section 504: legal overview and update presented by: rodney c. lewis attorney-at-law lanier, ford...

SECTION 504: LEGAL OVERVIEW and UPDATE

presented by:Rodney C. LewisAttorney-at-LawLanier, Ford P.C.

Huntsville, [email protected]

1

2

I. SECTION 504: THE BASICS

Two Federal Statutes Address the Legal Responsibilities of Public Schools to Disabled Students

• 1. Individuals with Disabilities Education Act (IDEA)

• 2. Section 504 of the Rehabilitation Act of 1973

3

Section 504 of the Rehabilitation Act of 1973

• The Rehabilitation Act of 1973 is a broad federal civil rights law that prohibits discrimination against disabled individuals.

• Section 504 is that portion of the Rehabilitation Act of 1973 that bars discrimination against the disabled in all programs, agencies, etc., receiving federal funding, including public schools.

4

What Does Section 504 of the Rehabilitation Act Actually Say?

“No otherwise qualified handicapped individual… shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. . .”

29 U.S.C. 794 (1973)

5

Two Components of Section 504

Section 504

Non-Discrimination FAPE

6

Section 504’s “FAPE” and “Non-discrimination” Components

School compliance with Section 504 includes:

• 1. the provision of FAPE through a student’s Section 504 plan, and

• 2. the provision of equality of access to, and equality of opportunity for disabled students to participate in activities operated by or in collaboration with the the school that are not necessarily required for FAPE.

7

8

Section 504’s “Non-discrimination” Component

(34 C.F.R. 104.37)• Prohibition upon excluding a disabled student from

participation in or benefiting from non-FAPE programs or services provided by schools to non-disabled students due to a student’s disability. (examples: extra-curricular activities, athletics, after-school programs, etc.).

• Public schools must provide “reasonable accommodations” so as to allow participation and benefit by a disabled student.

• BUT, a 504 student must still be “otherwise qualified” and schools are not required to alter the “fundamental nature” of its non-FAPE programs and services.

Section 504’s “FAPE” Component

• For some disabled students non-discrimination, i.e. equal treatment and equal services, will not be sufficient to provide an equal opportunity to benefit and participate educationally.

• Some disabled students will need individualized and extra services and/or accommodations to receive an equal opportunity to benefit and participate educationally.

• These needed services and/or accommodations are documented in a student’s individualized “Section 504 plan”.

9

10

II. SECTION 504: ELIGIBILITY

Section 504’s Three Prong Eligibility Standard

1. A physical or mental impairment that

2. substantially limits a

3. major life activity.

11

12

A. What is a “Physical or Mental Impairment” Under 504?

• Since the entire focus of Section 504 is nondiscrimination arising from a disability, the presence of some impairment is necessary.

• Almost any medical or psychological disorder will suffice.

34 C.F.R.§104.3(j)(2)(i).

13

B. What Constitutes a “Major Life Activity” Under Section 504?

• Section 504 does not provide an exhaustive list.

• “Learning” is not the sole major life activity that may qualify a student for services.

• Activities such as walking, seeing, hearing, speaking, breathing, learning, concentrating, thinking, reading, communicating, and working.

34 CFR 104.3(j)(2)(ii).

C. What is the standard for determining the existence of a “substantial limitation”.

• An impairment is a disability if it substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.

• In a public school setting, compare student at issue to the average student. T.J.W. v Dothan City Bd. Of Educ., 26 IDELR 999 (M.D. Ala. 1997).

14

III. ADAAA

15

Section 504 Eligibility Determinations After the ADAAA

• Americans with Disabilities Act Amendments Act (effective 2009) deemed by Congress to be applicable to Section 504.

• USDOE has also deemed ADAAA applicable to a public school’s obligations under Section 504.

16

ADAAA

• Expanded list of major life activities.

• Rejection of “significant restriction” standard for determining presence of a “substantial limitation”.

• Provided mitigating measures eligibility rule.

