kathy's section 504 power point

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AN OVERVIEW OF THE LAW AND REGULATIONS

Section 504 of the Rehabilitation Act of

1973

October 23, 2015

Presented by

KATHY PERRICO

MASSILLON CITY

SCHOOL DISTRICT

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TOPICS TO BE COVERED

• Overview• Child Find• Evaluation

• Is the child disabled?• Does the child need accommodations?

• The Accommodation Plan• Notice of Procedural Safeguards• Discipline• Nonacademic Services, Extracurricular

Activities, and Physical Education

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OVERVIEW

• Section 504 prohibits an entity that receives federal funding, such as a public school district board of education, from discriminating against a person based on that person’s disability.

• If a student is “disabled” as that term is defined in Section 504 and, because of the disability, requires accommodations to have an equal opportunity to participate in and obtain a benefit from the board’s programs, the board and parents must complete an accommodation plan that describes those accommodations.

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OVERVIEW

• Section 504 itself does not require a school board to provide a disabled student with a free appropriate public education (“FAPE”). The U.S. Department of Education’s (“USDOE”) implementing regulations, however, require the provision of FAPE.

• Therefore, Section 504 is commonly interpreted to require a school board to provide “accommodations” to a disabled student, not just “reasonable accommodations,” that are necessary to provide the student with an equal opportunity to participate in and benefit from the educational program.

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CHILD FINDMASSILLON CITY

SCHOOL DISTRICT

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CHILD FIND

• Although Section 504 does not contain any language regarding “child find,” USDOE Section 504 regulations require a school board annually to:

1. Attempt to identify and locate every qualified child with a disability residing in the district who is not receiving a public education, and

2. Take appropriate steps to notify disabled students and their parents of the board’s duty to provide FAPE.

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EVALUATIONMASSILLON CITY

SCHOOL DISTRICT

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EVALUATION OF STUDENTS

• Section 504 does not contain any language concerning the evaluation of students. Nevertheless, USDOE regulations require a school board to:

“conduct an evaluation…of any person who, because of handicap, needs or is believed to need special education or related services before taking any action with respect to the initial placement of the person in regular or special education and any subsequent significant change in placement.”

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• Although its own regulation requires an evaluation only if the student needs or is believed to need special education and related services, USDOE believes an evaluation is required even if the child does not need special education and no one suspects the child to need special education.

• The evaluation team should address: (1) Is the child “disabled” under

Section 504? If so, (2) Does the child need

accommodations?; and (3) What is the child’s educational

placement?

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The evaluation is completed by an evaluation team, which includes the parents and board personnel who are knowledgeable about the student, evaluation data, and options for placement and accommodations.

As discussed below, a child may be disabled under Section 504 but may not need accommodations.

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EVALUATION

IS THE CHILD DISABLED?

MASSILLON CITY

SCHOOL DISTRICT


EVALUATION OF STUDENTSIS THE CHILD DISABLED?

“Disability” includes:

(1)Having a physical or mental impairment that substantially limits one or more major life activities;

(2)Having a record of having a physical or mental impairment that substantially limits one or more major life activities; or

(3)Being regarded as having a physical or mental impairment that substantially limits one or more major life activities.



• Note the difference between Section 504’s definition of “disability” and IDEA’s definition of “child with a disability.”

• IDEA defines “child with a disability” to mean a child who has one or more specified disabilities and, by reason thereof, needs special education and related services.

• In contrast, Section 504 separates the determination of “disability” from the determination of need for accommodations.



• “Substantially limits” is not defined in Section 504 or USDOE’s implementing regulations.

• The U.S. Supreme Court, in several cases involving the Americans with Disabilities Act (“ADA”), defined “substantially limits” in the definition of “disability” to mean “prevents or severely restricts.”



• In 2008, Congress contemplated amending the ADA to define “substantially limits” to mean “materially restricts,” which is a lower standard than “prevents or severely restricts.”

• The ADA Amendment Act, however, did not include a definition of “substantially limits.”

