Cry “Havoc!”
and Let Slip the Dogs of 504
Presented by Daniel A. Osher
Topics
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Introduction – What is Section 504
What is at Stake
Child Find
Assessment
Eligibility
Services and Accommodations
Implementation
Other Issues (e.g., Athletics)
Anti-Discrimination
“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.”
(34 C.F.R. § 104.4)
Section 504
Thou shalt nots:
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Deny a qualified handicapped person the opportunity to participate
in or benefit from the aid, benefit, or services;
Afford a qualified handicapped person an opportunity to participate
in or benefit from the aid, benefit, or services that is not equal to
that afforded to others;
Provide a qualified handicapped person with an aid, benefit or
service not as effective as that provided to others;
Provide different or separate aid, benefit or service to handicapped
person unless necessary to provide effective aid, benefit, service
as effective as those provided to others.
(34 C.F.R. section 104.4(b).)
Section 504
What is at stake?
Dispute Resolution
• OCR complaints
• 504 due process hearings.
• Parents may file lawsuits in state
or federal courts (no duty to first
file an OCR complaint or request
an impartial hearing).
– If the student qualifies under both
Section 504 and IDEA, the student
must first pursue all available IDEA
remedies before suing.
Availability of Damages
Money damages are
available for a violation of
Section 504, even if a
remedy is also available
under the IDEA.
(Mark H. v. Hamamoto (9th Cir. 2010) 620 F.3d 1090.)
Availability of Damages
Damages are only available for “intentional
discrimination”
• “Discriminatory animus” or
• “Deliberate indifference”
– “knowledge that a harm to a federally protected
right is substantially likely, and a failure to act
upon that likelihood.”
(Mark H. v. Hamamoto (9th Cir. 2010) 620 F.3d 1090.)
Availability of Damages
Example
Five incidents of peer harassment did not
lead to liability for deliberate indifference,
because the District took action to address
the bullying.
(G.M. v. Dry Creek Joint Elementary School District (E.D. Cal. 2012) 112 LRP
45036.)
Damages
• We’re seeing increased claims
for 504 damages, often
alleging:
– Intentional violation of IDEA
– Harassment
– Physical abuse
Child Find
Child Find
• School districts must identify and serve every
qualified handicapped person residing within the
district’s jurisdictional boundaries.
• Cannot require parents to obtain diagnosis.
Child Find
Make sure school site staff is
trained in child-find obligations!!
Assessment
Assessment
• When should you refer a student for an
assessment?
• Must promptly assess when there is a reason to
suspect the student might qualify for Section 504.
– Must a district always assess upon parent
request?
Assessment and RTI
A district may delay assessment while trying
RTI if the district informs the parents:
– Implementing RTI will delay making 504
eligibility determination;
– Expected length of RTI trial period; and
– Conclusions reached at end of RTI period.
(Acalanes Union High Sch. Dist. (OCR 2009) 109 LRP 32284.)
Assessment and
Student Study Teams
• Student study teams and RTI can be a
useful early intervention, but are not a
substitute for a 504 assessment and plan if
student qualifies.
(Beaumont Unified Sch. Dist. (OCR 2009) 109
LRP 24517.)
Assessment
• Assessment must address all
suspected areas of disability.
(East Side Union High Sch. Dist. (OCR 2009) 109 LRP 32280.)
Assessment
What is involved in a Section 504
assessment?
– It must provide enough information to
determine whether a student qualifies, and
how to serve the student.
– It must address all areas of suspected
disability.
Assessment
• Information to consider as part of
assessment:
– Input from teachers, parents, and
doctor
– Aptitude and achievement tests
– Social and cultural background
– Adaptive behavior
– Formal assessment results
(U.S. Department of Education, Frequently Asked
Questions About Section 504 and the education of
students with Disabilities.)
Assessment
• Medical diagnosis itself is not
sufficient to constitute an
evaluation or to qualify a
student.
• Why not?
Eligibility
Eligibility
“It is the intent of Congress that the primary
object of attention . . . Should be whether
entities covered under the ADA have
complied with their obligations, and... The
question of whether an individual’s
impairment is a disability under the ADA
should not demand extensive analysis.”
(122 Stat. 3553 § (2)(b)(5).)
Eligibility
“Disability” Should Be Construed
Broadly
The amended ADA states:
“The definition of disability shall be construed
in favor of broad coverage of individuals . . .
To the maximum extent permitted by the
terms of this Act.”
(42 U.S.C. 12102(4)(B).)
Eligibility
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A Student qualifies as handicapped under Section 504 if
he/she:
1. Has a physical or mental impairment that
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substantially limits one or more major life activities;
2. Has a record of such impairment; or
3. Is regarded as having such impairment.
A student who qualifies under (1) is entitled to FAPE.