• Provided episodic conditions eligibility rule.

17

1. Expanded list of “major life activities”.

Activities such as thinking, reading, concentrating specifically added to list.

18

2. Revised standard for determining the presence of a “substantial limitation”.

ADAAA provides a broader and less demanding standard for determining the presence of a “substantial limitation”

19

3. Mitigating Measures Rule

Schools cannot considering the positive effects of “mitigating measures” in making Section 504 eligibility decisions.

20

Examples included in ADAAA

• Provided examples included in the ADAAA are: medication; medical supplies, equipment or appliances; low-vision devices (which do not include ordinary eyeglasses or contact lenses); prosthetics (including limbs and devices); hearing aids and cochlear implants or other implantable hearing devices; mobility devices; oxygen therapy equipment and supplies; use of assistive technology; reasonable accommodations or auxiliary aids or services; and learned behavioral or adaptive neurological modifications.

• Ordinary eyeglasses and or contact lenses excluded.

21

4. Episodic Conditions Rule

Schools must now consider impairments that are in remission or episodic as if fully symptomatic when making eligibility decision. (cancer, allergies, migraines, etc.).

22

Impact of ADAAA is the creation of the “technically eligible student”.

• A student who despite meeting Section 504 eligibility criteria, does not need individualized services or accommodations from the school.

• Typically students who qualify for eligibility based upon an impairment in remission/episodic or students who due to mitigating measures are successful and benefitting from the school’s programs and activities.

23

Technically Eligible Students

• Technically eligible students are entitled to all procedural protections of Section 504.

• Technically eligible students are not entitled to a Section 504 plan.

24

IV. COMMON 504 ELIGIBILITY & EVALUATION QUESTIONS

25

Can a 504 eligibility determination be made solely upon a medical or psychological report?

• School must still determine if impairment “substantially

limits” “a major life activity”.

• Eligibility must be based upon information from a variety of sources. 34 C.F.R. 104.35

• Elum-Roslyn (WA) Sch. Dist., 41 IDELR 271 (OCR 2004).

26

27

What about temporary disabilities?

• Must be considered on a case by case basis considering the duration and degree of disability.

• Impairments that are transitory (expected duration of less than six months) and minor will not be sufficient to trigger duty to evaluate or to support a finding of Section 504 eligibility.

• See, FAQs about Section 504, Question 34 (OCR 2009).

28

Remember:

• Students must always be evaluated out of

Section 504 when disability is no longer present.


29

Should a Section 504 Plan be provided to a pregnant student?

• Pregnancy is generally not a qualifying disability under Section 504 unless substantial medical complications arise. Lacoparra v. Pergament Home Centers, Inc., 11 NDLR 48 (S.D. N.Y. 1997).

• Remember: Title IX and other federal laws provide near identical protections as Section 504 to a pregnant student.

What about Section 504 eligible transfer students?

• Receiving school must implement current Section 504 plan to the extent practical, until the receiving school’s team can meet to determine appropriateness. (If not appropriate, team would pursue evaluations and revisions to plan.)

OCR FAQ 2009 & Flagler Co. Sch. Dist., 34 IDELR 182 (OCR 2000).

30

What if a parent disagrees with team’s finding of non-eligibility?

• Provide parent with notice as to team’s decision and reasons for eligibility denial.

• Provide parent with Section 504 procedural due process rights.

• It is then up to the parent to pursue a challenge to the team’s decision of non-eligibility. (OCR complaint or request for local due process grievance/hearing).

31

What if a parent refuses consent for evaluation or placement?

• Schools may but are not required to pursue a due process hearing to seek override of a parent’s refusal.


32

How should a school determine eligibility for mitigated or episodic conditions?

• Examples: ADHD controlled by medication, cancer in remission, immune deficiencies that ebb and flow, diabetes controlled by insulin, etc.

• Utilize older educational records, medical records, and teacher/parent input.

33

Is every 504 eligible student entitled to a Section 504 plan?

