Cry “Havoc!”and Let Slip the Dogs of 504

Presented by Daniel A. Osher

Topics

• Introduction – What is Section 504• What is at Stake• Child Find• Assessment• Eligibility• Services and Accommodations• Implementation• Other Issues (e.g., Athletics)

“No qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance.”(34 C.F.R. § 104.4)

Anti-DiscriminationAnti-Discrimination

Section 504Section 504Thou shalt nots:

– Deny a qualified handicapped person the opportunity to participate in or benefit from the aid, benefit, or services;

– Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or services that is not equal to that afforded to others;

– Provide a qualified handicapped person with an aid, benefit or service not as effective as that provided to others;

– Provide different or separate aid, benefit or service to handicapped person unless necessary to provide effective aid, benefit, service as effective as those provided to others.

(34 C.F.R. section 104.4(b).)

Section 504

What is at stake?

Dispute Resolution

• OCR complaints

• 504 due process hearings.

• Parents may file lawsuits in state or federal courts (no duty to first file an OCR complaint or request an impartial hearing).– If the student qualifies under both

Section 504 and IDEA, the student must first pursue all available IDEA remedies before suing.

Availability of Damages

Money damages are available for a violation of Section 504, even if a remedy is also available under the IDEA.

(Mark H. v. Hamamoto (9th Cir. 2010) 620 F.3d 1090.)

Availability of Damages

Damages are only available for “intentional discrimination”

• “Discriminatory animus” or• “Deliberate indifference”

– “knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that likelihood.”

(Mark H. v. Hamamoto (9th Cir. 2010) 620 F.3d 1090.)

Availability of Damages

ExampleFive incidents of peer harassment did not lead to liability for deliberate indifference, because the District took action to address the bullying.(G.M. v. Dry Creek Joint Elementary School District (E.D. Cal. 2012) 112 LRP 45036.)

Damages

• We’re seeing increased claims for 504 damages, often alleging:

– Intentional violation of IDEA– Harassment– Physical abuse

Child Find

Child FindChild Find

• School districts must identify and serve every qualified handicapped person residing within the district’s jurisdictional boundaries.

• Cannot require parents to obtain diagnosis.

Child Find

Make sure school site staff is trained in child-find obligations!!

Assessment

Assessment

• When should you refer a student for an assessment?

• Must promptly assess when there is a reason to suspect the student might qualify for Section 504.– Must a district always assess upon parent

request?

Assessment and RTIAssessment and RTI

A district may delay assessment while trying RTI if the district informs the parents:– Implementing RTI will delay making 504 eligibility

determination;– Expected length of RTI trial period; and– Conclusions reached at end of RTI period.

(Acalanes Union High Sch. Dist. (OCR 2009) 109 LRP 32284.)

Assessment and Student Study Teams

• Student study teams and RTI can be a useful early intervention, but are not a substitute for a 504 assessment and plan if student qualifies.

(Beaumont Unified Sch. Dist. (OCR 2009) 109 LRP 24517.)

Assessment

• Assessment must address all suspected areas of disability. (East Side Union High Sch. Dist. (OCR 2009) 109 LRP 32280.)

Assessment

What is involved in a Section 504 assessment?– It must provide enough information to

determine whether a student qualifies, and how to serve the student.

– It must address all areas of suspected disability.

AssessmentAssessment

• Information to consider as part of assessment:– Input from teachers, parents, and

doctor– Aptitude and achievement tests– Social and cultural background– Adaptive behavior– Formal assessment results

(U.S. Department of Education, Frequently Asked Questions About Section 504 and the education of students with Disabilities.)

Assessment

• Medical diagnosis itself is not sufficient to constitute an evaluation or to qualify a student.

• Why not?

Eligibility

Eligibility

“It is the intent of Congress that the primary object of attention . . . Should be whether entities covered under the ADA have complied with their obligations, and... The question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”

(122 Stat. 3553 § (2)(b)(5).)

Eligibility““Disability” Should Be Construed Disability” Should Be Construed BroadlyBroadly

The amended ADA states:“The definition of disability shall be construed in favor of broad coverage of individuals . . . To the maximum extent permitted by the terms of this Act.”

(42 U.S.C. 12102(4)(B).)

Eligibility• A Student qualifies as handicapped under Section 504 if

he/she:

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

2. Has a record of such impairment; or3. Is regarded as having such impairment.

• A student who qualifies under (1) is entitled to FAPE. • A student who qualifies only under (2) or (3) is not entitled to

FAPE, but districts may not discriminate against such students on the basis of the impairment.

(34 C.F.R. section 104.3(j)(1); St. Clair County (MI) Regional Educational Service Agency (OCR (MI) 2009) 109 LRP 69400.)

