61 IDELR 265

SpecialEdConnection® Case Report

61 IDELR 265 11 ECLPR 20 113 LRP 15322

Broward County (FL) School District Office for Civil Rights, Southern Division, Atlanta (Florida) 04-12-1424 January 1, 2013 Related Index Numbers 70. CHILD FIND

were being treated for bipolar disorder. Although the district explained that it chose not to evaluate the students at that time because it did not perceive them to have any problems that impacted their learning, the district's conference notes indicated that the children were struggling to maintain grade-level work. In any case, Section 504 eligibility is not limited to those students whose disabilities impact learning, OCR explained. The students' truancy, as well as doctors' notes provided to school personnel, were indicators that the students' health concerns impacted their learning and other major life activities as well.

185.035 Need for Evaluation 145. DELINQUENT/TRUANT CHILDREN

Judge / Administrative Officer Cynthia G. Pierre, Regional Director

Case Summary Because it failed to evaluate two oft-absent kindergartners within a reasonable period of learning that they were being treated for bipolar disorder, a Florida district violated its child find duty. OCR reasoned that although the district learned of the treatments in April 2011 and April 2012, respectively, as of December 2012, it still had not completed its evaluations of the students. The students both missed numerous school days for four consecutive years, including during the 2011-12 school year when each student was absent more than 30 days. According to the parent, the students' medications caused nausea and tiredness, which impacted the students' ability to attend school. The parent filed an OCR complaint alleging that the district failed to timely evaluate the children. OCR noted that a district must conduct an evaluation within a reasonable period of time after a district has reason to suspect that a student, because of a disability, may need special education or related services. Here, the district should have initiated evaluations for the first student in April 2011, and the second student in April 2012, OCR concluded. OCR pointed out that in April 2011, staff members learned that the first student was being privately evaluated for bipolar disorder. Moreover, in April 2012, the guidance counselor was informed that both students

Copyright © 2014 LRP Publications

Full Text Appearances: Dear Mr. Runcie: The U.S. Department of Education (Department), Office for Civil Rights (OCR), has completed its investigation of the above-referenced complaint which the Complainant filed on August 3, 2012, against the Broward County School District (District) alleging discrimination based on disability.

Specifically, the Complainant alleged the District, discriminated against her clients (Students 1 and 2) when the District failed to timely evaluate the Students for special education services and discriminated against them by rescinding their reassignment to Cooper City Elementary School (School), due to absences, which are manifestations of their disability.

OCR investigated the complaint pursuant to Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794, and its implementing regulation, 34 C.F.R. Part 104, which prohibit discrimination on the basis of disability by recipients of Federal financial assistance; and Title II of the Americans with Disabilities Act of 1990 (Title II), 42 U.S.C. § 12131, and its implementing regulation, 28 C.F.R. Part 35, which prohibit discrimination on the basis of disability by public entities. The District receives Federal financial assistance and is a public entity. Accordingly, OCR has jurisdiction over this

1

SpecialEdConnection® Case Report

complaint.

OCR investigated the following legal issues: 1) Whether the District discriminated against the Students when it failed to timely evaluate the Students, once they were notified in April 2012 of their bipolar disorder, in noncompliance with Section 504 and its implementing regulation at 34 C.F.R. § 104.35(a), and Title II and its implementing regulation at 28 C.F.R. § 35.130(a).

2) Whether the District discriminated against the Students by rescinding their reassignment to the School, due to absences, which are manifestations of their disability, in noncompliance with Section 504 and its implementing regulation at 34 C.F.R. § 104.4(a), and Title II and its implementing regulation at 28 C.F.R. § 35.130(a).

In reaching a determination, OCR reviewed and analyzed documents pertinent to the complaint issues and interviewed the Complainant, the Students' mother (Mother), School staff and District administration. OCR evaluates evidence obtained during an investigation under a preponderance of the evidence standard to determine whether the greater weight of the evidence is sufficient to support a conclusion that a recipient failed to comply with a law or regulation enforced by OCR or whether the evidence is insufficient to support such a conclusion.

Based on the investigation, OCR found sufficient evidence to support a finding of noncompliance with respect to the allegations. The factual and legal bases for our conclusion are below.