No…

• Some student who qualify for initial eligibility based upon the team not considering mitigating measures or the severity of episodic conditions may have no current need for FAPE accommodations via a 504 plan.

• Team can considered such factors in determining whether the student is in need of FAPE accommodations via a 504 plan.

• Such a student would still be protected from discrimination.

34

35

V. SECTION 504 PLANS

• Under the 504 regulations, a school district is required to provide FAPE to each qualified handicapped student when such services are required to meet the student’s educational needs as adequately as the educational needs of nondisabled students are met.

34 CFR 104.33(a).

Section 504 Plans

36

Section 504 Plans

• The 504 regulations define FAPE as the provision of services that:

• are designed to meet the individual needs of handicapped students as adequately as the needs of nonhandicapped students are met; and

• are based upon adherence to procedures that satisfy the requirements of 504.

34 CFR 104.33(b)(1).

37

38

• Services necessary for FAPE are commonly documented in a “504 Plan”.

Section 504 Plans

39

Section 504 Plan

• Unlike IDEA, a Section 504 plan does not have requirements such as goals or objectives, a transition plan, present educational level, access to general curriculum rationale, progress reports, or transfer of rights provision.

Mark H. v. LeMahieu, 513 F.3d 922 (9th Cir. 2008).

40

Section 504 Plan

• Goal of plan is to provide services sufficient to provide equal opportunity to participate and benefit and not equal outcome.

Section 504 Plan

• Section 504 does not require a public school to provide a potential-maximizing educational program.

J.D. Pawlet Sch. Dist., 224 F.3d 60 (2nd Cir. 2000).

41

Section 504 Plan

• Evaluation data allows the Section 504 team to distinguish between “parentally-desired” versus “504 required” accommodations.

• Legal duty to provide an accommodation solely arises from the evaluation data and not parent demand.

Murfreesboro (TN) School Dist., 34 IDELR 299 (OCR 2000).

42

VI. DISCIPLINE

43

44

• Short Term Removals: (10 days or less)

- No “change of placement”

• Long Term Removals: (More than 10 days)

- “Change of placement”

Disciplinary Rules Divide Removals into Two Separate Sets of Rules or Limitations

45

Do schools have to count days of ISS as removal days?

• ISS will not count towards the 10 day total as long as the student continues:– to have an opportunity to progress in the general

curriculum;– to receive Section 504 services; and– to continue to participate with non-disabled peers, – and remains on his or her campus.

Dunkin (MO) Sch. Dist., 52 IDELR 138 (OCR 2009).

46

A. SHORT TERM REMOVALS

47

Basic Short Term Removal Rule(10 Day FAPE Free Zone)

• School personnel may remove a disabled student without services for not more than 10 school days each school year for the violation of a disciplinary rule (to the extent such removals are applied to students without disabilities).


• The school system is not required to provide educational services for the first 10 school days in a school year that a student is removed, if services not provided to students without disabilities.

48

49

• Short term removals appropriate even if related to student’s disability.

• No requirement for a manifestation determination review or any other procedural safeguard.


50

B. LONG TERM REMOVALS

51

Long Term Removals

• Long term removals (greater than 10 days) trigger the more elaborate procedural protections such as the requirement for a manifestation determination hearing.

Section 504 Alcohol/Drug Exception

• Section 504 students lose the right to a manifestation determination and due process hearing if they violate drug or alcohol rules and are determined to be “current users”.

• Mere possession of drugs or alcohol would not fall under this exception.

17 EHLR 609 (OCR 1991).

52

C. MANIFESTATION DETERMINATION

53

• A manifestation determination conference is procedurally required if a proposed disciplinary sanction constitutes a long-term removal/change of placement.

5454

Why is M.D. outcome so important?

• If the misconduct is deemed a manifestation of the student’s disability, the school must return the student to his regular placement unless the parent and school decide on a different placement.

5555

Why is M.D. outcome so important?

