part-time help.

Hiring full-time aide would have resulted in dollar loss per week to center, a substantial financial burden when considered in light of operating income.

Center was required to be independently profitable; not rely on resources from Kindercare.

Orr v. Kindercare Learning Centers (E.D. CA 1995) – court granted preliminary injunction that required center to readmit student. The services necessary for 9-year-old student with developmental delays was not a fundamental alteration in the type of services it ordinarily provided; no evidence that student’s presence jeopardized student/teacher ratios. Court did not order aide.

LESSONS LEARNED

Need for policies and procedures. Need for process to look at

reasonable accommodation. Need for written eligibility criteria. Statement of purpose of program and

whether self-supporting. Implementation of policies.

Playgrounds

PLAYGROUNDS

Section 504 states that no qualified individual with a disability shall, because a district’s facilities are inaccessible to or unusable by persons with disabilities, be excluded from participation in, or denied the benefits of services, programs or activities.

ADA and 504

Two standards:Existing facilities – 504 – those for

which construction began before June 3, 1977; ADA – January 25, 1992.

New construction and alterations – those constructed or altered after the above dates.

Existing Facilities

Question is whether the district operates each services, program, or activity so that, when viewed in its entirety, it is readily accessible to and usable by individuals with disabilities.

Existing Facilities

504 does not necessarily require that district make each existing facility or every part of an existing facility accessible if alternative methods are effective in providing overall access to the service, program, or activity.

New or altered facilities

The facility must be designed and constructed in such a manner that it is readily accessible to and usable by individuals with disabilities.

New alterations – require that, to the maximum extent feasible, the facility must be altered in such a manner that the altered portion is readily accessible to and usable by disabled persons.

New Construction

Section 504 – requires facilities constructed or altered after 6-3-77 but before 1-18-91 to comply with American National Standards Institute (ANSI) standards.

Facilities constructed or altered after 1-18-91 must meet Uniform Federal Accessibility Standards (UFAS).

Integration

In addition to accessibility requirements, district generally obligated to conduct each of its programs and activities in most integrated setting appropriate to the needs of qualified individuals with disabilities.

Recreational Activities

District must specifically provide recreational activities in such a manner as necessary to afford disabled students an equal opportunity for participation. Because these services and activities are part of the education program, they must be provided in the most integrated setting appropriate.

Playground = Facility

A playground is a facility under 504 and ADA.

A playground facility includes both the structure or equipment installed to provide play activities, and the surface surrounding such structure or equipment.

Standards

United States Access Board involved in a process of developing a standard for the accessibility of playgrounds to mobility-impaired individuals (as of March 2006).

Those guidelines are not part of the enforceable ADA accessible standards until adopted by the US Dep’t of Justice.

OCR enforcement

Until standards adopted, district’s compliance evaluated by considering, as to each playground facility, under review:Whether the range of activities that is

accessible to children with disabilities is equivalent to that which is offered to children without disabilities.

Is the playground route accessible, firm, stable and slip-resistant?

Is the surface beneath the equipment firm, stable, slip-resistant and resilient?

OCR enforcement

Not every component or element of the playground structure need be accessible.

Where the components provide different types of play structure activities, such as sliding, riding, swinging or climbing, at least one of each type of activity must be accessible to children with disabilities.

OCR enforcement

OCR not currently enforcing as yet unadopted standards.

If district utilizes those standards in its construction, OCR will look to the standards to see if satisfied.

Accessible Routes

OCR looks at:date of construction or alteration.whether there are accessible routes to

enter the playgrounds.whether there are ramps, and if those

firmly connect to the playground.surface cover.

Accessible Routes

Under new construction standard, there must be an accessible route leading to accessible play structure activities that is firm, stable and slip resistant, and accessible surfacing beneath the accessible activities that is firm, stable, slip resistant and resilient.

Accessible Routes

Examples of compliant surfaces:Poured rubberRubber MatsSoft RubberOther pressed fiber and engineered

wood fiber and products

Accessible Routes

Don’t forget that you must maintain those surfaces to have an accessible playground.