Legal Standards The regulation implementing Section 504 at 34 C.F.R. § 104.3(j)(1)(i) and (iii), which OCR interprets to include the recently expanded definitions from the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), defines a disabled person as any person who has a physical or mental impairment which substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment. The regulation implementing Section 504 at 34 C.F.R. §

Copyright © 2014 LRP Publications

104.3(j)(2)(i), which OCR interprets to include the recently expanded definitions from the ADAAA, defines physical or mental impairment as (A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The regulation implementing Section 504 at 34 C.F.R. § 104.3(j)(2)(ii), which OCR interprets to include the recently expanded definitions from the ADAAA, provides that the phrase "major life activities" means functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. The ADAAA added the following examples of major life activities to this non-exhaustive list: eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating, and functions of the immune system, normal cell growth, digestive, bowel, bladder, brain, circulatory, endocrine, reproductive, neurological, and respiratory functions.

The Section 504 implementing regulation at 34 C.F.R. § 104.4(b)(1)(iii) states that disabled persons may not be provided with an aid, benefit, or service that is not as effective as that provided to others.

The Section 504 implementing regulation at 34 C.F.R. § 104.4(b)(4) states that a recipient may not, directly or through contractual or other arrangements, utilize criteria or methods of administration (i) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap, (ii) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient's program or activity with respect to handicapped persons, or (iii) that perpetuate the discrimination of another recipient if both recipients are subject to common administrative

2

SpecialEdConnection® Case Report

control or are agencies of the same State.

The Section 504 implementing regulation at 34 C.F.R. § 104.33(a) states that a recipient that operates a public elementary or secondary education program or activity shall provide a FAPE to each qualified disabled person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's disability. The Section 504 implementing regulation at 34 C.F.R. § 104.33(b)(1) defines an appropriate education as regular or special education and related aids and services that: (i) are designed to meet individual educational needs of individuals with a disability as adequately as the needs of nondisabled persons are met; and (ii) are based upon adherence to procedures that satisfy the requirements of 34 C.F.R. §§ 104.34 (educational setting), 104.35 (evaluation and placement), and 104.36 (procedural safeguards).

Implementation of an individualized education program (IEP) in accordance with the Individuals with Disabilities Education Act (IDEA) is one means of meeting this standard. 34 C.F.R. § 104.33(b)(2).

The Section 504 implementing regulation at 34 C.F.R. § 104.35(a) states that a recipient shall conduct an evaluation of any person who, because of disability, needs or is believed to need special education or related services before taking any action with respect to the initial placement of the person in regular or special education and any subsequent significant change in placement. OCR interprets Section 504 to require, when a child's doctor or parent has provided information indicating that a child is '"regarded" as having a disability, recipients to determine whether there is a "reason to believe" that the child, because of an actual disability, may need special education or related services, and thus would need to be evaluated. The opinion of the doctor or parent triggers the recipient's duty to evaluate the student and is a piece of information to be considered in that decision making process.

Although the Section 504 regulation does not contain a specific requirement regarding the timeliness of an evaluation, a recipient should conduct an evaluation within a reasonable period of time after

Copyright © 2014 LRP Publications

it has reason to suspect that a student, because of disability, may need special education or related services. OCR may consider state law when determining whether a district has conducted a timely evaluation of a student.

The regulation implementing Title II is interpreted consistent with the regulation implementing Section 504. OCR interprets the regulation implementing Title II to require school districts to provide a FAPE to qualified individuals with a disability to the same extent required by the regulation implementing Section 504.

Background In July 2008, Student 1 was accepted for reassignment from his home school to the School for his Kindergarten year, during the 2008-2009 school year. Due to not meeting the promotion criteria, he was retained and repeated Kindergarten during the 2009-2010 school year. During the 2008-2009 and 2009-2010 school years, Student 1 accumulated excessive absences: 27 days and 26 days, respectively. For the 2009-2010 school year, the Students' mother signed a Broward Truancy Intervention Program (BTIP) agreement acknowledging understanding of the program and her duty to contact the school with regards to absences.