• If the misconduct is not found to be a manifestation of the student’s disability, a school may apply its regular discipline rules in the same manner it would do so for a nondisabled student.

5656

Two Questions for M.D. Team

1. Did the conduct bear a direct and substantial relationship to the student’s disability?

2. Was the conduct the direct result of the LEA’s failure to implement the student’s IEP?

57

Question One

How should Team determine whether the conduct bore a direct and substantial relationship to the student’s disability?

5858

59

“The revised manifestation provisions in section 615 of the Act provide a simplified, common sense manifestation determination process that could be used by school personnel….The Conferees further intended that “if a change in placement is proposed, the manifestation determination will analyze the child’s behavior as demonstrated across settings and across time when determining whether the conduct in question is a direct and substantial result of the disability.”

34 C.F.R. § 300.530(e).

The commentary to the final IDEA regulations states:

59

Question Two

How does team properly determine whether conduct was due to District’s failure to implement plan?

6060

61

• Failure to implement must be related to the conduct at issue.

• The appropriateness of the student’s current plan is not an issue in a manifestation determination.

61

62

VII. SECTION 504: CIVIL LITIGATION AND CLAIMS FOR MONEY DAMAGES

When May a Parent Pursue a Claim for Money Damages?

• Parent must be able to prove more than a mere violation of Section 504, IDEA, or the A.D.A.

• Conduct must arise to the level of intentional discrimination, bad faith, gross misjudgment, or deliberate indifference.

63

64

VIII. SECTION 504: Case Law Update

65

CTL v. Ashland Sch. Dist., (7th Cir. 2014)

• School district failed to completely implement diabetic student’s 504 plan.

• Plan provided that 3 staff members would be trained to monitor diabetes equipment. However, only the school nurse had been trained.

• Additional issue involved school nurse’s refusal to alter dosage protocol by physician as requested by parent.

• Court held that although 504 plan was not implemented “perfectly”, no denial of FAPE occurred.

• School nurse was correct in following dosage protocol.

66

A. v. Hartford Bd. Of Ed., (D. Conn. 2013)

• School district continually failed to implement an IDEA Hearing Officer’s Order ignoring complaints of Parent.

• Court held that Parent may utilize Section 504 and the ADA to bring suit for money damages against school district.

67

M.H. v. Mount Vernon City Scho. Dist., (S.D.N.Y. 2014)

• School district failed to implement state auditing report of school’s IDEA services for past five years.

• Court found that school’s actions where in bad faith.

• Court held that Parent may utilize Section 504 and the ADA to bring suit for money damages against school district.

68

D.L. v. Baltimore City Bd of Ed., (4th Cir. 2013)

• School district did not provide Section 504 services to parentally placed private school students.

• Court held that Section 504 imposes no obligation upon a school district to provide such private school services when appropriate services are available within the public school.

69

Moody v. New York City BOE (2nd Cir. 2013)

• Parent claimed discrimination when school failed to provide diabetic student with a “heated” lunch.

• Court dismissed claim holding that school had appropriately accommodated the student’s needs even without heating the student’s lunch by its providing of dietary appropriate lunch options and services.

70

G.B.L. v. Bellevue Sch. Dist. (D. Wash. 2013)

• Parent of student with ADHD and a hearing impairment sued school for allegedly not providing reasonable accommodations to her child in the school’s gifted program.

• Parent wanted her child to have less homework than the required 2 hours per night required by the gifted program.

• School refused as the homework assignment was a required part of the program.

• Court agreed with school deeming the parent’s request as constituting a fundamental alteration of the gifted program.

71

Horton v Boone County Sch. Dist., (E.D. Ky. 2013)

• Disabled student excluded from graduation ceremony due to failing grade and lack of credits to graduate.

• Parent filed claim in federal court alleging discrimination under Section 504.

• Court dismissed claim because parent had not first exhausted the administrative remedies available by the school district.