• Congress, however, included several uncodified “Findings and Purposes” statements that the Supreme Court was too restrictive when it defined “substantially limits” to mean “prevents or severely restricts.”




• Thus, “substantially limits” should be read to mean “materially restricts,” not “prevents or severely restricts.”

• With the threshold for “disabled” so lowered, the focus of the evaluation should be on whether the student needs accommodations to have an equal opportunity to participate in and receive benefit from the educational program.




• Section 504 does not define “major life activities,” but USDOE’s Section 504 regulations define the phrase to include:

“Functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”

• This is a non-exhaustive list.




• Note that “major life activities,” and the concept of “disability,” is not limited to the major life activity of “learning.” A student may have no difficulty learning, but may nevertheless be disabled under Section 504 and may need accommodations.




• When Congress amended the ADA effective in 2009, it expanded the definition of “major life activities” to include (new parts of the definition are in bold-type):

“Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”




• The ADA also defines “major life activities” to include:

“the operation of a major bodily function” including without limitation “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.”




• Even though the USDOE has not updated the definition of “major life activities” in its Section 504 regulations, the ADA’s expanded definition of “major life activities” should be used when evaluating whether a student is “disabled” under Section 504.




Episodic impairments or impairments in remission

• Pursuant to the 2009 amendments to the ADA, which should be applied to Section 504, an impairment that is episodic or in remission is still a disability if it substantially limits a major life activity when active.

• In other words, a child may be “disabled” even though the disabling impairment is episodic or in remission.




• Use the rule from the ADA that the determination of whether an impairment substantially limits a major activity (i.e., that the person is disabled) must be made without considering the ameliorative effects of mitigating measures such as medication, medical supplies, equipment or appliances, prosthetics, hearing aids and cochlear implants, mobility devices, or assistive technology.

• It is permissible to consider the ameliorative effects of eyeglasses and contact lenses.

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EVALUATION

DOES THE CHILD NEED

ACCOMMODATIONS?

MASSILLON CITY

SCHOOL DISTRICT



DOES THE CHILD NEED ACCOMMODATIONS?• If the evaluation team determines that

the child is disabled, the team must then decide whether the child needs accommodations to have an equal opportunity to participate in and obtain a benefit from the educational program.

• Whether the child needs accommodations is a separate determination. It does not automatically follow that a “disabled” student needs accommodations.



DOES THE CHILD NEED ACCOMMODATIONS?• The team can and should consider the

ameliorative effects of all mitigating measures (i.e., medication, medical supplies, equipment or appliances, etc.) when determining whether accommodations are necessary.

• In other words, a child who is disabled may not need accommodations (may not need an accommodation plan) if mitigating measures provide the child with an equal opportunity to participate in and benefit from the educational program.



DOES THE CHILD NEED ACCOMMODATIONS?• When the student’s disabling condition is

episodic, whether the team completes an accommodation plan depends on how often the disability is “active” and the likelihood that it will be active during the school year.

• If the team decides not to implement an accommodation plan immediately because the disabling condition is not “active,” the team should consider preparing a contingent accommodation plan that can be implemented promptly if and when the disabling condition becomes “active.”

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THEACCOMMODATION

PLAN

MASSILLON CITY

SCHOOL DISTRICT


THE ACCOMMODATION PLAN

• If the team determines that the student needs accommodations, those accommodations should be described in an accommodation plan.

• Some examples of accommodations are: (1) Extended time to complete assignments and tests; (2) Provision of class notes; (3) Modification of the board’s tardy and

absence policy; (4) Special transportation; (5) Reduction of work to “essential concepts.”



• The accommodation plan should define key terms (i.e., “class notes,” “essential concepts”).

• The plan should quantify when possible (i.e., how much extra time for tests and assignments; when will the student be provided with class notes?).

• The plan should specify who is responsible for each accommodation, including the student’s responsibilities (e.g., “Student shall present his agenda planner to teacher at the end of each class. Teacher shall check the planner to ensure that it correctly notes assignment due dates and the dates of quizzes and tests.”).



• The accommodation plan should describe the student’s placement.

