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The 411 on 504 Karen Haase Harding & Shultz (402) 434-3000 [email protected] H & S School Law @KarenHaase
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The Plan for Today
The Plan for Today
504 Overview Eligibility Step-by-Step Drafting Plans Referral Process Procedural Safeguards Discipline Extracurriculars
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
504 IDEA• Disability substantially
limits one or more major life activities
• LEA sets qualification standards
• Accommodations do not modify curriculum or change standards
• Parents may be on team, MUST have input
• Plan review periodically
• disability interferes with ability to learn
• Rule 51 sets qualification standards
• Accommodations may modify curriculum, instruction, materials and assessments
• Parents MUST be on team
• Plan review annually
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
When district believes that the student has a physical or mental impairment that substantially limits one or more major life activities AND
Student is in need of either regular ed with supplementary services or special ed. and related services
When is 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
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
When is school required to make a 504 referral?
What constitutes a “substantial limitation?”
504 regs do not define: “The Department does not believe that a definition of this term is possible at this time.”
Phrase is to be defined by local education agency
“substantial limitation?”Congress: a major life activity is substantially limited when “the individual's important life activities are restricted as to the conditions, manner or duration under which they can be performed in comparison to most people.”
Disability Defined by 504A person has a disability under Section 504 if he or she has a mental or physical impairment, has a record of such impairment, or is regarded as having such an impairment which substantially limits one or more major activities.
Changes to ADA
Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) The ADA Amendments Act of 2008
increased the number of individuals who qualify for accommodation under both the Americans With Disabilities Act and Section 504 of the Rehabilitation Act of 1973.
Major Changes First, the definition of “major life activity”
has expandedNow include but are not limited to:Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
Major Changes First, the definition of “major life activity”
has expandedNow include but are not limited to:Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
Major Changes Second, interpretation of “substantially
limits” has been changed• Must evaluate impairment that is episodic or in
remission in active state• Must not consider mitigating measures
Episodic Impairments Asthma Chron’s Disease IBS Any other disease that can “come and
go” or has good and bad days
No “Mitigating Measures”
A student may be eligible under Section 504 even if the student’s disability or condition is controlled or mitigated, whether by medication, technology, etc. This means you may be evaluating
a hypothetical student
Mitigating Measures
Mitigating Measures Medication Medical supplies, equipment, appliances Low-vision devices (NOT ordinary
eyeglasses or contacts) Prosthetics Hearing aids/cochlear implants Learned behavioral or adaptive
neurological modifications Reasonable accommodations or other
auxiliary aids or services
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.”
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
Health Plan Action Steps List of all kids with health plan List of all kids on medication and
what meds are List of all kids identified by parent
as having health condition Train school nurse!
Transferring Students
Transferring Students Students may have a 504 in one district
and not in another Not like IDEA, where school has to
implement IEP until MDT meets Each district is responsible for
determining for itself what the phrase “substantially limits” means
Letter to McKethan, 23 IDELR 504 (OCR 1994)
Do Not Take Shortcuts!
Can We Just Provide Help without creating a plan?
No!! Remember: disability education
law is about PROCESS not RESULTS
Temple (TX) ISD, (OCR 1996)
504 and Private Schools
504 and Private Schools Public schools aren’t obligated to
provide 504 services at private schools • Letter to Vier, 20 IDELR 864 (OCR
1993) 504 applies to private schools
independently• Bristol (CT) Pub. Schs., 55 IDELR 207
(OCR 2010)
So, Let’s Get Practical
Eligibility Step by Step:1. Referral for evaluation2. Procedural Safeguards3. Written parental consent4. Evaluation 5. Conference6. Determination
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
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
Other cases re 504 referralD.G. v. Somerset Hills Sch. Dist., (D.N.J. 2008)• Student had behavioral problems in school • Threatened suicide to staff• Mother told staff about depression and
hospitalizations, and expressed concerns• Court: denied motion to dismiss the student's
claim; determined that the student met the pleading requirements for a Section 504 claim
Eligibility Step by Step:1. Referral for evaluation2. Procedural Safeguards3. Written parental consent4. Evaluation 5. Conference6. Determination
Procedural Safeguards
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.”
Required Safeguards Schools are required to have a system
of procedural safeguards regarding identification, evaluation and placement System must include
• Notice• Opportunity to examine records• Impartial hearing • Review procedure
Required Safeguards Schools are required to have a system
of procedural safeguards regarding identification, evaluation and placement System must include
• Notice• Opportunity to examine records• Impartial hearing • Review procedure
Required 504 Notices General Nondiscrimination Notice Child Find Notice Notices to Parents:
• When 504 conferences are being held• Eval. and reeval. decisions • Eval results and eligibility decisions• Program decisions • Changes in placement or termination• Procedural Safeguards/Due Process
Required 504 Notices
Required Safeguards Schools are required to have a system
of procedural safeguards regarding identification, evaluation and placement System must include
• Notice• Opportunity to examine records• Impartial hearing • Review procedure
Examine Records
Eligibility Step by Step:1. Referral for evaluation2. Procedural Safeguards3. Written parental consent4. Evaluation 5. Conference6. Determination
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
Durkee ex rel. M.D. v. Livonia Cent. Sch. Dist., (W.D.N.Y. 2007)• Parents told school they would not seek or
accept special education services• District sued seeking to compel the student
to undergo an eligibility evaluation• Court: judgment for the parents and
enjoined the district from evaluating the child or seeking permission to conduct an assessment
Cases re Parental Consent
San Jose Unified Sch. Dist. (OCR 2006)• School asked to eval student; parent refused• Student made sexually suggestive phone call
to a male teacher• School proposed discipline• Parent filed OCR compliant• OCR district had no obligation to conduct
manifestation determination
Cases re Parental Consent
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
Eligibility Step by Step:1. Referral for evaluation 2. Procedural Safeguards3. Written parental consent4. Evaluation 5. Conference6. Determination
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
Can a Parent Demand a 504 Instead of an IEP?