72

T.M. v District of Columbia, (D.D.C. 2013)

• Parent of a student eligible under IDEA sued school district under Section 504 for money damages for failing to proved the student with a one-to-one aide and failing to implement the student's IEP.

• Court dismissed suit on basis that allegations at best only constituted a failure to provide FAPE.

• The allegations were not sufficient to rise to the level of bad faith or gross misjudgment necessary for a viable Section 504 claim for money damages.

73

M.J. v. Marion Indep. Sch. Dist., (W.D. Tex 2013)

• Parent filed federal lawsuit under Section 504 claiming that her disabled child had been subjected to bullying and harassment while at school.

• Evidence offered by parent established multiple and ongoing failure by school district employees to address such bullying and harassment.

• Court allowed the parent’s claim to be submitted to a jury.

G.B.L. v. Bellevue Sch. Dist., 60 IDELR 186 (W.D.WA. 2013)

• Parents of disabled student (ADHD) sued school district for refusing to significantly reduce the amount of homework required in a gifted/honors class in which the student was enrolled.

• School did provide some other disability based accommodations to the student to include extended time for assignments.

• School’s position was that extensive homework was an essential component of the gifted/honors class necessary to keep up with class discussions and class curriculum.

74

G.B.L. v. Bellevue Sch. Dist., 60 IDELR 186 (W.D.WA . 2013)

• Court ruled in favor of school.

• Court found that by providing the accommodations that it did the school had provided reasonable accommodations to the student.

• Court agreed with school’s position that reducing homework by 50% would result in a fundamental alteration to the nature of the program.

75

G.B.L. v. Bellevue Sch. Dist., 60 IDELR 186 (W.D.WA. 2013)

• But, remember that the courts and OCR differ as to the degree or extent of accommodations that must be provided under Section 504 to disabled students enrolled in a gifted/advanced class. 50 IDELR 230 (OCR 2008) & 111 LRP 64861 (OCR 2011)

• OCR is generally of the opinion that accommodations normally provided in general education classes must also be provided in gifted/advanced classes.

• Compelling evidence must be presented that accommodations would fundamentally alter the gifted/advanced class to the point that it would not be an advanced curriculum class as designed.76

Westside (CA) Union Sch. Dist., 61 IDELR 55 (W.D.Cal. 2013)

• School excluded disabled siblings from non-mandatory after-school program due to disruptive behavior.

• Parent initially filed an OCR complaint and OCR found in favor of the parent.

• OCR faulted school for failing to consider reasonable accommodations that may have enabled the students to successfully participate in the program.

77

Westside (CA) Union Sch. Dist., 61 IDELR 55 (W.D.Cal. 2013)

• But, note that OCR did not say that disabled students could not be excluded from after-school programs.

• Instead, OCR’s position as stated is that a school must first exhaust reasonable accommodations prior to excluding a student from participating in non-FAPE programs.

• Ensure that any informational packet, website, or advertisements for after-school day care and similar programs state that students with disabilities will be provided an equal opportunity to participate and specifies a manner that a parent can request reasonable accommodations.

78

Hamilton Co. (FL) Sch. Dist., 59 IDELR 111 (OCR 2013)

• School denied Section 504 eligibility to 6th grade student diagnosed with autism, ADHD, and anxiety.

• Evaluation data collected by Section 504 team included parent obtained psychological report indicating that the student had received medication for behavior. Remaining data reviewed by the team established that the student had high achievement and a lack of behavioral problem.

• Team’s eligibility determination paperwork only provided that the student did not have a substantial limitation in the major life activities of learning or behavior.

79


• Parent filed an OCR complaint challenging the eligibility decision.

• OCR held that pursuant to the 504 team’s paperwork it was not clear if the team had subtracted any potential beneficial impact of medication or considered major life activities other than learning or behavior.

• OCR ordered the school to conduct another eligibility determination documenting its correct analysis in regard to mitigating measures and the expanded range of major life activities. 80


• This ruling highlights the importance of the Section 504 team, in making eligibility determinations, to document that the team understood and complied with the revised ADAAA eligibility standards.