A student who qualifies only under (2) or (3) is not entitled to
FAPE, but districts may not discriminate against such
students on the basis of the impairment.
(34 C.F.R. section 104.3(j)(1); St. Clair County (MI) Regional
Educational Service Agency (OCR (MI) 2009) 109 LRP 69400.)
Eligibility
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To be entitled to a 504 FAPE, a student must
meet all of these criteria:
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Physical or mental impairment that
Substantially limits
One or more major life activities
Eligibility: Physical or Mental
Impairment Defined
• Physical or mental impairment means any physiological
disorder or condition, cosmetic disfigurement, or anatomical
loss affecting one or more of the following body systems:
neurological; musculoskeletal; special senses organs;
respiratory (including speech organs); cardiovascular;
reproductive, digestive, genito-urinary; hemic and lymphatic
system; skin and endocrine; or
• Any mental or psychological disorder such as mental
retardation, organic brain syndrome, emotional or mental
illness, and specific learning disabilities.
(34 C.F.R. section 104.3(j)(2)(i).)
Eligibility: Impairment is Temporary
or in Remission
• An impairment that is episodic or in remission is a
disability if it would substantially limit a major life
activity when active.
• A temporary impairment is not a disability unless it
results in a substantial limitation of a major life
activity for an extended time.
(42 U.S.C. section 121204(4)(D).)
Eligibility: Major Life Activities
Major life activities 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.”
(42 U.S.C. § 12102(1)(B).)
Eligibility: “Substantially Limits”
A purpose of the ADAAA is:
• “to convey congressional intent that the
standard created by the Supreme Court . . . for
‘substantially limits’ . . . Has created an
inappropriately high level of limitation necessary
to obtain coverage.”
(122 Stat. 3553 § 2(b)(5).)
Eligibility: “Substantially Limits”
A person has a substantial limitation when one
or more important life activities are:
– “restricted as to the conditions, manner, or duration
under which they can be performed in comparison to
most people.”
(ADAAA Statement of Senate Managers.)
Eligibility: “Substantially Limits”
• In determining whether a student’s mental or
physical impairment substantially limits the
major life activity of learning, the district should
compare the student’s academic progress to
that of the “average child,” not a child of similar
intellectual potential.
• “substantially limited” ≠ not reaching his or her
potential.
(T.J.W. By Butler v. Dothan City Bd. Of Ed.
(D.C. Alabama 1997) 26 IDELR 999.)
Eligibility: Mitigation Measures
When determining eligibility, districts cannot
consider mitigating measures, such as
accommodations, assistive technology, or
behavioral modifications.
– Exception: ordinary eyeglasses and contact
lenses.
(42 U.S.C. section 12102(4)(E).)
Eligibility: Mitigation Measures
Why can’t mitigation measures be
considered?
“Medical” 504 Plans
• A medical condition (e.g. diabetes) can
entitle a student to a 504 plan.
• Emergency or Student Health Plan is not a
substitute for a 504 Plan!
Example
• ADHD student, and does not qualify for
special ed.
• Difficulty concentrating, trouble staying on
task, but with frequent reminders and cuing
from teacher, and placement in front of class,
student is able to learn and participate in
school.
• Student maintains a B average.
• Would this student qualify for Section 504?
Services and Accommodations
Relationship Between 504 and IDEA
REGULAR EDUCATION
ONLY STUDENTS
504 ONLY
STUDENTS
IDEA & 504
STUDENTS
FAPE Requirements
What is FAPE under Section 504?
– The provision of regular or special education
and related aids and services that are
designed to meet individual educational
needs of handicapped person as adequately
as the needs of a nonhandicapped are met.
(34 C.F.R. section 104.33)
– FAPE is not limited to accommodations.
(San Dieguito Union Sch. Dist. (OCR 2009) 109 LRP 54723.)
FAPE
What does this mean in practice?
• If a student needs special education to
receive a FAPE under Section 504, the
student may well qualify under the IDEA.
FAPE
• “A fundamental objective for this process is to
individualize the placement and supports to be
received by each child.”
• Example: Virtually every student with a disability at
a middle school had a behavior intervention plan.
Behavior plans were used as justifications for
finding that behaviors were not a manifestation of a
student’s disability. This violated Section 504.
(Long Beach Unified Sch. Dist. (OCR 2009) 109 LRP 54733.)
FAPE:
Least Restrictive Environment
• Section 504 provides a right to placement in
the least restrictive environment.
• Students with disabilities must be served in
the same setting as nondisabled students “to
the maximum extent appropriate to the needs
of the handicapped person.”
FAPE
So, how do you decide what a 504 student needs to
receive a FAPE?
• Determine, on an individual basis, based on
assessment, what placement, services, and
accommodations the student needs to access
educational opportunities in the least restrictive
environment.