• USDOE regulations state that a disabled student:

(1) Must be educated with regular education students to the maximum extent appropriate given the disabled student’s needs; and (2) Should be placed in the regular education classroom unless the education of the student, with supplementary aids and services, cannot be achieved satisfactorily.

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NOTICE OF PROCEDURAL SAFEGUARDS

MASSILLON CITY

SCHOOL DISTRICT



• Although Section 504 does not contain language about procedural safeguards, USDOE regulations require a board to establish a system of procedural safeguards regarding the identification, evaluation, and placement of students who, because of disability, need or are believed to need special education or related services.

• Just like for evaluation, USDOE believes its regulation applies even to disabled students who do not need, and are not believed to need, special education or related services.


• According to USDOE regulations, procedural safeguards include:

(1) “Notice,” (2) The opportunity for parents to

examine relevant records; (3) An impartial hearing with

participation by legal counsel; and (4) “A review procedure.”



• Best practice is to use prior written notice for decisions regarding evaluation and identification, and for disagreements about placement and accommodations.


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DISCIPLINE OF DISABLED

STUDENTS UNDER SECTION 504

MASSILLON CITY

SCHOOL DISTRICT


• Both Section 504 and the USDOE’s implementing regulations are silent about disciplining students who are “disabled” under Section 504. As such, neither the law nor the regulations mention the concept of a manifestation determination review (“MDR”).

DISCIPLINE


• The USDOE Office for Civil Rights (“OCR”), however, interprets the requirement in its regulations that a school board complete an “evaluation” before making a “significant change of placement” to mean that the board must complete an MDR before it implements a “significant change of placement” for disciplinary reasons.

• In other words, OCR interprets the term “evaluation” in the Section 504 regulations to include an MDR.

DISCIPLINE


• OCR interprets “significant change of placement” in its Section 504 evaluation regulation to mean the same thing as “change of placement” in IDEA: a “significant change of placement” is a change of placement of more than 10 consecutive days (i.e., an expulsion) or a change of placement of more than 10 non-consecutive days where the series of short-term removals is a “pattern of removal.”

DISCIPLINE


• In other words, when disciplining a student who is “disabled” under Section 504, apply IDEA requirements pertaining to:

(1) Pattern of removal; and(2) Manifestation determination

review.

DISCIPLINE


DISCIPLINEPATTERN OF REMOVAL

• Complete an MDR if the most recent discipline is part of a pattern of removal (and is, therefore, a change of placement).

• The building administrator, not the team, decides whether there is a “pattern of removal.”



Factors to consider when deciding whether a series of removals is a “pattern of removal”:

1. The total number of days the student has been removed;2. Whether the student’s behavior is “substantially similar” in some or all of the incidents;3. The length of each removal;4. The proximity in time of each removal.



The administrator’s determination whether a series of removals is a “pattern of removal” is subject to due process review (at least under IDEA), so you should inform the parent of the determination using a PR-01 with notice of procedural safeguards.


DISCIPLINEMANIFESTATION DETERMINATION

REVIEW• An MDR must be completed if the

disciplinary removal is a “change in placement” (IDEA) or a “significant change of placement” (Section 504).

• The MDR is completed by the MDR team, which is a school administrator, the parent, and relevant members of the IEP team.

• The entire IEP team need not be involved in the MDR.



REVIEW

• The MDR team must review “all relevant information in the child’s file, including the child’s IEP, any teacher observations, and any relevant information provided by the parents.”



REVIEW

The MDR team must find that the misconduct was a manifestation of the child’s disability if it answers “yes” to any of these questions:

1. Was the misconduct “caused by” the child’s disability?2. Did the misconduct have a “direct and substantial relationship” to the child’s disability?3. Was the misconduct a “direct result” of the school’s failure to implement the IEP?


Under Section 504, the trigger for completing the “evaluation,” i.e., the MDR, before making a significant change of placement for disciplinary reasons is that the student is disabled, not that the student has an accommodation plan.

In other words, if the 504 team decided that a student was disabled but did not need accommodations, an MDR must still be completed before making a significant change of placement for disciplinary reasons.

