IMPLEMENTING 504
IN MISSOURI’S
SCHOOLS
Teri Goldman
Teri B. Goldman, LLC
36 Four Seasons Center #337
Chesterfield, MO 63017
terigoldmanatty@aol.com
PURPOSE OF 504
To eliminate discrimination on the
basis of disability in any program or
activity receiving federal financial
assistance from the Dep’t of
Education.
 Direct or indirect receipt of federal
financial assistance.
 Private schools.

FUNDING

504 is not a source of funds. It has a
string attached to the receipt of
federal funding.
Discrimination Prohibited

An entity with 504 obligations cannot
directly, or through contract or other
indirect means, discriminate on the
basis of disability.

Must provide disabled persons with an
equal opportunity to benefit.
Discrimination Prohibited
Must provide disabled persons with
aids, benefits or services that are as
effective as those provided to others.
 To be equally effective, the aids,
services, etc. are not required to
produce the identical result or level of
achievement. Equal opportunity to
obtain that same result.

Discrimination Prohibited

May not provide different or separate
aids, benefits or services unless that
is necessary to provide aids, benefits
or services that are as effective as
those provided to others.
Who is disabled under 504?
A person is disabled if that person
currently has a physical or mental
impairment that substantially limits
one or more major life activities.
 If a student satisfies this definition, the
student is entitled to FAPE if the
school is a recipient of federal
financial assistance.

Other definitions of disability
A person is disabled and subject to
the nondiscrimination aspects of the
law, but not the FAPE obligation, if:
 (i) that person has a record of having
an impairment that is substantially
limiting; or
 (ii) is regarded as having such an
impairment.

Record of Disability

Has a history of, or has been
misclassified as having, an
impairment that is substantially
limiting.

Examples – persons with histories of
mental or emotional illnesses, heart
disease or cancer.
Regarded As

Has an impairment that is not
substantially limiting, but is treated by
the recipient as though he or she
does; or has an impairment that is
substantially limiting only because of
the attitude of others; or has no
impairment but is treated by the
recipient as having such an
impairment.
Regarded As
Examples – persons with a limp,
persons with disfiguring scars, AIDs.
 Be cautious of individual
accommodation and health plans
prepared outside of IDEA and 504.
 OCR – where teachers were asked to
comply with voluntary scent-free
program, student was regarded as
having disability.

Regarded As

Consider adding language to such
plans: This individualized plan
provides for routine accommodations
that the XYZ District makes available
to any student who needs such
routine accommodations. The District
has no reason to suspect that the
student who is the subject of the plan
has a 504 or IDEA disability.
What is an impairment?

Physical or mental impairment means
any physiological disorder or condition
or any mental or psychological
disorder.

An impairment, alone, is insufficient to
qualify a student as 504 disabled.
Medical Diagnoses
OCR – a medical diagnosis, including
medication, is neither necessary or
controlling in determining disability
status.
 A medical diagnosis is simply
evidence that the individual has an
impairment.
 Use terminology correctly.

Medical Diagnoses

OCR – finding a student eligible
simply on the basis of a diagnosis
violates 504.

Don’t second guess medical
diagnoses, simply consider them as
one part of the process.
What is a major life activity?
Major life activities mean functions
such as caring for one’s self,
performing manual tasks, walking,
seeing, hearing, speaking, breathing,
learning, and working.
 List is not exhaustive. Courts may
add further to the list.

Major Life Activities
In the school context, learning is not
the only major life activity to be
considered when determining
disability status.
 Courts take a global view. The activity
should be viewed as central to daily
living. Don’t use small subsets of
learning, such as spelling.

Major Life Activities
Major means important. “These terms
need to be interpreted strictly to
create a demanding standard for
qualifying as disabled.”
 Court Examples:

Lifting, but only as part of set of basic
motor functions.
 Running is not.

Major Life Activities
It is doubtful that socialization is.
 Gaining weight and failing the bar
exam are not.
 Driving is not.
 Caring for other is not.
 Eating, for a diabetic person, is.
 Attending day care is not.

Major Life Activities
Shopping, gardening, golfing are not.
 Sexual reproduction is.
 Eating and drinking may be.
 Ability to process body waste is for
person with kidney disease.
 Attaining a high score on the SAT is
not.

Major Life Activities

Specific activities not on the list are
determined on a case-by-case basis.
What is substantial
limitation?
First, look at whether the identified
impairment impacts the identified
major life activities.
 Second, must determine substantial
limitation on individual basis.
 Third, conduct the analysis by looking
at the individual with mitigating
measures in place.