March 31, 2006, OCR case in California – fiber on the rubber surface was uneven, making it inaccessible. Not even passage between the rubber mat and fiber. Students sometimes throw fiber as play which contributes to lack of uniformity. Needs to be properly maintained.

District stated that playground equipment was inspected monthly and fiber levels were added to as needed.

Grounds personnel look at fiber every week and rake it smooth as needed.

Site custodian checks daily for glass and other debris.

Play Components

Analyze ground-level v. elevated play components.

Playground standards - If at least 50% of elevated play components are on an accessible route – which must include at least 3 different play types – then additional ground-level components are not required.

Play Components

Standards – at least 50% of elevated play components must be on an accessible route.

Elevated component is one reached from above or below grade and is part of a composite play structure. Under the standards, the accessible route must connect all entry and exist points of accessible play components.

California Case

Not all new construction standards were satisfied. There were 15 elevated activities; at least 5 ground activities that were accessible and integrated were required – not satisfied.

Hazelton (PA) Area Sch. Dist., 17 IDELR 907 (OCR 1991) – district fell short of OCR standards for newly constructed playground. Not readily accessible to children in wheelchairs. Even through district funds were not used to construct the playground, the district participated in the planning, school property abutted the playground, and it was intended for students to use during recess.

Students using wheelchairs were unable to access 80% of the playground because of its stone surface.

District voluntarily agreed to make modifications to bring playground into compliance.

Marshall County (MS) Sch. Dist. – 44 IDELR 140 (OCR 2005) – OCR received complaint about district’s playgrounds. Only playground serving K-4th grade students not accessible. District purchased wheelchair play-formed swing sets. Agreed to install accessible route.

Salem Community Schools, 106 LRP 14646 (SEA Indiana 2002) – Child complaint. 8 year old student in wheelchair. Grant application to purchase wheelchair swing and frame denied. PT testified that playground paved around perimeter. In center are two areas with shredded tires.

Student can’t maneuver wheelchair through ground cover. At IEP meeting, parent stated concerns about inaccessibility.

Corrective action required.

Vocational Programs

Section 504

May not discriminate if subject to 504. Vocational education programs are

not required to produce the identical result or level of achievement for disabled and nondisabled persons, but must afford equal opportunity to achieve the same result in the most integrated setting appropriate.

May not have criteria or methods of admission that have the effect of discriminating on basis of disability.

Vocational education is included in the definition of special education. Therefore, even though not all disabled students must attend a vo-tech school, the LEA must assure that all disabled students have the right to vocational education if specified in the IEP.

IEPs must be implemented by vocational school.

Admissions

Bridgewater-Raynham Pub. Sch. (SEA MA 2006) – student stated claim that she was denied FAPE by district’s failure tot admit her to vocational program, that vocational school may have wrongfully denied admission due to absences that were manifestation of disability and that it had custom of failing to notify disabled students of their application status.

Admissions

Northwest Kansas Area Vo-Tech School (OCR 1989) – vocation school did not deny admission to drug-addicted student because of disability, but because student was not qualified. Criteria for admission included that student be 16 years old, have vocational goal and be capable of benefiting from instructional program. Drug counselor recommended delay vo-tech training until he set his priorities and developed a basis for recovery.

Evaluations

School Dist. of Philadelphia (OCR 1992) – district violated 504 by failing to conduct evaluations of all sped students regarding needs in area of vocational education. No evidence, however, to indicate that special education students were, as matter of policy or practice, denied admission to vocational programs.

Caddo Parish (LA) Pub. Sch. (OCR 1990) – district followed proper evaluation procedures in assessing individual needs of disabled students for vocational education services, but violated 504 by placing those students in vocational programs at segregated campus with demonstrating that they were unable to benefit from regular vocational education, with supplementary aides and services.