81

Lauren G. v. West Chester Sch. Dist., 60 IDELR 4 (E.D.Pa. 2013)

• 10th grade student began to have attendance problems and was subsequently admitted to a psychiatric hospital for suicidal ideation, possible bipolar disorder, and depression.

• Parent made school counselor aware of hospital admittance and diagnosis.

• Parent made a Section 504 referral when student returned to school.

82


• Section 504 team denied eligibility.• Team only reviewed school academic and behavior

records as well as obtained teacher input.• Team did not review or consider the psychiatric hospital

records that referenced the student’s school attendance problems and frequent visits to the school counselor.

• Parent had also made school counselor aware of recent hospital admittance and diagnosis.

• Student’s problems worsened. By 11th grade, student refused to attend school, was failing her classes, and became clinically depressed. Parent placed student in residential placement. 83


• Parent filed lawsuit seeking residential placement reimbursement from school.

• Court ruled for Parent holding that the school had inappropriately concluded earlier that the Student was not Section 504 eligible by using only limited information and by not seeking additional information regarding the prior psychiatric placement of which the school had knowledge.

84

Greenville (TX) Indep. Sch. Dist., 113 LRP 27897 (OCR 2013)

• Section 504 student (ADHD and ODD) was placed in alternative school following his use of profanity and assault upon another student.

• School failed to conduct a manifestation determination review prior to placing the student in the alternative disciplinary setting.

• OCR required the school to allow the student to return to a school in the district of his choice, provide district wide training, and to provide compensatory educational services to the student. 85

Logan County (WV) Schools, 55 IDELR 297 (OCR 2012)

• School’s general homebound policy denied homebound students the right to participate in any extra-curricular activities.

• No exception was made for disabled students placed on homebound as a result of his or her disability.

• Section 504 homebound student receiving homebound services due to a hereditary metabolic disorder was denied the right to return to school to attend a senior class party.

86

Logan County (WV) Schools, 55 IDELR 297 (OCR 2012)

• OCR found that school’s homebound policy categorically denying disabled students on homebound due to their disability the right to participate in any extra-curricular activities was in violation of Section 504.

• OCR held that school must make an individualized analysis of each student’s particular disability and the extra-curricular activity at issue.

87

Traverse City (MI) Public Schools, 59 IDELR 144 (OCR 2012)

• School’s general homebound policy provided a 15 day delay between medical verification of homebound status and the commencement of services.

• Student with episodic seasonal allergies filed a complaint when he had to wait 15 days for homebound services to start each time he went on homebound status due to his allergies.

• OCR ruled for student and required that school alter its policy in regard to student’s with episodic or foreseeable medical absences through out the school year. 88

D.L. v Baltimore City Board of Sch. Commissioners, 60 IDELR 121 (4th Cir. 2013).

• Parent of private school enrolled student sued local public school district that declined to provide Section 504 services to her child at his private school.

• Court dismissed complaint holding that a public school is not responsible under Section 504 for providing services to students not enrolled within the public school system.

• Court did reemphasize public school’s affirmative obligation for child-find

89

D.L. v Baltimore City Board of Sch. Commissioners, 60 IDELR 121 (4th Cir. 2013).

• Court did reemphasize public school’s affirmative obligation for “child-find”.

• Public schools child-find obligations extend to all potentially eligible students residing within their boundaries even in enrolled in private schools.

• Obligation is met by public school providing notice that parents can refer their child for Section 504 evaluation even if not enrolled in the public school system but that no services would be provided unless their child so enrolls. 90

SECTION 504: LEGAL OVERVIEW and UPDATE

presented by:Rodney C. LewisAttorney-at-LawLanier, Ford P.C.

Huntsville, [email protected]

91

section 504: legal overview and update presented by: rodney c. lewis attorney-at-law lanier, ford...

Documents