Eligibility• To be entitled to a 504 FAPE, a student must

meet all of these criteria:

– Physical or mental impairment that– Substantially limits– One or more major life activities

Eligibility: Physical or Mental Impairment Defined

• Physical or mental impairment means any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special senses organs; respiratory (including speech organs); cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic system; skin and endocrine; or

• Any mental or psychological disorder such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.

(34 C.F.R. section 104.3(j)(2)(i).)

Eligibility: Impairment is Temporary or in Remission

• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

• A temporary impairment is not a disability unless it results in a substantial limitation of a major life activity for an extended time.

(42 U.S.C. section 121204(4)(D).)

Eligibility: Major Life Activities

Major life activities 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.”

(42 U.S.C. § 12102(1)(B).)

Eligibility: “Substantially Limits”

A purpose of the ADAAA is:• “to convey congressional intent that the

standard created by the Supreme Court . . . for ‘substantially limits’ . . . Has created an inappropriately high level of limitation necessary to obtain coverage.”

(122 Stat. 3553 § 2(b)(5).)

Eligibility: “Substantially Limits”

A person has a substantial limitation when one or more important life activities are:– “restricted as to the conditions, manner, or duration

under which they can be performed in comparison to most people.”

(ADAAA Statement of Senate Managers.)

Eligibility: “Substantially Limits”

• In determining whether a student’s mental or physical impairment substantially limits the major life activity of learning, the district should compare the student’s academic progress to that of the “average child,” not a child of similar intellectual potential.

• “substantially limited” ≠ not reaching his or her potential.

(T.J.W. By Butler v. Dothan City Bd. Of Ed. (D.C. Alabama 1997) 26 IDELR 999.)

Eligibility: Mitigation Measures

When determining eligibility, districts cannot consider mitigating measures, such as accommodations, assistive technology, or behavioral modifications.– Exception: ordinary eyeglasses and contact

lenses.(42 U.S.C. section 12102(4)(E).)

Eligibility: Mitigation Measures

Why can’t mitigation measures be considered?

“Medical” 504 Plans

• A medical condition (e.g. diabetes) can entitle a student to a 504 plan.

• Emergency or Student Health Plan is not a substitute for a 504 Plan!

Example• ADHD student, and does not qualify for special

ed. • Difficulty concentrating, trouble staying on task,

but with frequent reminders and cuing from teacher, and placement in front of class, student is able to learn and participate in school.

• Student maintains a B average.• Would this student qualify for Section 504?

Services and Accommodations

Relationship Between 504 and IDEA

REGULAR EDUCATION

ONLY STUDENTS

504 ONLYSTUDENTS

IDEA & 504STUDENTS

FAPE Requirements

What is FAPE under Section 504?– The provision of regular or special education

and related aids and services that are designed to meet individual educational needs of handicapped person as adequately as the needs of a nonhandicapped are met. (34 C.F.R. section 104.33)

– FAPE is not limited to accommodations. (San Dieguito Union Sch. Dist. (OCR 2009) 109 LRP 54723.)

FAPE

What does this mean in practice?• If a student needs special education to

receive a FAPE under Section 504, the student may well qualify under the IDEA.

FAPE

• “A fundamental objective for this process is to individualize the placement and supports to be received by each child.”

• Example: Virtually every student with a disability at a middle school had a behavior intervention plan. Behavior plans were used as justifications for finding that behaviors were not a manifestation of a student’s disability. This violated Section 504.(Long Beach Unified Sch. Dist. (OCR 2009) 109 LRP 54733.)

FAPE: Least Restrictive Environment

• Section 504 provides a right to placement in the least restrictive environment.

• Students with disabilities must be served in the same setting as nondisabled students “to the maximum extent appropriate to the needs of the handicapped person.”

FAPE

So, how do you decide what a 504 student needs to receive a FAPE?

• Determine, on an individual basis, based on assessment, what placement, services, and accommodations the student needs to access educational opportunities in the least restrictive environment.

Equal Access

• Section 504 students cannot be given lesser opportunities than regular education students– Districts cannot give students with disabilities:

• Inferior facilities• Less-qualified teachers• Shorter school days (unless required by specific student’s

disability)

– Example: COE operated a school for students with severe disability. School day was shorter than at other district schools; this violated Section 504.

(Azusa Unified Sch. Dist. (OCR 2009) 109 LRP 24391.)

Equal Access

Example:• District set up special “Back to Basics” program at an

elementary school site. Parent alleged District had policy of excluding students with disabilities.

• District said no such policy, but even if there had been, it does not have to provide every program at every site.

• OCR held that this program was only available at that site, and was not available to students with disabilities.