Accommodations

Letter to Berger/Lonsdale (OSEP 1995) – decision as to whether disabled student requires assistance of aide in vocational education program is to be made during IEP process and must be based on student’s individual needs.

Accommodations

Pocono Mountain Sch. Dist. (OCR 1991) _ district not required to further modify program in HVAC for student with MR who was unable to master even the most basic skills necessary for HVAC certification even with assistance of special education teacher and OT.

Other Issues

OCR Memorandum (OCR 1990) – even if vocational education institute does not administer all aspects of apprenticeship program, it is responsible to ensure that the program does not discriminate against qualified disabled persons in the selection or treatment of apprentices. Must obtain assurances of nondiscrimination from private organizations contracted and maintain sufficient information to ensure equal opportunity.

Other Issues

Harriman City (TN) Sch. Dist. (OCR 1986) district’s failure to give notice of nondiscrimination policy and grievance procedures and to eliminate barriers to mobility impaired in vocational education program violated 504.

Other Issues

Coffee County (GA) Sch. Dist. (OCR 1985) – district’s placement of high school aged TMH and EMH students in junior high school where no interaction with age appropriate peers and no opportunity to participate in vocational education programs violated 504.

Athletics

504 Regulations

A recipient that offer PE courses or that sponsors or operates interscholastic, club or intramural athletics shall provide to qualified disabled students an equal opportunity for participation.

STATE ATHLETIC ASSOCIATIONS

Pottgen v. MSHAA - upholding association’s age rule for athletic participation. Student over that age is not an otherwise qualified person with a disability. Age rule is an essential eligibility requirement. Waiving it would fundamentally alter nature of program.

Criteria for Participation

Can have guidelines for eligibility and continued participation.

Must apply uniformly. Might need to consider waiver in

certain circumstances. Extracurricular generally not part of

FAPE unless . . .

Shelby County (AL) Sch. Dist. (OCR 2002) – student suspended 3 days from practice which resulted in dismissal from volleyball team. Under district rules, 3 unexcused absences from practices or meetings resulted in ouster. District applied policy uniformly.

Kern (CA) Union High Sch. (OCR 2003) – student initially denied position of water boy for football team because principal expressed concern that he might not be able to move fast enough to avoid being hit on sideline. After IEP meeting, principal consulted with coach who agreed student could be water boy. As result, no 504 violation.

Little Axe (OK) Pub. Sch. (OCR 2002) – no 504 violation where student required to run laps by softball coach to make up for missed practices. Required of all team members who missed practice. Policy was distributed to all team members at start of season. No evidence that disability prevented student from running laps.

Maine Sch. Adm. Dist. (OCR 2002) – no violation of 504 where student dismissed from hockey team. District rules stated student could be removed for remainder of season if missed 3 unexcused practices or 2 unexcused games. Student missed 3 practices for reasons unrelated to disability. District allowed him to continue to play in violation of own rules. Then refused permission to board bus because missed

school during day causing him to miss 2 games. Then dismissed from team. No evidence treated differently from other students on account of disability.

Moses Lake (WA) Sch. Dist. (OCR 2002) – district offered appropriate accommodations for cheerleader try-outs.

Marion County (FL) Sch. Dist. (OCR 2001) – district agreed to furnish student effective accommodations for future cheerleader tryouts including opportunity to videotape instructions and demonstrations.

Garden Grove (CA) Unified Sch. Dist. (OCR 2001) – although basketball coach treated student differently, it was not because of disability. Other members of team who were not regular starts also experienced the difference in treatment. Coach gave different playing time based on level of skill and quality of performance on court. Also, insufficient evidence to support claim that failure to provide suitably fitting uniform was based on disability.

Wells-Ogunquit (ME) Sch. Dist. (OCR 2000) – no 504 violation where district had across-the board policy of not allowing any student to compete on athletic teams if they did not submit completed physical examination form. No competition in track meets if did not practice for 5 days before meet.

implementing 504 in missouri’s schools

Documents

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