411 on 504 by KSB School Law

The 411 on 504 Karen Haase Harding & Shultz (402) 434-3000

khaase@hslegalfirm.com H & S School Law @KarenHaase

The Plan for Today

The Plan for Today • 504 Overview, general issues • Procedural Safeguards • Student Discipline

504 Overview

Primary Differences  Definition of disability is unique to each statute  No funding under 504  504 encompasses • Students • Employees • Patrons

Similarities  School districts must evaluate and determine eligibility  Both require • transportation, • accommodation/modification • related services

 LRE requirement

When is a district required to make a 504 referral? ď&#x201A;§ When district believes that the student has a physical or mental impairment that substantially limits one or more major life activities AND ď&#x201A;§ Student is in need of either regular ed with supplementary services or special ed. and related services

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.”

â&#x20AC;&#x153;Disabilityâ&#x20AC;? Defined by 504 A 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 ď&#x201A;§ First, the definition of â&#x20AC;&#x153;major life activityâ&#x20AC;? has expanded Now 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 ď&#x201A;§ First, the definition of â&#x20AC;&#x153;major life activityâ&#x20AC;? has expanded Now include but are not limited to:

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

Temporary 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 major life 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 â&#x2030; 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) â&#x20AC;˘ health care plan for diabetic students â&#x20AC;˘ 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 modifications without creating a 504 plan?  No!!  Remember: disability education law is about PROCESS not RESULTS  Temple (TX) ISD, 25 IDELR 232 (OCR 1996)

Absences and Truancy

Absences and Truancy  Excessive absenteeism alone can trigger need to eval for 504  Doesn’t have to be based on parent report  Note that just because a student has a disability does not mean all the absences are disability-related  Perry (OH) Public School District, 41 IDELR 72 (OCR 2003)

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)

Can a Parent Demand a 504 Plan instead of an IEP?

Can a Parent Demand a 504 Plan 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)

Procedural Safeguards

Required Procedural Safeguards â&#x20AC;&#x153;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.â&#x20AC;?

Required Procedural Safeguards  Schools are required to have a system of procedural safeguards regarding identification, evaluation and placement  System must include • • • •