ESU 16's 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  Eligibility Step-by-Step  Drafting Plans  Referral Process  Procedural Safeguards  Discipline  Extracurriculars

504 Overview

Similarities  School districts must evaluate and determine eligibility  Both require • • • •

transportation, accommodation/modification related services manifestation determination

 LRE requirement

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

504 • Disability substantially limits one or more major life activities • LEA sets qualification standards • Accommodations do not modify curriculum or change standards • Parents may be on team, MUST have input • Plan review periodically

IDEA • disability interferes with ability to learn • Rule 51 sets qualification standards • Accommodations may modify curriculum, instruction, materials and assessments • Parents MUST be on team • Plan review annually

When is school 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.”

Disability 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  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

Transitory 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 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) • health care plan for diabetic students • 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 Help without creating a plan?  No!!  Remember: disability education law is about PROCESS not RESULTS  Temple (TX) ISD, (OCR 1996)

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)

So, Letâ&#x20AC;&#x2122;s Get Practical

Eligibility Step by Step: 1. Referral for evaluation 2. Procedural Safeguards 3. Written parental consent 4. Evaluation 5. Conference 6. Determination

When to refer a student  Parents report health condition  Parents request eval  Student failing to make progress  Staff refers student to SAT  Student returning to school after a serious injury  Student failed to verify for SpEd  Student habitually absent

Absences and Truancy

Absences and Truancy  Absenteeism alone can trigger 504  Laramie County (WY) Sch. Dist., 51 IDELR 169 (OCR 2008)

student ill most of school year placed on "homebound" status his parent requested a 504 plan. The district established a plan but did not evaluate under 504 • OCR: absences should have triggered 504 eval • OCR: creating a plan not enough • • • •

Other cases re 504 referral Chapel Hill-Carrboro (NC) Schs., (OCR 2006) • • • • • • •

Student too anxious to enter building. 504 coordinator met with the parent parent declined to release medical info. student suffered a second attack 6 mos later Calmed down after speaking w/ teacher. No other teacher aware of anxiety problems OCR: district reasonably believed student did not require services for anxiety

Other cases re 504 referral Cassopolis (MI) Pub. Schs., (OCR 2010) • • • •

3rd grader diagnosed with ADHD, but no 504 Never qualified for "Fun Fridays," Parent complained OCR: district had sufficient information about the student's difficulty and the parent's concern to trigger a referral

Other cases re 504 referral D.G. v. Somerset Hills Sch. Dist., (D.N.J. 2008) • Student had behavioral problems in school • Threatened suicide to staff • Mother told staff about depression and hospitalizations, and expressed concerns • Court: denied motion to dismiss the student's claim; determined that the student met the pleading requirements for a Section 504 claim

Eligibility Step by Step: 1. Referral for evaluation 2. Procedural Safeguards 3. Written parental consent 4. Evaluation 5. Conference 6. Determination

Procedural Safeguards

Required 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 Safeguards  Schools are required to have a system of procedural safeguards regarding identification, evaluation and placement  System must include • Notice • Opportunity to examine records • Impartial hearing • Review procedure

Required 504 Notices  General Nondiscrimination Notice  Child Find Notice  Notices to Parents: • When 504 conferences are being held • Eval. and reeval. decisions • Eval results and eligibility decisions • Program decisions • Changes in placement or termination • Procedural Safeguards/Due Process

Required 504 Notices

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

Notice Opportunity to examine records Impartial hearing Review procedure

Examine Records

Eligibility Step by Step: 1. Referral for evaluation 2. Procedural Safeguards 3. Written parental consent 4. Evaluation 5. Conference 6. Determination

Parental Consent  Parents must provide “informed consent”  Parent Refusal to Consent • To initial eval: district may, but is not required to, initiate due process to conduct the evaluation in the absence of consent. Dyersburg (TN) City Sch. Dist., (OCR 1988). • To Reeval: In Letter to Durheim, (OCR 1997)

