section 504 presentation.final

Presented by: Debbie Bassett

February 4, 2012

A School’s Guide to Section 504

What is Section 504 of the Rehabilitation Act of 1973?

Civil rights legislationProtects individuals with disabilities

while they are working or participating in programs receiving federal financial assistance

(Skalski & Stanek, 2010; Jacob & Hartshorne, 2007, p. 175)

Prohibits exclusion from participation in

programs/activities based solely on

disability

“Reasonable steps to prevent

harassment”

Accommodations to ensure

equal opportunity

History of Section 504 and Special Education Law

History of Section 504Civil Rights Act: Title VI was amended to provide

equal educational opportunities to students with handicaps

Rehabilitation Act of 1973 (Pub. L. No. 93-112): included amended Title VI

Schools dismissed or misunderstood the law (i.e., antidiscrimination in the workplace)

Amendment to Rehabilitation Act: clarify intent to prohibit discrimination against students while in public school

Schools focused on compliance with Education for All Handicapped Children Act (Pub. L. No. 94-142)

Certain students falling through the cracks

Health, Education, and Welfare (HEW) began to require compliance

1964

1973

1974

1975

1979

(Jacob & Hartshorne, 2007)

History of Section 504Legal Battles: schools not making

accommodations

Advocacy Efforts: Argument for services for ADHD

Amendments of Pub. L. 94-142 U.S. DOE memorandum: ADD/ADHD students may

qualify under IDEA, SLD, emotional disturbance, or 504. Identified >20 strategies to assist students under 504

Americans with Disabilities Act: increased attention to 504 requirements/ grants protection beyond federally funded organizations

IDEA (formerly 94-142): provides another vehicle for accommodations

Trend: harassment claims on the rise

Amendments to ADA

Late 1980

1990

19972004

2009(Jacob & Hartshorne, 2007; Chapman, 2008)

Relationship of Section 504

and IDEA

Section 504 vs. IDEA

IDEA Section 504

Purpose Direct assessment, planning, educational provisions/services

Prevent discrimination

Funding Provides state funding Does not provide funding

Age Served Birth-21 or high school diploma

Lifetime

Population Schools All federally funded programs

Procedural regulation

Specific rules and requirements

Not strictly regulated

(Skalski & Stanek, 2010)

IDEA impact on Section 504

2004 IDEA: Support learning or behavior problems with special education funds (even if students don’t qualify for special education)◦Funds + ability to identify students as having

“other health impairment”= reduce 504s

Recently, increased litigation for over-identification of 504 eligibility◦“schools have “504’d” pupils…because of

educational need rather than identification of a handicap within the meaning of the law”

◦Child receives label and stigma(Jacob & Hartshorne, 2007, p. 179)

Section 504 vs. IDEA

Both can grant eligibility for special education, accommodation, and related

services

IDEA Section 504

“All students who are disabled under IDEA are considered to be handicapped and are…(protected by) Section 504”. However, students not disabled under IDEA may qualify for 504 services.

(Jacob & Hartshorne, 2007, p. 183)

Eligibility under Section 504 (Preventing Discrimination)

Qualification for Section 504: Breaking Down the Details

Section 504: (34 C.F.R. §104.4[a]) “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”

Does the child fit the qualifications for “handicapped/disabled”?

(Skalski & Stanek, 2010, p. 1)

“Handicap/Disability” Defined

34 C.F.R. §§104.3 [j-l]“…any person who (i) has a physical or mental impairment which substantially limits one or more major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment.”


“Physical or Mental Impairment”

Formal diagnosis is NOT requiredDiagnosis alone does not

determine eligibility

Physical: “any physiological disorder or condition affecting one or more body systems”

Mental: “any mental or psychological disorder, such as emotional or mental illness or a specific learning disability”



“Substantially Limit”2008 ADAA (in effect 1/2009)

•Determination should be made “without regard for mitigating measures such as medication, medical supplies or equipment, prosthetics, hearing aids, assistive technology, or auxiliary aids and services” • Exception: eyeglasses or contact lenses

•Note: Law doesn’t apply to transitory or minor impairments (actual/expected duration of <6 mo.)