At the end of the 2010-2011 school year, Student 1 was absent 40 days. At the end of the 2011-2012 school year, Student 1 was absent 32 days.

Student 2 was granted reassignment from her home school to the School for her Kindergarten year, during the 2011-2012 school year. At the end of the 2011-2012 school year, Student 2 was absent 31 days.

On May 29, 2012, the School's Principal sent the District's South Area Director a memo requesting the Students' reassignments be rescinded due to their failure to comply with the Code of Student Conduct by accruing excessive absences. The South Area Director sent the Mother a letter, on June 18, 2012, stating that the Students' reassignments had been rescinded for their poor attendance.

Neither Student was evaluated or identified as a

3

SpecialEdConnection® Case Report

student with a disability while attending the School.

Evaluations of both students were underway but had not been completed as of December 19, 2012.

Factual Findings Issue 1 -- Whether the District discriminated against the Students when it failed to timely evaluate the Students, once they were notified in April 2012 of their bipolar disorder, in noncompliance with Section 504 and its implementing regulation at 34 C.F.R. § 104.35(a), and Title II and its implementing regulation at 28 C.F.R. § 35.130(a).

Documentation in both Students' academic files revealed that both Students struggled academically while at the School.

For Student 1, during the 2008-09 school year, two conference forms described how basic Kindergarten skills were too difficult for him and that there was a chance that he would be retained. His end of the year progress report reflected 27 absences and Student 1's retention in Kindergarten. During the 2010-2011 school year. Student 1's teacher created three conference forms that described her concerns over his attendance and problems in math and reading. On November 11, 2011, the School informed the mother that Student 1 had a Progress Monitoring Plan developed for him in the areas of reading and math because he was below grade level. In the School's Student Support Intervention records for Student 1, from 2008 through 2012, the School's guidance counselor had 32 consultations with either the mother or Student 1's teacher.

On May 24, 2012, Student 1's teacher completed a Teacher Questionnaire requested by the Florida Department of Health's Division of Disability Determinations. The teacher noted that Student 1 had medication prescribed to him and that he had 30 absences during the 2011-2012 school year, though not all absences were for documented illnesses.

For Student 2, Student Support Intervention records reflect that during the 2011-2012 school year, the guidance counselor had 31 consultations with either the mother or Student 2's teacher. A February

Copyright © 2014 LRP Publications

15, 2012 conference note from the teacher stated that Student 2's frequent absences cause gaps in her learning and makes it difficult to stay on grade level.

On May 23, 2012, Student 2's teacher also completed a Teacher Questionnaire requested by the Florida Department of Health. Her teacher noted that she knew the Student had been prescribed medicine and that Student 2 frequently missed school due to illness, but was not sure if the absences were due to the Student being sick.

With regards to the excessive absences, on April 26, 2012, the Guidance Counselor sent out a note that as of April 23, 2012, the Students "MUST provide a doctor's note for any future absences to be excused."

On May 16, 2012, the Guidance Counselor created another agreement requiring the Mother to continue to provide doctor's notes for all future absences. The memo mentioned how the mother provided doctors' notes for all unexcused absences. OCR also reviewed documentation from the Students' doctors excusing them for appointments or unspecific medical reasons on March, 5, 6, 8, 2012, April 2 & 17, 2012, May 1-2, 2012, May 7-10, 2012, May 15, 17-18, 2012.

When asked about the numerous consultations for both Students, the Guidance Counselor stated that she and the mother often talked about parenting skills, the attendance problems, and generally about the Students' health, including possible disabilities. The mother added that she discussed how their health concerns and medications caused tiredness and nausea, which impacted their ability to attend school.

After the 2011 holidays, the mother began discussing the Students' possible disabilities, but the Guidance Counselor stated that she was consulting with the teachers and no one saw any academic, behavioral, or social problems. The Guidance Counselor stated that in April 2012 the mother requested that the teachers fill out a form in connection to their pursuit of private disability evaluations because the Students were being evaluated for bipolar disorder. When OCR asked why the School did not start their own evaluations upon receiving this news, the Guidance Counselor stated

4

SpecialEdConnectionÂŽ Case Report

that they frequently monitored the Students and discussed amongst themselves whether or not they exhibited behavioral or emotional problems which impacted learning. The teachers did not report any academic, behavioral or social problems to her. The only problem was the Students' attendance.

