Dr. Elissa BrownDirector, Section § 504

NC Department of Public Instructionebrown@dpi.state.nc.us

0

Section § 504: AGENDA

AuthorityDefinition/Who is coveredProcesses & ProceduresIHP, 504, IEPTeam MembersAccommodationsBest Practices

§ 504: AuthorityOCR is the administrative authority to

enforce § 504 (1973; ADAAA 2008)State departments of public instruction have

no enforcement authority for issues arising under § 504

LEAs must identify the person responsible for ensuring compliance

§ 504 provides procedural safeguards

Who is covered?To be protected, a student must be determined to:

1 Have a physical or mental impairment that substantially limits one or more major life activities ; or

2 Have a record of such an impairment; or3 Be regarded as having such an impairment

34 CFR § 104.3(j)

Drill down deeper(1st prong) Have a physical or mental

impairment that substantially limits one or more major life activities (this generally creates the catalyst for referral for Section 504 plan)A physical or mental impairmentThat substantially limitsOne or more major life activities or major

bodily function

Substantial Limitation…is the inability to perform a major life

activity or major bodily function when compared to how the person in the general population performs the same major life activity or major bodily function

Major Life Activities…means functions such as caring for

one’s self; performing manual tasks; walking; seeing; hearing; speaking; breathing; learning; or working

ADAAA08 added…reading, concentrating, thinking, sleeping, eating, lifting, bending, communicating, and the operation of a major bodily function such as the immune system, normal cell growth, digestive, bowel, bladder functions

§ 504 Intent

The question of whether an individual’s impairment is a disability under the ADA

should not demand extensive analysis

Did you know…

An impairment in and of itself is not a disability. The impairment must

substantially limit one or more major life activities in order to be considered a

disability under§ 504

Cultural, Economic, & Environmental Factors

….three parts of definition specifies physical and mental disabilities…thus, cultural, economic, and environmental factors are not themselves covered. Such as…

-Homeless -Migrant-Poverty -Divorce-ESL -Military

deployment-Attendance problems -Death or other

family crisis

Annual Notice of Nondiscrimination• A recipient that employs 15 or more people• Initial and continuing steps to notify

participants, beneficiaries, applicants, and employees

• Does not discriminate in admission or access• Shall identify the official responsible for

ensuring compliance• Multiple methods of dissemination• If the service area contains limited English

language, public notifications must be disseminated in native language

Annual Notice Scenerio: What’s missing?

In compliance with Federal Law, Best Bet Schools administers all education

programs, employment, and admissions with out discrimination against any

person on the basis of gender, race, or religion

Child FindA public elementary or secondary education

program shall annually:Undertake to identify and locate every

qualified handicapped person residing in the recipient’s jurisdiction who is not receiving a public education; and

Take appropriate steps to notify handicapped persons and their parents/guardians of the recipient’s duty under this subpart

Clarifying terms and degrees of impairment/disability

Temporary impairmentIndividual Health Plan (IHP)

Section 504Individual Education Plan

(IEP)

Temporary ImpairmentA temporary impairment does not constitute

a disability for purposes of Section 504, unless its severity is such that it substantial limits a major life activity for an extended period of time

Case-by-case basisConsideration of 1) duration of impairment

and 2)extent to which it limits major life activity

IDEA SECTION 504Funding Statute Non-funding statute

Discrete categories of disabilities Broadly defines disabled children

Procedural Due Process Procedural Due Process

“Pure” Section 504 children are not covered under IDEA

All IDEA children are covered by Section 504

IEP’s reasonably calculated to convey educational benefit

Meet the needs of the disabled students as adequately as non-disabled

Child Find Child Find

Consent for Evaluation Consent for Evaluation

Side-by-Side: IDEA and § 504IDEA SECTION 504

Evaluation Evaluation

Eligibility-Adversely Affects Eligibility-Substantial Limitation

Annual Review No Annual Review (mandated)

LRE LRE

Consent for Placement No consent for placement

Special Education Accommodations

Re-evaluation Re-evaluation

Discipline-Manifestation Discipline-Manifestation

Individual Health Plan (IHP)Responsibility of School Nurse to develop State policy (not federal statute) Each LEA shall make available a

registered nurse for assessment, care planning, and on-going evaluation of students with special health care service needs

IHP; Section 504; IEPWith a partner or small group:Discuss the similarities and differences

between an Individual Health Plan (IHP), a Section 504 Plan, and an Individual Education Plan (IEP)

When would you choose one or the other?When is an IHP enough and when do you

need a 504?

