Section 504 of the Rehabilitation Act

The Ins and Outs of Section 504 Karen Haase Harding & Shultz ( (402) ) 434-3000 khaase@hsdlegal.com

H & S School Law @KarenHaase

Primary Differences B t Between S Section ti 504 and IDEA  General Education Students  Section 504 Students  IDEA Eligible Students

Primary Differences  504 defines disability more broadly  IDEA guarantees student “FAPE”  504 designed to eliminate barriers  IDEA designed g to p provide specialized programs and remediation

Primary Differences  504 = easier to qualify  IDEA = more services and other educational entitlements

Similarities  School districts must evaluate and determine eligibility  Both mayy require q ((if student needs)) - transportation, - accommodation/modification - related services

 Both o require equ e students s ude s be educated in the least restrictive environment

When is a district required to make a 504 referral?  When district believes that the student has a physical or mental impairment that substantially limits one or more major life activities AND  Student is in need either regular ed with supplementary services or special ed. and related services Letter to Mentink, 19 IDELR 1127 (OCR 1993)

“Disability� as Defined by Section 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.

504 Protects Episodic Impairments  Asthma  Chron Chron’ss Disease  IBS  Any other disease that can “come come and go” or has good and bad days

Mitigating Measures Don’t Count 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.

Examples of Mitigating Measures  Medication  Medical supplies, equipment, appliances  Low-vision L i i devices d i (NOT ordinary di eyeglasses l or contacts)  Prosthetics  Hearing aids/cochlear implants  Learned behavioral or adaptive neurological modifications difi ti  Reasonable accommodations or other auxiliary aids or services

What about Temporary Impairments?  A “transitory impairment” is defined as an impairment with an actual or expected dd duration i off six i months h or lless.  “Any impairment the duration of which i is i less than six i months would not constitute a disability.” James A. Garfield (OH) Local School Dist., Dist 52 IDELR 142 (OCR Feb. 19, 2009).

Is it possible for a student to be 504 in one district and not eligible li ibl in i another? th ?  Yes  Each district is responsible p for determining for itself what the phrase “substantially substantially limits” limits means Letter to McKethan, 23 IDELR 504 (OCR 1994)

What about a transfer student with a 504 plan?  Safe course: replicate student’s services received in the old district while staff evaluates student  After Aft a few f weeks, k conduct d t 504 reevaluation ─Change plan as necessary ─Remember, student may not even qualify here as “substantially limited”

Can we just provide modifications without creating a 504 plan?  No  Remember: disability education law is often more about PROCESS not RESULTS

Can a student’s absences trigger a 504 referral and evaluation?  Yes p absences are due  If districts suspects to a disability, the district should refer and evaluate  Note that just because a student has a disability does not mean all the absences are disability-related

Do kids who are not meeting their potential get 504 plans?  A child’s failure to perform to his/her potential is not sufficient reason for referral and evaluation  Key is education benefit JJefferson ff P Parish i h (LA) P Public bli Schools, S h l 16 EHLR 755 (COR 1990) Hendrik Hudson District Bd. of Ed. v. Rowley, 458 U.S. 176, 207 n. 28 (1982)

Are passing grades enough proof of education benefit?  Not always y  Social promotion is not enough Duneland D l d School S h lC Corp. (IN) (IN), 31 IDELR 222 (S (Special i l Education Hearing Officer 2000)

Process for Eligibility Referral for evaluation (can be parent or educator) Procedural Safeguards Meetingg with 504 team Parental consent required to conduct d t an evaluation. l ti Evaluation Conference

Accommodations vs.

Modifications

Accommodations • Basis for Section 504 • Do D nott change h what h t iis b being i measured Modifications • Basis for IDEA • Do change what is being measured

Accommodation Examples Diabetic • • • •

Bathroom Pass Water, Snacks Allowed Check blood sugar when needed p to Nurse Trips

ADD • E Extended tended Time & Separate Setting on Tests • Preferential P f ti l seating ti

Do parents have a right to be on the th 504 C Committee? itt ?  Regulations do not require physical participation on the committee  District is required to solicit parental input and to communicate with parent  Whether to invite parents or not is a decision to be made by the district. Once made, it must be consistently implemented Edmonds (OK) Public School, 31 IDELR 242 (OPCR 1999)

Do students with IEPs also need 504 plans?  No.  504 prevents t IDEA student t d t ffrom beingg discriminated against, g , but only y IDEA students are entitled to FAPE.  Developing D l i and d IEP satisfies ti fi g under 504 obligations Letter to McKethan, 25 IDELR 295, 296 (OCR 1996)

Do students dismissed from SpEd always get 504 plans?  No. Student eligibility for services depends on whether he/she has a current physical p y or mental impairment p which substantially limits one or more major life activities  But student is entitled to nondiscrimination protection because has a history of disability.

Can a Parent Demand a 504 Plan instead of an IEP?  No  When a child qualifies under IDEA district satisfies the IDEA, 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)

Re evaluation Re-evaluation  “Periodically” e od ca y re-evaluate; e eva uate; OR, O , before be o e any significant change in placement  To satisfy “periodic” periodic requirement, requirement reevaluate no less than every three years, more often if other circumstances indicate (i.e., worsening of condition)  Significant Si ifi t change h includes i l d exclusion l i for more than ten school days for di i li disciplinary reasons.

Discipline of Section 504 Students  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

504 Disciplinary Process  Manifestation Determination Review meeting is required  Parents and relevant staff members attend  If related, student may not be recommended f expulsion, for li but b alternative l i placement l may be considered  If unrelated, student may be recommended for expulsion without IAEP services

Enforcement  No state agency charged with monitoring or enforcing compliance with Section 504  U.S. Department of Education’s Office for Civil Rights (OCR) is responsible p for ensuring g school compliance with Section 504.  OCR’s Region VII (Kansas City City, MO) serves NE

The Ins and Outs of Section 504 Karen Haase Harding & Shultz ( (402) ) 434-3000 khaase@hsdlegal.com

H & S School Law @KarenHaase