Mitigating Measures

Devices or practices that a person
uses to correct for or reduce the
effects of the mental or physical
impairment.

Examples – eyeglasses, contacts,
medication, hearing aids.
Substantial Limitation

The individual must be significantly
restricted as to the condition, manner
or duration in which the individual can
perform the major life activity
compared to the condition, manner or
duration under which the average
person can perform that same major
life activity.
Substantial Limitation
Supreme Court – to be substantially
limited, the impairment’s impact must
be permanent or long-term.
 An individualized assessment of the
effect of the impairment is particularly
necessary when the impairment is
one whose symptoms vary widely
from person to person.

Substantial Limitation

Eighth Circuit – it means limited
considerably or to a large degree.

Critical – the comparison is to the
average peer or person in the
population. For students, measured
by reference to performance of
children at same age or grade level.
Substantial Limitation

Comparison is not in relation to
student’s potential or ability.

Use at least state or national data,
where available.
Exclusions

Environmental, cultural, and economic
disadvantage are not in themselves
covered.

Other excluded conditions include
bisexuality, other gender identity
disorders, compulsive gambling.
Exclusions
Psychoactive substance use disorders
resulting from current illegal use of
drugs.
 The term individual with a disability
does not include an individual who is
currently engaging in the illegal use of
drugs when the recipient acts on the
basis of such use.

Exclusions
Individuals no longer engaging in drug
use are not excluded if they have
successfully completed a supervised
drug rehab program.
 If an individual is a rehabilitated drug
addict or alcoholic, is not currently
using, and otherwise meets the
statutory definition, they can qualify as
disabled.

Temporary Impairments.
Supreme Court – ADA – the
impairment’s impact must be
permanent or long-term.
 EEOC – temporary, non-chronic
impairments of short-duration, with
little or no permanent long-term
impact, are usually not disabilities.

Temporary Impairments

OCR – may be covered if substantially
limiting and depending on severity
and duration.

Case-by-case evaluation.
Case Examples
Post-traumatic stress disorder,
standing alone, is not a disability and
not necessarily an impairment.
 Asthma was not a disability where it
did not impact a major life activity.
Attacks were infrequent and
symptoms could be controlled with
medication.

Case Examples
Former medical student was not
disabled where he could not prove
was substantially limited in learning
and reading. Prior academic success
was “fatally inconsistent” with his
claim to be disabled.
 A diagnosed learning disability is not
necessarily a disability under the ADA
and 504.

Case Examples
A diabetic person was not disabled
where the disorder was controlled
through insulin and diet.
 A person with end-stage renal disease
was disabled because was unable to
control the body’s ability to process
waste.

Case Examples
Student with asthma was eligible
where asthma was severe and
student was repeatedly hospitalized –
substantially limited in breathing.
 Student with asthma not eligible, even
where placed on homebound at times,
because her asthma, with inhaler, did
not substantially limit breathing or
other major life activities.

Case Examples
Student with ADHD not eligible where
impairment did not substantially limit
learning.
 ADHD student not disabled where
classroom performance was above
average.

504 v. ADA
Both prohibit disability discrimination.
 ADA – no federal financial assistance
requirement.
 Post-dates 504; patterned after 504.
 Same definition of disability.
 ADA – applies to all employers that
employ 15 or more.

504 v. IDEA
One definition of disability v. 13
categories.
 All IDEA students covered/protected
by 504.
 504 covers more students than IDEA
 1-2 % solely 504.

504 v. IDEA

Impairments that may not be IDEA
protected, but may be 504 protected:

Mental impairment – 70+ IQ

Social maladjustment
504 v. IDEA and FAPE
IDEA – an IEP that is reasonably
calculated to provide meaningful
educational benefit.
 504 – provision of regular or special
education and related services
designed to meet the individual
educational needs of disabled person
as adequately as needs of
nondisabled persons.

FAPE
Implementation of an IEP one way to
provide FAPE under 504.
 OCR – but parents have no flexibility
in choosing between IDEA and 504.
 Impermissible for parents to reject
IDEA services and require district to
develop only 504 plan.

504 v. IDEA

IDEA covers only students who meet
criteria.

504 covers more individuals and
activities- employees, patrons,
parents, facilities, extracurricular.
CHILD FIND
Obligation to Identify
and Evaluation Students
CHILD FIND
504 requires recipients operating
public elementary and secondary
education programs to annually
undertake to locate and identify all
students with disabilities.
 Comply, in part, by public
announcements and posting of forms
and notices.

Evaluations
Need written procedures regarding
evaluations and eligibility
determinations.
 Parents cannot demand a specific
evaluator.
 Referrals – teachers should document
why they believe student may need
504 assistance.

