504 elm creek

transcript

The 411 on 504

Karen HaaseHarding & Shultz

(402) 434-3000khaase@hslegalfirm.com

H & S School Law

@KarenHaase

The Plan for Today

504 Overview Eligibility Step-by-Step Drafting Plans Referral Process Procedural Safeguards Discipline

504 Overview

Similarities School districts must evaluate and

determine eligibility Both require

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

Primary Differences Definition of disability is unique to

each statute No funding under 504 504 encompasses

• Students • Employees • Patrons

When is school required to make a 504 referral?

When district believes that the student has a physical or mental impairment that substantially limits one or more major life activities AND

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

Changes to ADA

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

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

Major Changes First, the definition of “major life activity”

has expandedNow include but are not limited to:Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Major Changes First, the definition of “major life activity”

has expandedNow include but are not limited to:Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

Major Changes Second, interpretation of “substantially

limits” has been changed• Must evaluate impairment that is episodic or in

remission in active state• Must not consider mitigating measures

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

go” or has good and bad days

No “Mitigating Measures”

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

a hypothetical student

Mitigating Measures

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

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

neurological modifications Reasonable accommodations or other

auxiliary aids or services

Transitory Impairments A “transitory impairment” is defined

as an impairment with an actual or expected duration of six months or less. “Any impairment the duration of

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

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

What if the activity impaired is not learning? The child may still need a 504 plan The focus is on the effect on the student,

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

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

Eligibility Step by Step:1. Referral for evaluation2. Procedural Safeguards3. Written parental consent4. Evaluation 5. Conference6. Determination

When to refer a student Parents report health condition Parents request eval Student failing to make progress Staff refers student to SAT Student returning to school after a

serious injury Student failed to verify for SpEd Student habitually absent

Health Plan ≠ 504 Plan

504/Health Plans Tyler (Tx) Indep. Sch. Dist., (OCR

2010) • health care plan for diabetic students• Required to evaluate under 504

Dracut (Ma) Pub. Sch., (OCR 2010)• health care plan for peanut allergy• Required to evaluate under 504

504/Health Plans Opelika city (AL) Sch. Dist., (OCR

2010) • health care plan for diabetic

students• Required to evaluate under 504

Jan. 19 Guidance Document

Do Not Take Shortcuts!

Can We Just Provide Help without creating a plan?

No!! Remember: disability education

law is about PROCESS not RESULTS

Temple (TX) ISD, (OCR 1996)

Absences and Truancy

Absences and Truancy Absenteeism alone can trigger 504 Laramie County (WY) Sch. Dist., 51

IDELR 169 (OCR 2008)• student ill most of school year• placed on "homebound" status• his parent requested a 504 plan. • The district established a plan but did not

evaluate under 504 • OCR: absences should have triggered 504

eval• OCR: creating a plan not enough

Other cases re 504 referral Chapel Hill-Carrboro (NC) Schs., (OCR 2006)• Student too anxious to enter building.• 504 coordinator met with the parent • parent declined to release medical info.• student suffered a second attack 6 mos later• Calmed down after speaking w/ teacher. • No other teacher aware of anxiety problems • OCR: district reasonably believed student did

not require services for anxiety

Other cases re 504 referralCassopolis (MI) Pub. Schs., (OCR 2010) • 3rd grader diagnosed with ADHD, but no 504 • Never qualified for "Fun Fridays,"• Parent complained • OCR: district had sufficient information about

the student's difficulty and the parent's concern to trigger a referral

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

Parental Consent Parents must provide “informed consent” Parent Refusal to Consent

• To initial eval: district may, but is not required to, initiate due process to conduct the evaluation in the absence of consent. Dyersburg (TN) City Sch. Dist., (OCR 1988).

• To Reeval: In Letter to Durheim, (OCR 1997)

Cases re Parental Consent Ipswich (MA) Pub. Schs., (OCR 2006)

• Parents of two students with undisclosed disabilities repeatedly refused to consent to a Section 504 evaluation

• Parent later filed complaint with OCR• OCR: District did not discriminate against

the students by failing to assess their need for accommodations

Eligibility Step by Step:1. Referral for evaluation 2. Procedural Safeguards3. Written parental consent4. Evaluation 5. Conference6. Determination

Evaluation No timeline

• “within a reasonable period of time” Placement Team

• membership not prescribed • Individuals who are knowledgeable

about the student, the meaning of the evaluation data, and the placement options

Requirements for evaluation specified in the Section 504 regulatory provision at 34C.F.R. 104.35 http://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr104.html#S35

Evaluation Components• Aptitude and Achievement Test Scores• Test/evaluation material tailored to evaluate

the specific area of educational need • Grades• Teacher observations & recommendations• Physician’s medical diagnosis • Physical condition• Social and cultural background• Adaptive behavior• Discipline records• Attendance

Medical diagnosis issues Diagnosis alone not sufficient Must consider – along with info from

other sources May not require parents to provide

medical records If school determined medical

assessment necessary, district must ensure child receives assessment

504 Conference Who participates?

• No list – not IEP• Factually dependent• Parents not required to participate – but

MUST have input Discuss evaluation information Determine eligibility for 504 (Consider SpEd) Explain rights

Kids Not Meeting Potential

A child’s failure to perform to his/her potential is not sufficient reason for referral and evaluation Key is education benefit Jefferson Parish (LA) Public Schools,

(OCR 1990)

Drafting 504 PlansHave knowledgeable team members Ensure that the whole group makes

decisions about the 504 plan (Not single member like a parent) Individualize plans Be DetailedKeep it Simple

Plan must Be individually tailored to student

needs with appropriate modifications and accommodations Be detailed and specific Plan that listed accommodations “as

needed” deemed “sufficiently ambiguous to raise issue of fact for trial.” SLM v. Dieringer School Dist. 343 (W.D. Wash. 2008)

504 & Student Discipline

504 & Student Discipline Good News: drugs and alcohol are

simple• No special 504 procedures for using

or possessing drugs or alcohol at school

• Student Discipline Act procedures still apply

All other offenses: Must follow “IDEA Light” process

IDEA Light????

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

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

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

implementation failure

IDEA Light???? If manifestation

• Cannot discipline• Must consider whether plan needs to be

change If not a manifestation

• Can discipline like regular ed student• No IAEP