• Can be considered “disabled” even when impairment “only limits a major life activity occasionally or is in remission”

(Skalski & Stanek, 2010, p. 3; U.S. Department of Education, 2009)

“Major Life Activities”

Not exhaustive listADAA allows for broader interpretations

(i.e., learning impairments include concentration, reading, thinking difficulties)

School accommodations: MUST show the disability substantially limits a major life activityWhat impact does the disability have in the child’s setting?What are the demands of the setting?

34 C.F.R. § 104.3 [j][2][iii]“…functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.”


(Skalski & Stanek, 2010, U.S. Department of Education, 2009)

Remember FAPEFree Appropriate Public Education

Under Section 504:Regular/special education or services are provided to “meet the individual educational needs of children with disabilities as adequately as the needs of children without disabilities are met” (Chapman, 2008, p. 82)

*Ask: “Is the child receiving FAPE?”Does he have access? Can she participate like her peers?(Skalski & Stanek, 2010)

“Record of/ Regarded as having such an impairment”

“Regarded as having an impairment”: (ADAA, 2008)‘‘An individual meets the requirement of ‘being

regarded as having such an impairment’ if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

(Jacob & Hartshorne, 2007, p. 182; Americans with Disabilities Amendment Act, 2008)

“Record of”: “history of, or has been misclassified as having,” an impairment which limits major life activities

“Record of/ Regarded as having such an impairment”

Allow a person/student to qualify for Section 504 if he/she hasn’t received formal, identified disability diagnosis

Protects individuals from discrimination “based on the perception of a handicap”

(Skalski & Stanek, 2010; Jacob & Hartshorne, 2007, p. 183)

Section 504 (Disability

Harassment Protection)

Harassment Protection

Section 504 & ADA: protects from harassment and hate crimes

IDEA: Courts can interpret persistent harassment as a loss of FAPE in LRE (Shore Regional High School v. P.S., 2004)

Schools required “to take reasonable steps to remedy harassment”

Definition: “oral, written, graphic, or physical conduct relating to an individual’s disability that is sufficiently severe, pervasive, or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the district’s programs or activities” (Jacob & Hartshorne, 2007, p. 181)


What are schools

required to do?

School Procedures:What are we legally required to do?District select 1 person (Section 504

Coordinator)◦ Create working system to comply with legal

requirements◦ Have a system of procedural safeguards available

permitting “parents to challenge actions regarding the identification, evaluation, or educational placement” i.e., Grievance procedures, standards for due process

and resolution of complaints

Regularly notify/inform parents and students “that it does not discriminate in its programs and activities on the basis of handicap (34 C.F.R. § 104.8)”

Written plan not required(Jacob & Hartshorne, 2007, p. 189, 180)

School Procedures: Best Practice

1. Method to advise parents of legal rights “General and individual notice for the

identification, evaluation, and placement of a student with a disability”

Notice of meeting when considering eligibility

Notice in Writing? Not required but good practice Not required to invite parents, but good practice

Notify parents of Section 504 rights Ex: Disciplinary standards and suspensions

According to Skalski & Stanek (2010), schools need 4 processes established:

(Chapman, 2008; Skalski & Stanek, 2010, p. 2, 4)


2. Eligibility Evaluation: Identification by a Multidisciplinary Team

Who? Knowledgeable about student, placement options, assessments conducted, etc.