DISCIPLINE


• If the student’s misconduct was a manifestation of the child’s disability, the expulsion cannot occur. To do so would be deemed disability discrimination.

• Under IDEA, the IEP team must complete a Functional Behavioral Assessment and implement a Behavior Intervention Plan to address the misconduct.

• Unlike IDEA, there is no provision in Section 504 or its regulations for a 45 school-day interim alternative educational setting for weapons or drug offenses, or for causing serious bodily injury.

DISCIPLINE


• Another difference between Section 504 and IDEA is when the MDR must be completed.

• Under IDEA, the MDR must be completed within 10 school days of the decision to change placement, i.e., within 10 schools of the decision to expel the child.

• Under Section 504 regulations, as interpreted by OCR, the MDR must be completed before the significant change of placement, i.e., before the expulsion hearing.

DISCIPLINE


OCR believes that its Section 504 regulations control over IDEA (and USDOE’s regulations that implement IDEA) on the issue of when the MDR for a student with an IEP must occur.

OCR believes that the MDR for a special education student must be completed before the expulsion hearing, even though Congress (in IDEA) and the USDOE (in its regulations implementing IDEA) provide that the MDR must occur within 10 school days of the decision to change the child’s placement.

DISCIPLINE


DISCIPLINEINTERIM ALTERNATIVE EDUCATIONAL

SETTING

Under IDEA, but not Section 504, the superintendent can, in certain limited circumstances, order a disabled child into an interim alternative educational setting (“IAES”) for up to 45 school days even if the misconduct was a manifestation of the child’s disability.



SETTING

Under IDEA, the superintendent may order an IAES if the child:1. Carried or possessed a “weapon” at school, on school premises, or at a school function;2. Knowingly possessed, used, sold, or solicited the sale of a controlled substance (not alcohol) at school, on school premises, or at a school function; or3. Inflicted “serious bodily injury” on another person at school, on school premises, or at a school function.



SETTING

“Weapon” in this context means a “dangerous weapon,” which means a “weapon, device, instrument, material, or substance, animate or inanimate, that is used for, or is readily capable of, causing death or serious bodily injury, except that it does not include a pocket knife with a blade of less than 2 ½ inches in length.”



SETTING

“Serious bodily injury” means a bodily injury that involves:

1. A substantial risk of death;2. Extreme physical pain;3. Protracted and obvious disfigurement; or4. Protracted loss or impairment of the function of a bodily member, organ, or mental facility.



SETTING

The superintendent may order a 45 school day IAES, but the IEP team must meet to determine what and where that setting is, and how services will be delivered.


If the student’s misconduct was not a manifestation of the student’s disability, the expulsion can be imposed.

Under IDEA, educational services must be provided starting on day 11 of the disciplinary removal.

DISCIPLINE


DISCIPLINE(IDEA ONLY)

Whether during an expulsion or a 45 school day IAES, the services provided must allow the child to make progress on his or her IEP goals and objectives and in the general curriculum.

Thus, under IDEA an “expulsion” is better thought of as a change in placement without parental consent.


DISCIPLINE

In contrast to IDEA, there is no provision in Section 504 or its regulations that educational services must be provided during an expulsion, i.e., starting on day 11 of a disciplinary removal. A Section 504 student who is expelled need not receive any educational services (unless non-disabled students receive services during expulsions).



Under IDEA, but not Section 504, there are certain circumstances where a child who has not been identified as a child with a disability is, nevertheless, entitled to the discipline “protections” of IDEA.

Under IDEA, a child not yet identified as a child with a disability is entitled to discipline “protections” if the school district “had knowledge…that the child was a child with a disability” before the child’s misconduct occurred.



A school district is deemed to have “had knowledge” if, before the misconduct, the child’s:1. Parent expressed concerns in writing to supervisory or administrative personnel, or a teacher of the child, that the child is in need of special education or related services; or2. Parent requested a multi-factored evaluation; or3. Teacher or district personnel have expressed specific concerns about the child’s pattern of behavior directly to the special education director or other supervisory

personnel.