The mother informed OCR that she personally gave a copy of the Students' April 17, 2012 psychiatric evaluations from New Direction Institute to the Guidance Counselor, which clearly showed the diagnoses of bipolar disorder for both Students. The mother also provided a faxed update of the evaluations on June 6, 2012. School officials stated that they never received the evaluations in April 2012 and only received the copy in June 2012. Also provided in June 2012 was the mother's consent for District evaluations, dated June 25, 2012, and doctors' notes recommending that the Students remain at the School.

OCR asked if the School requires parents to provide a private evaluation before they start their own evaluation process. Initially, the Guidance Counselor stated that they do request a copy of the private evaluation so they can see if the two evaluations match up. But upon clarification, the Guidance Counselor stated that the District does not require private evaluations and child study meetings are begun once any academic, behavioral, or emotional problems become present. The Principal also emphasized that private evaluations are not required before they will act. However, they do need to see something interfering with learning, otherwise, they cannot establish a specific intervention.

When asked why they did not consider the excessive absences to be an indicator of a disability or other health concern, the Principal explained that the Students' residence was far away and inconvenient to the school. Combined with a period of about a month when the mother told them that they did not have access to transportation and had to wake up early to walk to school. School officials believed the distance was a factor in their attendance problems. School officials considered their attendance problems to be a

Copyright Š 2014 LRP Publications

separate issue, not related to disability, but a truancy problem. Once the Guidance Counselor had meetings and signed attendance agreements with the mother, the Students began to present documentation excusing their absences. The Principal stated that while doctor's notes would excuse absences and there would not be a truancy problem, there was still a reassignment policy problem. Because reassignment students have to sign a Code of Conduct regarding attendance, the Students' excessive absences violated the policy, which led to the rescission of their reassignment.

While not alleged in this complaint, OCR found that the District appears to have failed to evaluate Student 1 as early as April 2011. In data provided by both the District and the Complainant, there is an April 1, 2011 memo from the mother to Student 1's teacher. The memo tells the teacher that a doctor is trying to evaluate Student 1 for bipolar disorder and her completion of a questionnaire (Conners Form) is necessary. The mother concludes the memo by thanking the teacher for her cooperation. When asked about the memo, the teacher and Principal stated that they had never seen the memo.

A notation on the District's data and the Principal stated that the note had not been presented in 2011, but it had come into their possession in summer 2012 when they received copies of documents from the Complainant. However, during the teacher's interview, while she could not remember the note, she did remember filling out the ''Conners Form'' (Conners Rating Scales-Revised) because she consulted the Principal about where she should send the form. She did not think she should send the form back to the mother; the Principal instructed her to fax the form directly to the doctor.

When interviewed, the mother could not remember whether she handed the note and evaluation to the teacher or whether it was given to the teacher by the Student. Nonetheless, the Complainant provided OCR with a copy of the Conners Form that had been filled out by Student 1's teacher on April 5, 2011.

5

SpecialEdConnectionÂŽ Case Report

Conclusion OCR reviewed the evidence to determine whether the District failed or unreasonably delayed in evaluating either of the Students after having reason to suspect that the Students may need special education or related aids and services because of a disability. In light of the evidence noted above, OCR finds by a preponderance of the evidence that the District should have begun evaluations for Student 1 in April 2011, and in April 2012 for Student 2.

Both students had excessive absences and in April 2011 District staff received information that Student 1 was being privately evaluated for bipolar disorder. While School administrators contend that they saw the excessive absences as unrelated to a disability or health concern, the Mother's transportation difficulties were generally isolated to a month-long period when she did not have access to a car. Additionally, the Guidance Counselor was told in April 2012 that both Students were being privately evaluated for bipolar disorder. Even though the teachers may not have reported any perceived academic, behavioral, or emotional problems impacting the major life activity of learning, OCR found conference notes that contradicted their position, where the excessive absences were described to have an impact on the Students' progress and learning. Conference notes for Student 1 describe concerns over attendance, problems in math and reading, and a Progress Monitoring Plan being developed in reading and math because he was below grade level. For Student 2, her teacher noted that her frequent absences cause gaps in learning and makes it difficult to stay on grade level. Further, the conference notes include references to "classroom safety" and "classroom respect", and according to the Counselor, her discussions with the Mother included discussions about the Students' behavior and demeanor.