(Santa Clara Unified Sch. Dist. (OCR 2009) 109 LRP 31661.)

Equal Access

Counter-example:District did not violate 504 by turning away special education student who did not meet magnet school’s entrance criteria.

(Oman v. Portland Public Schools (9th Cir. 2012) 679 F.3d 1162.)

Implementation

Implementation

• It’s not enough to give a student a Section 504 plan; the plan also must be consistently implemented.

• Make sure all of the following are familiar with a student’s 504 plan:– Teachers– Principal– Other administrators responsible for discipline– Service providers

(San Lorenzo Unified Sch. Dist. (OCR 2009) 109 LRP 69420.)

Implementation

• Site coordinators must monitor 504 plans– Ensure that all appropriate staff are

aware of and are properly implementing 504 plan

– Ensure that the plan is meeting the student’s needs

– If the plan is not meeting the student’s needs, reconvene 504 team to revise plan

504 Student Discipline

Section 504 students have the same rights re: discipline as special education students

Other Potential 504 Traps

504 Student Discipline

• Disciplinary rights include:– Manifestation determination meeting– No disciplinary changes in placement due

to behavior caused by disability

Extra Curricular Activities• Section 504 requires equal access and opportunity

to participate in non-academic and extra-curricular activities.

• This is separate from the FAPE requirement. Districts must provide reasonable accommodations. (Conejo Valley Unified Sch. Dist. (OCR 2009) 109 LRP 54727.)

After School Programs

• Section 504 right to equal access applies to after school activities.

• Example: Student wants to participate in afterschool gymnastics club, but needs glucose testing and insulin administration.

• Must the District provide the testing and administration?

(Dear Colleague Letter (OCR 2013) 60 IDELR 167.)

Athletics

“A school district . . . may not rely on generalizations about what students with a type of disability are capable of – one student with a certain type of disability may not be able to play a certain type of sport, but another student with the same disability may be able to play the sport.”

(Dear Colleague Letter (OCR 2013) 60 IDELR 167.)

Athletics

Must make reasonable accommodations and provide aids and services necessary to ensure equal opportunity to participate.

Athletics

• District does not have to make modifications that would “fundamentally alter” the program or sport.

• District may maintain safety standards.

Athletics

Example• Student has a hearing impairment, but otherwise

qualifies for track team.• Student wants a visual cue to be used

simultaneously with the starting gun.• Must the District provide this accommodation?

(Dear Colleague Letter (OCR 2013) 60 IDELR 167.)

Harassment

• Districts must protect students with disabilities from peer harassment. In cases of peer-to-peer harassment, districts must promptly investigate and take any necessary remedial action.

• Example: Students were making derogatory comments about 14-year-old female burn victim’s disabilities. District concluded that this was typical middle school behavior, and did not investigate. OCR found that District violated Section 504.

(Fairfield-Suisun Unified Sch. Dist. (OCR 2008) 51 IDELR 139.)

Notice of Parental RightsNotice of Parental Rights

• The District must give parents copies of their Section 504 rights

• Parents should be given rights:– Upon initial referral for assessment– At all 504 team meetings– Whenever denying a parental request

• Also include parental rights in student handbook

Interpreters

• The District must provide a qualified interpreter for non-English speaking parents.

(DeKalb (GA) Sch. Dist. (OCR 1991) 18 IDELR 921.)

Interpreters

• Interpreters should have:– Ability to communicate information accurately and

completely in both English and in the other language in a written and/or oral format;

– Knowledge of basic disability-related and special education terms or concepts;

– Training regarding the role of interpreter and translator, the ethics of interpreting and translating, and the need to maintain confidentiality.

• It’s not ok to ask the parent to bring an interpreter!

Summary

• Provide parental rights upon initial referral and at 504 team meetings

• District has the duty to identify and assess students• Assessment must encompass all areas of suspected disability,

and be more than a doctor’s note• Develop a 504 plan that addresses all areas of need relating to

disability• Make sure that 504 plan is properly implemented by all service

providers• Make sure that 504 plan is changed when necessary• Proactively address disability-based harassment

sso003068

Disclaimer:These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal advice, you should contact your local counsel or an attorney at Lozano Smith. If you are interested in having other in-service programs presented, please contact clientservices@lozanosmith.com or call (559) 431-5600

Copyright © 2013 Lozano SmithAll rights reserved. No portion of this work may be copied, or sold or used for any commercial advantage or private gain, nor any derivative work prepared there from, without the express prior written permission of Lozano Smith through its Managing Partner. The Managing Partner of Lozano Smith hereby grants permission to any client of Lozano Smith to whom Lozano Smith provides a copy to use such copy intact and solely for the internal purposes of such client.