Cases re Parental Consent  Ipswich (MA) Pub. Schs., (OCR 2006) • Parents of two students with undisclosed disabilities repeatedly refused to consent to a Section 504 evaluation • Parent later filed complaint with OCR • OCR: District did not discriminate against the students by failing to assess their need for accommodations

Cases re Parental Consent  Durkee ex rel. M.D. v. Livonia Cent. Sch. Dist., (W.D.N.Y. 2007) • Parents told school they would not seek or accept special education services • District sued seeking to compel the student to undergo an eligibility evaluation • Court: judgment for the parents and enjoined the district from evaluating the child or seeking permission to conduct an assessment

Cases re Parental Consent  San Jose Unified Sch. Dist. (OCR 2006) • School asked to eval student; parent refused • Student made sexually suggestive phone call to a male teacher • School proposed discipline • Parent filed OCR compliant • OCR district had no obligation to conduct manifestation determination

Eligibility Step by Step: 1. Referral for evaluation 2. Procedural Safeguards 3. Written parental consent 4. Evaluation 5. Conference 6. Determination

Evaluation  No timeline • “within a reasonable period of time”  Placement Team • membership not prescribed • Individuals who are knowledgeable about the student, the meaning of the evaluation data, and the placement options Requirements for evaluation specified in the Section 504 regulatory provision at 34 C.F.R. 104.35 http://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr104.html#S35

Evaluation Components • Aptitude and Achievement Test Scores • Test/evaluation material tailored to evaluate the specific area of educational need • Grades • Teacher observations & recommendations • Physician’s medical diagnosis • Physical condition • Social and cultural background • Adaptive behavior • Discipline records • Attendance

Medical diagnosis issues  Diagnosis alone not sufficient  Must consider – along with info from other sources  May not require parents to provide medical records  If school determined medical assessment necessary, district must ensure child receives assessment

Eligibility Step by Step: 1. Referral for evaluation 2. Procedural Safeguards 3. Written parental consent 4. Evaluation 5. Conference 6. Determination

504 Conference  Who participates?

• No list – not IEP • Factually dependent • Parents not required to participate – but MUST have input

 Discuss evaluation information  Determine eligibility for 504  (Consider SpEd)  Explain rights

Can a Parent Demand a 504 Instead of an IEP?

Can a Parent Demand a 504 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)

Eligibility Step by Step: 1. Referral for evaluation 2. Procedural Safeguards 3. Written parental consent 4. Evaluation 5. Conference 6. Determination

Meet Freddy Flyspan

Is Freddy Eligible?  Freddy referred for Section 504 consideration by his mother, Frances Flyspan.  Frances reports that Freddy suffers from ADHD.  Frances reports he is unable to focus on focus on a homework for for more than 4 minutes.

Doctor’s Note  Freddy Suffers from ADHD  Freddy has classic ADHD symptoms  Mother Reports Prior ADHD diagnosis

More on Freddy       

Diagnosis of ADHD from MD Currently on meds Good grades overall Weak on homework and long projects No significant discipline reports Performs better in small groups, one-on-one President of video game club

Kids Not Meeting Potential  A child’s failure to perform to his/her potential is not sufficient reason for referral and evaluation  Key is education benefit  Jefferson Parish (LA) Public Schools, (OCR 1990)

So, Does Freddy Qualify?

If Freddy is not eligible. . . ď&#x201A;§ A written notice of the finding that the student is not eligible must be provided to parents, along with a notice of their right to appeal this determination. ď&#x201A;§ DO NOT USE IDEA FORMS!