Moreover, the major life activities which should be considered when determining whether a student may have a disability are not limited to learning.

Section 504 and the expanded list from the ADAAA

Copyright Š 2014 LRP Publications

defines major life activities to include functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating. While School administrators told OCR that they did not perceive academic, behavioral, or emotional problems, internal notes and conferences point to the contrary. Furthermore, the number of absences combined with discussions and doctors' notes were indicators that the Students' health concerns and possible disabilities impacted the major life activity of learning and may have impacted other major life activities.

Specifically, with regards to Student 1, OCR finds that the District was on notice of a possible bipolar disorder diagnosis as early as April 1, 2011.

While the District denies notice of the note to Student 1's teacher until summer 2012, the teacher recalled completing the Conners' Form that accompanied the note and returning it to the doctor, which the Complainant confirmed by providing a copy to OCR. Additionally, this same teacher created three conference forms that described her concerns over Student 1's attendance and problems in math and reading.

Finally, in addition to the District's failure to take action once provided with documentation and notice of excess absences, OCR notes that the District failed to evaluate the Students within a reasonable period of time, i.e., the IDEA initial evaluation standard of 60-days, once they received consent for the evaluation process on June 25, 2012. As of December 2012, the District still had not concluded the Students' evaluations.

Based on the above, OCR concludes that the District failed to evaluate the Students in a timely manner, in noncompliance with Section 504 and Title II, as alleged. To resolve this compliance issue, the District voluntarily entered into the enclosed Resolution Agreement (Agreement).

Issue 2 -- Whether the District discriminated against the Students by rescinding their reassignment

6

SpecialEdConnection® Case Report

to the School, due to absences, which are manifestations of their disability, in noncompliance with Section 504 and its implementing regulation at 34 C.F.R. § 104.4(a), and Title II and its implementing regulation at 28 C.F.R. § 35.130(a).

As noted above in Issue #1, OCR found sufficient evidence that the District failed to timely evaluate the Students and that the Students' excessive absences could be a manifestation of their disablity.

While the Principal stated that School officials did not consider the absences to be connected with a disability, the mother stated to OCR that she had notified the District that the absences were connected to their disability, i.e., feeling ill as a symptom of their disability or illness from the effects of prescribed medication.

During OCR's interview of the District's Director of School Performance & Accountability, when asked whether the impact of a disability could be a mitigating factor in permitting them to remain a reassignment student, even with excessive absences, she stated that it would not. Disabilities are not taken into consideration. The Code of Student Conduct requires attendance and if a reassignment student fails to abide by the policy, their reassignment could be removed. The Principal informed OCR that excused absences, such as those related to illness or doctor's appointments, make a difference with regards to truancy concerns. However, excessive absences, even if excused, are detrimental to a student's standing in the reassignment program. With regards to the Students, because there was a pattern of excessive absences, the reassignment rescission was warranted.

In order to provide FAPE, a 504 or IEP team should have conducted an evaluation, which included a determination of whether either Student had an individualized need for a modification of policies related to absences because of a disability. In addition to the FAPE-related obligations set forth at 34 C.F.R. §§ 104.33, 104.35, and 104.36, if either Student is identified as a student with a disability, modification of absence-related policies may be necessary to ensure that the District's program is as effective for

Copyright © 2014 LRP Publications

that Student as it is for students without disabilities or to ensure that the objectives of the District's program are not impaired. In addition to the FAPE-related obligation, the District should have considered, independent of whether either Student is determined to be a student with a disability, even if he/she does not need related aids and services to receive FAPE, whether modification of the absence policies would have been necessary in order to ensure that an aid, benefit, service, or method of administration is not discriminatory.