The school district will not be deemed to have “had knowledge” if:1. The child’s parent:

a. Has not allowed a multi-factored evaluation; or

b. Has refused special education and related services; or2. The child has been evaluated and determined not to be a child with a disability.



Some examples of the “protections” to which a child not yet identified is entitled:

1. Educational services starting on day 11 of the removal;2. Completion of an MDR (if the child is ultimately identified);3. Due process hearing (arguably limited to child find).



If the parent requests an MFE or special education after the misconduct, the child can be disciplined like a regular education student, but the district must complete an MFE in an expedited manner (unless the district gives prior written notice that it refuses to complete an MFE).

The child remains expelled while the expedited MFE is completed. No educational services need be provided.

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NONACADEMIC SERVICES,

EXTRACURRICULAR ACTIVITIES, AND

PHYSICAL EDUCATION

MASSILLON CITY

SCHOOL DISTRICT


• USDOE regulations define “nonacademic and extracurricular services and activities” to include “counseling services, physical recreational athletics, transportation, health services, recreational activities, special interest groups or clubs sponsored by the [school district], referrals to agencies which provide assistance to handicapped persons, and employment of students, including both employment by the [board] and assistance in making available outside employment.”


• USDOE regulations state that “in providing or arranging for the provision of nonacademic and extracurricular services and activities, including meals, recess periods, and [other services such as athletics and special interest groups and clubs], a [board] shall ensure that [disabled] persons participate in such activities and services to the maximum extent appropriate to the needs of the [disabled] person in question.”


A board of education must “provide nonacademic and extracurricular services and activities in such a manner as is necessary to afford [disabled] students an equal opportunity for participation in such services and activities.”“In providing physical education courses and athletics and similar aid, benefits, or services to any of its students, a [board] may not discriminate on the basis of [disability]. A [board] that offers physical education courses or that operates or sponsors interscholastic, club, or intramural athletics shall provide to qualified [disabled] students an equal opportunity for participation.”


OCR’S JANUARY 25, 2013 “DEAR COLLEAGUE LETTER” ON EXTRACURRICULAR ATHLETICS

HTTP://WWW2.ED.GOV/ABOUT/OFFICES/LIST/OCR/LETTERS/COLLEAGUE-

201301-504.HTML

• A board must make reasonable modifications and provide those aids and services that are necessary to ensure an equal opportunity to participate in extracurricular athletics.


OCR’S JANUARY 25, 2013 “DEAR COLLEAGUE LETTER” ON

EXTRACURRICULAR ATHLETICS

• “Equal opportunity to participate” does not mean:

(1)Making a fundamental alteration to the program or nature of the activity;

(2)Giving a student with a disability an unfair advantage;

(3)Reducing or changing a required level of skill or ability for participation; or

(4)Compromising student safety.


• USDOE regulations state that “a [board] may offer to [disabled] students physical education and athletic activities that are separate or different from those offered to [nondisabled] students only [when participation with the use of supplementary aids and services in the regular environment cannot be achieved satisfactorily] and only if no qualified [disabled] student is denied the opportunity to compete for teams or to participate in courses that are not separate or different.”


OCR’S JANUARY 25, 2013 “DEAR COLLEAGUE LETTER” ON

EXTRACURRICULAR ATHLETICS• A board “should” (i.e., is encouraged but

not required to) create additional, i.e., separate or different, extracurricular athletic opportunities for disabled students who cannot participate in existing programs even with reasonable modifications or aids and services.

• If a board creates additional extracurricular athletic opportunities, it must support those opportunities equally with its existing programs.


• The accommodation plan should distinguish between accommodations needed to provide the student with FAPE from accommodations required to provide the student with an equal opportunity to participate in nonacademic and extracurricular activities.

• If accommodations are needed for participation in nonacademic and extracurricular activities, but such participation is not required to provide the student with FAPE, the accommodation plan should explicitly state this.

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QUESTIONS?MASSILLON

CITYSCHOOL DISTRICT