If Eligible plan must  Be individually tailored to student needs with appropriate modifications and accommodations  Be detailed and specific  Plan that listed accommodations “as needed” deemed “sufficiently ambiguous to raise issue of fact for trial.” SLM v. Dieringer School Dist. 343 (W.D. Wash. 2008)

Drafting 504 Plans  Have knowledgeable team members  Ensure that the whole group makes decisions about the 504 plan (Not single member like a parent)  Individualize plans  Be Detailed  Keep it Simple

Drafting 504 Plans Issues to Discuss  Organization  Environment  Lesson presentation  Assignments  Test-taking  Medical accommodations.  Behavioral issues

Drafting 504 Plans Health Issues      

Medical needs Psychological needs related to health Physical Social Academics Transportation

Accommodations v. Modifications

• • • • • •

Accommodations

Modifications

Preferential seating Extended time Use of peer notes Use of calculator Books on tape Tests given in alternative location

• Requiring student to learn less material • Revising content • Shortening homework/tests • Alternate assessments

Cases re 504 Plans  Laramie County (WY) School District, (OCR 2010) • development of a generic plan for a student fell short of agency standards

 Inglewood (CA) Unified Sch. Dist., (OCR 2008) • District violated Section 504 by failing to clearly describe the services provided to a student

Students Rejecting Accom.  In Lansing Central School District, 58 IDELR 291 (OCR 2012)  when a student refuse accom. • Document refusal (consider worksheet) • Ensure teachers understand accom. • Meet informally with student • Convene 504 team • Discuss different ways to provide the accommodation to the student

Freddy’s 504 Plan

Procedural Safeguards

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

Notice Opportunity to examine records Impartial hearing Review procedure

Required Safeguards  Schools are required to have a system of procedural safeguards regarding identification, evaluation and placement  System must • Notice • Opportunity to examine records • Impartial hearing • Review procedure

Impartial Hearing  No guidance in regs: check policies!  Cases • Ms. H. v. Montgomery County Bd. Of Ed., 56 IDELR 268 (M.D. Ala. 2011) • Houston (TX) Indep. Sch. Dist., 25 IDELR 163 (OCR 1996) • Letter to Anonymous, 18 ID1991) • Griffith (IN) Pub. Schs., 40 IDELR 105 (OCR 2003)

Impartial Hearing

Review Procedure  Must Have Internal Review/Appeal Procedure  No guidance in regs: check policies!  Cases • Pennsylvania Dep’t of Educ., (OCR 1993) • Massachusetts Dep’t of Special Educ., (OCR 1992)

 No administrative exhaustion

Review Procedure

Time for a Break?

504 & Student Discipline

504 & Student Discipline  Good News: drugs and alcohol are simple • No special 504 procedures for using or possessing drugs or alcohol at school • Student Discipline Act procedures still apply  All other offenses: Must follow “IDEA Light” process

IDEA Light????

IDEA Light????  OCR uses IDEA Discipline Rules in 504  First 10 days “free”  If changing placement; must conduct a manifestation determination • Is current placement appropriate? • Did disability cause or have a direct and substantial relationship to, the misconduct • Was misconduct direct result of an IEP implementation failure

IDEA Light????  If manifestation • Cannot discipline • Must consider whether plan needs to be change

 If not a manifestation • Can discipline like regular ed student • No IAEP

Freddy’s Back!  The principal breaks up a fight that Freddy is involved in  Principal also confiscates a knife from Freddy  Past practice • long term suspension for fight • expulsion for weapon

Freddyâ&#x20AC;&#x2122;s Manif. Det.

504 & Extracurriculars

504 & Extracurriculars • South Lyon (MI) Cmty Schs, 54 IDELR 204 (OCR 2009) • Marana (AZ) Unif Sch Dist, 53 IDELR 201 (2009) • Nashville (TN) Sch Dist, 53 IDELR 337 (OCR 2009)

504 & Noncurriculars • Raytown (MO) C-2 Sch Dist, 53 IDELR 239 (OCR 2009) • Shoreline (WA) Sch Dist No. 412 (24 IDELR 774 (OCR 1996) • Wilson County (TN) Sch Dist, 50 IDELR 230 (OCR 2008)

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

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