Did you know….Q: How should the school respond if

parents reject IDEA eligibility and demand a 504 plan?

A: Parents may not reject the IDEA services and then expect the school to develop a 504 plan. A rejection of services under the IDEA amounts to a rejection of FAPE under Section 504.

Did you know…

A 504 plan is not legally sufficient to substitute for an IEP. IDEA sets out

specific requirements for the development and content of a student’s

IEP

Section 504 Plans & IEPsSection 504 eligibility is not a consolation prize

for students who do not qualify for special education (Zirkel, P. Lehigh University)

IDEA regulations do not allow a 504 plan to substitute for an IEP. The IDEA and its regulations set out specific requirements for the development and content of a student’s IEP. (Letter to Morse, OSEP: 10-03-03)

Consent for Evaluation: 504

Must have parent consent for evaluation but not required to have

parent consent for services

Eligibility ProceduresMust draw upon information from a variety of

sourcesDocument and carefully consider all

information, including any new dataTeam decides…group should be

knowledgeable about condition, student, context, capacity

LRE appropriate appropriate to learner

Accommodation PlanEvaluation drawn from a variety of sources-

traditional and nontraditional sources (including aptitude/achievement measures, medical documentation, psychological evaluations, curriculum-based, teacher anecdoctal notes, etc.)

Developed in accordance to LEA procedures

Accommodation PlanReviewed (best practice annually) as

appropriate (frequently as needed)Documented and coherentIncludes supplemental aides, related

services, field trips, recess, lunch, clubs, athletics

Written by the team, communicated & disseminated

Procedures should be in place to monitoring plan implementation

Team Members (Multi-disciplinary committee)

Speech, OT, PT, child nutrition-match to child’s documented needs

General Educator(s)School NurseSchool CounselorAdministrative personnelParent, Student, Advocate

Persons knowledgeable about child, meaning of data, placement options

ImplementationGeneral education teachers must implement

the provisions of the Section 504 plans when those plans govern the teachers’ treatment of students for whom they are responsible. If the teachers fail to implement the plan, it can cause the LEA to be in noncompliance

If teachers do not implement the § 504, the majority of times, it is a miscommunication issue

State Testing Accommodations

Use NCWISE “testing accommodations chart” form

www.ncpublicschools.org/accountability/policies.tswd

Accommodations that are listed on Section 504 Plan must be used

routinely in classroom instruction, classroom assessments, and on state

assessments

Procedural Safeguards

Notice to parent with accompanying documents Re-evaluation before a significant change in

placementGrievance proceduresDesignation of employee responsible for

compliancePublic notice of nondiscrimination policy

Procedural Safeguards (cont.)Parents rights to review educational records,

appeal any decision regarding evaluation and placement through an impartial hearing

Discussion questionsDiscuss how your LEA does the following:What processes are in place for transfer

students?What constitute reasonable services under

504?What procedures are in place for 504 re-

evaluation?What procedures are in place to monitor plan

implementation?

Best Practices

Annual Review Parent, student, professional that matches

need (eg Child Nutrition) at team meetingConsent for placementMultiple sources of data Instructional and testing accommodations

matchMore detail is better than not enough detail

Best PracticesBe proactive-provide accommodations listed

in the Section 504 plan; don’t wait for a student to request them

Delineate roles and responsibilities for services as well as disability discrimination complaints

Do not use learning as the only gauge of § 504 eligibility

Update forms

Section 504 Resourceshttp://www.uwsp.edu/education/pshaw/

Portfolios/KIM%20MEISSEN/inetpub/SOEportfolio/504resources.html

www.eeoc.govhttp://wrightslaw.com/ http://www2.ed.gov/about/offices/list/ocr/504f

aq.htmlLRP.com

Future DirectionsCreate state guidance documentFacilitate professional development Create process through NCWISE to collect

annual reporting data (headcount and/or accommodations)

Testing Accommodations Chart-accountability www.ncpublicschools.org/accountability/policies.tswdContinue collaboration between and among

agencies (Child Nutrition, Exceptional Children, School Nurses, etc)