Goals: Identify if disability exists: current, valid assessmentsConsider FAPE rights within the LRE

Parental Consent: Attain for testing beyond those given to all students AND/OR if determining need for special education (Skalski & Stanek, 2010)


3. Develop/ Implement IAP or 504 Plan(Individual Accommodation Plan)

No standardized format 504 doesn’t require a written plan, but most

district use a written plan Provide evidence supporting claim that

disability fits criteria of Section 504 + accommodations allowing same rights as peers

(Skalski & Stanek, 2010, p. 4; Chapman, 2008)


3. Develop/ Implement IAP or 504 Plan


What are reasonable accommodations?•Afford “equal opportunity” or “equal access”•Specific, unique to impairment•“should not fundamentally alter the nature of the activity or provide a student with an unfair advantage” If it does, IAP should indicate how the accommodation modifies the program’s nature. (Skalski & Stanek, 2010, p. 4)

What about testing accommodations?Cannot interfere with validity or change nature of examination


4. Periodic Review No specific reevaluation guidelines

Office of Civil Rights: IDEA 2004 guidelines for reevaluations sufficient for Sec. 504

Reevaluation not required every three yearsSignificant change warrants a review

At review, Multidisciplinary team decides: (a) Does impairment still fit criteria of Section

504? (b) Is the IAP “needed to protect a student from

discrimination?” (c) Does the IAP grant equal learning opportunity? (d) Are there new circumstances to address?

(Skalski & Stanek, 2010, p. 5; Jacob & Hartshorne, 2007)

Child referred for eval. Under IDEA: not found eligible

Early intervening services or informal

class accommodations

unless impairment under Sec 504

Suspect student may “qualify as handicapped” and need

services/accommodations

Request parent permission for evaluationNotify parents of 504 meeting (invitation not

required)Inform parents of legal rights & school’s duties

under Section 504

With Multidisciplinary Team, determine:1. Physical or mental impairment?2. Is a major life activity substantially limited?3. What accommodations are necessary so he/she can

“enjoy the benefits of the school program”?Time periods for evaluations not specified- 1992 case found

its reasonable to follow IDEA time frames

Develop accommodation plan or IEP

NOYES

Conduct evaluations (similar IDEA guidelines)

Specific diagnosis

isn’t required

Student has physical disability and appears to be able to access and participate in school programs with medical equipment ? Does he require a Section 504?No; already receiving FAPE. Doesn’t need accommodations or services. (Keep in mind ADAA regarding mitigating measures)


Parent requests an evaluation but the school disagrees? Are you legally required to evaluate the student? No. School aren’t required to conduct an evaluation based solely on parental suspicion, but still need to provide information on parent’s legal right to contest and resolution procedures


You work in an older school. Is it required that all buildings be made physically accessible?“Not necessarily. While buildings constructed after the Section 504 regulation was issued (that is, those built since 1977) must be fully accessible, older buildings do not have to be made fully accessible. For older buildings, the law requires that the program or activity be made accessible. A common way this is done is to relocate the program to another building that is accessible.”

(U.S. Department of Education, 2005)

What if….?

Noncompliance in Schools

Investigates Section 504 complaints

Reviews policies & practices regarding particular condition (e.g., ADHD, CI)

Ability to remove federal funds for noncompliance

(Jacob & Hartshorne, 2007)

Office for Civil Rights:

Resources Rules and Regulations: 34 C.F.R. Part 104

◦ http://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr104.html

Skalski & Stanek (2010) recommendations: Huefner, D.S. (2006). Getting comfortable with special

education law: A framework for working with children with disabilities (2nd ed.). Norwood, MA: Christopher Gordon Publishers.

Zirkel, P.A. (2009). The ADAA and its effects on Section 504 students. Journal of Special Education Leadership, 22(1), 3-8.

**Wrightslaw: http://www.wrightslaw.com◦ http://www.wrightslaw.com/info/

sec504.summ.rights.htm

ReferencesChapman, R. (2008). The everyday guide to special

education law (2nd ed.). Denver: The Donohue Group, Inc.

Jacob, S., & Hartshorne, T.S. (2007). Ethics and law for school psychologists (5th ed.). New York: Wiley.

Skalski, A.K., & Stanek, J. (2010). Section 504: A guide for parents and educators. National Association of School Psychology: Helping Children at Home and School III, pg. S8H35-S8H35-5. Bethesda, MD.

section 504 presentation.final

Documents

history of section

idea ideasection

special education law

eligibility schools

addadhd students

certain students

idea impact

special education funds