No When a child qualifies under
IDEA, district satisfies the provisions of 504 through the IEP
Letter to McKethan, 25 IDELR 295, 296 (OCR 1996)Lyons v. Smith 20 IDELR 164, 167 n. 11 (DCDC 1993)
Can a Parent Demand a 504 Instead of an IEP?
Eligibility Step by Step:1. Referral for evaluation 2. Procedural Safeguards3. Written parental consent4. Evaluation 5. Conference6. Determination
Meet Freddy Flyspan
Is Freddy Eligible?
Freddy referred for Section 504 consideration by his mother, Frances Flyspan. Frances reports that Freddy suffers
from ADHD. Frances reports he is unable to focus on
focus on a homework for for more than 4 minutes.
Doctor’s Note Freddy Suffers
from ADHD Freddy has classic
ADHD symptomsMother Reports
Prior ADHD diagnosis
More on Freddy
Diagnosis of ADHD from MD Currently on meds Good grades overall Weak on homework and long projects No significant discipline reports Performs better in small groups, one-on-one President of video game club
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)
So, Does Freddy Qualify?
If Freddy is not eligible. . . A written notice of the finding that
the student is not eligible must be provided to parents, along with a notice of their right to appeal this determination. DO NOT USE IDEA FORMS!
If Eligible 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)
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
Drafting 504 PlansIssues to Discuss Organization Environment Lesson presentation Assignments Test-taking Medical accommodations. Behavioral issues
Drafting 504 PlansHealth Issues Medical needs Psychological needs related to health Physical Social Academics Transportation
Accommodations v. Modifications
Accommodations
• Preferential seating• Extended time• Use of peer notes• Use of calculator• Books on tape• Tests given in
alternative location
Modifications
• Requiring student to learn less material
• Revising content• Shortening
homework/tests• Alternate
assessments
Cases re 504 Plans Laramie County (WY) School District,
(OCR 2010)• development of a generic plan for a
student fell short of agency standards Inglewood (CA) Unified Sch. Dist.,
(OCR 2008)• District violated Section 504 by failing to
clearly describe the services provided to a student
Students Rejecting Accom. In Lansing Central School District, 58
IDELR 291 (OCR 2012) when a student refuse accom.
• Document refusal (consider worksheet)• Ensure teachers understand accom. • Meet informally with student• Convene 504 team• Discuss different ways to provide the
accommodation to the student
Freddy’s 504 Plan
Procedural Safeguards
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.”
Required Safeguards Schools are required to have a system
of procedural safeguards regarding identification, evaluation and placement System must include
• Notice• Opportunity to examine records• Impartial hearing • Review procedure
Required Safeguards Schools are required to have a system
of procedural safeguards regarding identification, evaluation and placement System must
• Notice• Opportunity to examine records• Impartial hearing • Review procedure
Impartial Hearing No guidance in regs: check policies! Cases
• Ms. H. v. Montgomery County Bd. Of Ed., 56 IDELR 268 (M.D. Ala. 2011)
• Houston (TX) Indep. Sch. Dist., 25 IDELR 163 (OCR 1996)
• Letter to Anonymous, 18 ID1991) • Griffith (IN) Pub. Schs., 40 IDELR
105 (OCR 2003)
Impartial Hearing
Required Safeguards Schools are required to have a system
of procedural safeguards regarding identification, evaluation and placement System must include
• Notice• Opportunity to examine records• Impartial hearing • Review procedure
Review Procedure Must Have Internal Review/Appeal
Procedure No guidance in regs: check policies! Cases
• Pennsylvania Dep’t of Educ., (OCR 1993) • Massachusetts Dep’t of Special Educ.,
(OCR 1992) No administrative exhaustion
Review Procedure
Time for a Break?
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
Freddy’s Back!
The principal breaks up a fight that Freddy is involved in Principal also confiscates a knife from
Freddy Past practice
• long term suspension for fight• expulsion for weapon
Freddy’s Manif. Det.
504 & Extracurriculars
504 & Extracurriculars• South Lyon (MI) Cmty Schs, 54 IDELR
204 (OCR 2009) • Marana (AZ) Unif Sch Dist, 53 IDELR
201 (2009) • Nashville (TN) Sch Dist, 53 IDELR 337
(OCR 2009)
504 & Noncurriculars• Raytown (MO) C-2 Sch Dist, 53 IDELR
239 (OCR 2009)• Shoreline (WA) Sch Dist No. 412 (24
IDELR 774 (OCR 1996)• Wilson County (TN) Sch Dist, 50 IDELR
230 (OCR 2008)