Based on the above, OCR found sufficient evidence that the District rescinded the Students' reassignment to the School due to absences which may be manifestations of their disability, in noncompliance with Section 504 and Title II, as alleged.

This concludes OCR's consideration of this complaint, which we are closing effective the date of this letter. OCR is committed to a high quality resolution of every case. Under the Freedom of Information Act, it may be necessary to release this document and related correspondence and records upon request. If we receive such a request, we will seek to protect to the extent provided by law, personally identifiable information, which, if released, could reasonably be expected to constitute an unwarranted invasion of personal privacy.

OCR has informed the District that intimidation or retaliation against complainants by recipients of Federal financial assistance is prohibited. No recipient may intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by the laws OCR enforces, or because one has made a complaint, or participated in any manner in an investigation in connection with a complaint.

This letter sets forth OCR's determination in an individual OCR case. This letter is not a formal statement of OCR policy and should not be relied upon, cited, or construed as such. OCR's formal policy statements are approved by a duly authorized OCR official and made available to the public. The

7

SpecialEdConnection® Case Report

complainant may have the right to file a private suit in federal court whether or not OCR finds a violation.

Thank you for the courtesy and cooperation that you and your staff extended to the staff of OCR. OCR is committed to the high quality resolution of every case. If you have any questions or concerns regarding OCR's determination, please contact Scott Sausser, Compliance Team Leader, at (404) 974-9354.

Resolution Agreement Broward County School District The U.S. Department of Education, Office for Civil Rights (OCR), initiated the above-referenced investigation of the Broward County School District (District), pursuant to Section 504 of the Rehabilitation Act of 1973 (Section 504), 29 U.S.C. § 794, and its implementing regulation, 34 C.F.R. Part 104, which prohibit discrimination on the basis of disability by recipients of Federal financial assistance; and Title II of the Americans with Disabilities Act of 1990 (Title II), 42 U.S.C. § 12131, and its implementing regulation, 28 C.F.R. Part 35, which prohibit discrimination on the basis of disability by public entities. The District agreed to resolve the issues of this investigation pursuant to Section 303(b) of OCR's Case Processing Manual (CPM).

Accordingly, to ensure compliance with Section 504 and Title II and their implementing regulations and to resolve the issues of this investigation, the District voluntarily agrees to take the following actions.

Individualized Education Program Meeting -- Completion of Eligibility Evaluation and Evaluation for Compensatory Services 1. By March 1, 2013, for each Student the District will convene a Section 504 team meeting or individual education program (IEP) team meeting with the Students' mother and other persons knowledgeable about each Student, to discuss the meaning of the evaluation data and the placement options, and complete the evaluation of each Student.

If the Student is determined to be a student with a disability, the team will also determine whether the

Copyright © 2014 LRP Publications

Student is in need of compensatory education services for the following time periods: for Student 3, for the period between April 2011 until the date that the District completes the evaluation and for Student 2, for the period from April 2012 until the date that the District completes the evaluation. The evaluations must be conducted in accordance with the Section 504 implementing regulation at 34 C.F.R. § 104.35 and procedural safeguards will be provided to the Mother.

If compensatory services are deemed necessary, the meeting minutes and 504 plan or IEP will include the number of minutes and type of compensatory services to be provided, and when the services will start and conclude. The District will provide such services to the Student during the spring of 2013 and continuing into the summer of 2013 and the 2013-2014 school year, as appropriate.

REPORTING REQUIREMENT: By May 1, 2013, the District will submit to OCR: notification of the date that the meetings for the Students were conducted, minutes of the meetings, copies of the 504 plans or IEPs developed at the meetings, and evidence that procedural safeguards were provided to the Mother. By July 1, 2013, the District will submit documentation demonstrating that the compensatory services were provided and the date(s) that the services were provided. If compensatory services need to continue through past July 1, 2013, a schedule of services shall be provided to OCR. If compensatory services are not deemed necessary, the District will provide OCR with the minutes from the meeting where that decision was made.