Equal Access
• Section 504 students cannot be given lesser
opportunities than regular education students
– Districts cannot give students with disabilities:
• Inferior facilities
• Less-qualified teachers
• Shorter school days (unless required by specific student’s
disability)
– Example: COE operated a school for students with
severe disability. School day was shorter than at other
district schools; this violated Section 504.
(Azusa Unified Sch. Dist. (OCR 2009) 109 LRP 24391.)
Equal Access
Example:
• District set up special “Back to Basics” program at an
elementary school site. Parent alleged District had policy of
excluding students with disabilities.
• District said no such policy, but even if there had been, it
does not have to provide every program at every site.
• OCR held that this program was only available at that site,
and was not available to students with disabilities.
(Santa Clara Unified Sch. Dist. (OCR 2009) 109 LRP 31661.)
Equal Access
Counter-example:
District did not violate 504 by turning away
special education student who did not meet
magnet school’s entrance criteria.
(Oman v. Portland Public Schools (9th Cir. 2012) 679 F.3d 1162.)
Implementation
Implementation
• It’s not enough to give a student a Section
504 plan; the plan also must be consistently
implemented.
• Make sure all of the following are familiar
with a student’s 504 plan:
– Teachers
– Principal
– Other administrators responsible for
discipline
– Service providers
(San Lorenzo Unified Sch. Dist. (OCR 2009) 109 LRP 69420.)
Implementation
• Site coordinators must monitor 504
plans
– Ensure that all appropriate staff are
aware of and are properly implementing
504 plan
– Ensure that the plan is meeting the
student’s needs
– If the plan is not meeting the student’s
needs, reconvene 504 team to revise
plan
504 Student Discipline
Section 504
students have the
same rights re:
discipline as
special education
students
Other Potential 504 Traps
504 Student Discipline
• Disciplinary rights include:
– Manifestation determination meeting
– No disciplinary changes in placement due
to behavior caused by disability
Extra Curricular Activities
• Section 504 requires equal access and opportunity
to participate in non-academic and extra-curricular
activities.
• This is separate from the FAPE requirement.
Districts must provide reasonable accommodations.
(Conejo Valley Unified Sch. Dist. (OCR 2009) 109 LRP 54727.)
After School Programs
• Section 504 right to equal access applies to after
school activities.
• Example: Student wants to participate in
afterschool gymnastics club, but needs glucose
testing and insulin administration.
• Must the District provide the testing and
administration?
(Dear Colleague Letter (OCR 2013) 60 IDELR 167.)
Athletics
“A school district . . . may not rely on
generalizations about what students with a
type of disability are capable of – one student
with a certain type of disability may not be
able to play a certain type of sport, but
another student with the same disability may
be able to play the sport.”
(Dear Colleague Letter (OCR 2013) 60 IDELR 167.)
Athletics
Must make
reasonable
accommodations and
provide aids and
services necessary to
ensure equal
opportunity to
participate.
Athletics
• District does not have to make modifications
that would “fundamentally alter” the program
or sport.
• District may maintain safety standards.
Athletics
Example
• Student has a hearing impairment, but otherwise
qualifies for track team.
• Student wants a visual cue to be used
simultaneously with the starting gun.
• Must the District provide this accommodation?
(Dear Colleague Letter (OCR 2013) 60 IDELR 167.)
Harassment
• Districts must protect students with disabilities from peer
harassment. In cases of peer-to-peer harassment, districts
must promptly investigate and take any necessary remedial
action.
• Example: Students were making derogatory comments
about 14-year-old female burn victim’s disabilities. District
concluded that this was typical middle school behavior, and
did not investigate. OCR found that District violated Section
504.
(Fairfield-Suisun Unified Sch. Dist. (OCR 2008) 51 IDELR 139.)
Notice of Parental Rights
• The District must give parents copies of their
Section 504 rights
• Parents should be given rights:
– Upon initial referral for assessment
– At all 504 team meetings
– Whenever denying a parental request
• Also include parental rights in student handbook
Interpreters
• The District must provide a qualified
interpreter for non-English speaking parents.
(DeKalb (GA) Sch. Dist. (OCR 1991) 18 IDELR 921.)
Interpreters
• Interpreters should have:
– Ability to communicate information accurately and
completely in both English and in the other language in a
written and/or oral format;
– Knowledge of basic disability-related and special
education terms or concepts;
– Training regarding the role of interpreter and translator,
the ethics of interpreting and translating, and the need to
maintain confidentiality.
• It’s not ok to ask the parent to bring an interpreter!
Summary
• Provide parental rights upon initial referral and at 504 team
meetings
• District has the duty to identify and assess students
• Assessment must encompass all areas of suspected disability,
and be more than a doctor’s note
• Develop a 504 plan that addresses all areas of need relating to
disability
• Make sure that 504 plan is properly implemented by all service
providers
• Make sure that 504 plan is changed when necessary
• Proactively address disability-based harassment
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