Training Regarding Section 504/Title II 2. By May 1, 2013, the District will initiate annual training of the District's Section 504 coordinator(s) and all Cooper City Elementary School administrators, Guidance Counselors, and teachers, regarding Section 504 and Title II. The training must address, at a minimum: - Section 504's and Title II's prohibition against disability discrimination, including the District's obligation to provide students with disabilities a free

8

SpecialEdConnection® Case Report

appropriate public education; - the definitions of physical and mental impairments and major life activities, as expanded through the ADA Amendments Act, and the requirement that the determination of whether an impairment substantially limits an individual's major life activity shall be made without regard to the ameliorative effects of mitigating measures other than ordinary eyeglasses or contact lenses; - what factors make a student eligible for services under Section 504; - the Section 504 obligation to complete the evaluation and placement of District students who need, or are believed to need, special education or related services in a timely manner; - the Section 504 requirements concerning procedural safeguards; - the Section 504 and Title II standards concerning modification of policies in order to provide aids, benefits and services that are as effective for students with disabilities as for others and ensure that such policies do not discriminate against students with disabilities or defeat or impair accomplishment of program objectives with respect to such students.

REPORTING REQUIREMENT: By May 15, 2013, the District will show it has provided the initial training session required of this Agreement. The District does not have to provide documentation of subsequent training sessions unless OCR requests that documentation. The documentation must include: - the date, time, and location of the training; - the topics addressed at the training; - copies of handouts distributed to the training participants; - the name(s) and title(s) of the individual(s) who conducted the training; and - one or more sign-in sheets with the name and title of each employee who participated in the training.

3. By May 1, 2013, if the District has determined

Copyright © 2014 LRP Publications

that the Students were qualified students with a disability after the completion of Item #1, above, and the IEP team determines that a modification should have been made to the attendance policy for Cooper City Elementary School, the District will extend an offer to the Mother to elect to return the Students back to Cooper City Elementary School or to maintain their current placement, at Summerset Academy in Wilton Manors.

REPORTING REQUIREMENT: By June 1, 2013 if the District has determined that the Students were qualified students with a disability as contemplated in Item #1, above, and the IEP team determines that a modification should have made to the attendance policy for Cooper City Elementary School, the District will submit to OCR documentation showing that an offer to the mother to place the Students either at Cooper City Elementary School or Summerset Academy in Wilton Manors has been extended.

The District understands that by signing this Agreement, it agrees to provide data and other information in a timely manner in accordance with the reporting requirements of this agreement. Further, the District understands that during the monitoring of this Agreement, if necessary, OCR may visit the District, interview staff and students, and request such additional reports or data as are necessary for OCR to determine whether the District has fulfilled the terms of this Agreement and is in compliance with the Section 504 and Title II implementing regulation at 34 C.F.R. § 104.4(a) and 104.35(a), and Title II and its implementing regulation at 28 C.F.R. § 35.130(a).

The District understands that OCR will not close the monitoring of this Agreement until OCR determines that the District has fulfilled the terms of this Agreement and is in compliance with the regulation implementing Section 504 at 34 C.F.R. § 104.4(a) and 104.35(a), and Title II and its implementing regulation at 28 C.F.R. § 35.130(a), which were at issue in this case.

The District understands and acknowledges that OCR may initiate administrative enforcement or

9

SpecialEdConnection® Case Report

judicial proceedings to enforce the specific terms and obligations of this Agreement. Before initiating administrative enforcement (34 C.F.R. §§ 100.9, 100.10), or judicial proceedings to enforce this Agreement, OCR shall give the District written notice of the alleged breach and a minimum of sixty (60) calendar days to cure the alleged breach.

Regulations Cited 34 CFR 104.35(a) 28 CFR 35.130(a) 34 CFR 104.4(a) 34 CFR 104.3(j)(1)(i) 34 CFR 104.3(j)(1)(iii) 34 CFR 104.3(j)(2)(i) 34 CFR 104.3(j)(2)(ii) 34 CFR 104.4(b)(1)(iii) 34 CFR 104.4(b)(4) 34 CFR 104.33(a) 34 CFR 104.33(b)(1) 34 CFR 104.34 34 CFR 104.33(b)(2) 34 CFR 104.35(a)

Copyright © 2014 LRP Publications

10