Child Find and Evaluations
504 requirements a preplacement
evaluation of any person who,
because of disability, needs or is
believed to need special education or
related services before taking action
with respect to initial placement.
 Significant changes in placement
require revaluations.

Evaluations

A student seeking 504 eligibility must
permit the school to conduct and
evaluation to determine if the student
is a person with a disability.

A placement of a student in 504
without an evaluation violates 504.
Evaluations
Districts are not required to evaluate
or identify, simply at parent request,
where no reason to suspect a
disability.
 If refuse, should provide notice of
action and 504 procedural
safeguards.

Evaluations
District is obligated to conduct
evaluation where reason to suspect
that student may meet 504 definition
of disability.
 If a parent refuses to consent to an
evaluation to determine existence of
disability, the student is considered
not to be disabled.

Evaluations

No automatic obligation to evaluate
students for 504 eligibility after the
determination of non-IDEA eligibility.

DO NOT USE 504 AS A
CONSOLATION PRIZE!!!!
Evaluations

504 does not necessarily require a
medical evaluation, but if the team
believes one is necessary, it must be
provided at no cost to parent.

Must consider, but not follow, outside
evaluation recommendations.
Evaluations

504 does not specify the form of the
evaluation.
Evaluations
Need written procedures regarding
evaluations and eligibility
determinations.
 Parents cannot demand a specific
evaluator.
 Referrals – teachers should document
why they believe student may need
504 assistance.

Evaluations
Need referral, screening (review of
existing data) and evaluation
procedures.
 A medical diagnosis, alone, is not an
evaluation.
 Evaluation procedures should be
consistent with those used under
IDEA with respect to:

Evaluations

Validation and reliability.

Proper administration.

Sufficient testing in all areas of
suspected disability.
Evaluations

Not automatic obligation to evaluate
students for 504 eligibility after the
determination of non-IDEA eligibility.

DO NOT USE 504 AS A
CONSOLATION PRIZE!!!!
Evaluations and Consent
OCR, not 504, requires written
parental consent for initial 504
evaluations.
 OCR does not, at this time, require
consent for reevaluations.
 Districts may, but are not required to,
use due process to override refusal to
consent.

Reevaluations

Must have procedures for periodic
reevaluations of students.

No 3-year requirements.

Discontinuation of 504 eligibility
requires a reevaluation.
Independent Educational
Evaluations

No specific requirement in 504.

OCR has sometimes interpreted 504
as requiring that in certain
circumstances.
Evaluation Timelines

None specified in 504 or by OCR.

Complete without undue delay
following referral.

Following IDEA timelines (60 days)
should suffice.
Child Find and Referrals

Routine Accommodations – if a
student only needs routine
accommodations, there is probably no
reason to suspect a 504 disability.

Consider list of routine
accommodations.
Determining Students’
Eligibility
Referral Process
 Parent Communications
 Screening
 Evaluation
 Eligibility Meeting

Eligibility
Remember – student must have
current impairment that is currently
substantially limiting a major life
activity.
 Determined by team of persons
knowledgeable about the student,
504, evaluation data and other
information.

Eligibility

No mandatory team requirements.

Parents not mandated members, but
should always be invited.
Eligibility Case Studies

Appendix with hypotheticals and
sample forms.
Team Process

504 requires the use of a
multidisciplinary team.

Eligibility and programming decisions
should not be made by one individual.
PROVIDING
ACCOMMODATIONS
TO ELIGIBLE
STUDENTS
PROVIDING
ACCOMMODATIONS
TO ELIGIBLE
STUDENTS
Accommodation Plans

Must provide FAPE regardless of the
nature or severity of the person’s
handicap.

Provision of regular or special
education and related aids and
services.
Accommodation Plans

OCR rejects the reasonable
accommodation standard, although
courts have implied.

Requirement is FAPE (through regular
or special education). Designed to
meet the needs of the disabled person
as adequately as needs of
nondisabled persons.
Accommodation Plans
OCR – 504 does not require parent
participation in placement decisions
generally.
 Requirement of knowledgeable team.
 Classroom teachers generally are
considered knowledgeable.
 504 does not give parents right to
dictate methodology

504 Plans
Team determines accommodations
students needs to have equal
opportunity to succeed in classroom.
 504 leaves to districts the range of
information to be included.
 Should describe all accommodations
with sufficient detail to avoid ambiguity
and nonimplementation.

504 Plans
Staff must be notified of their
responsibilities for providing
necessary accommodations.
 Accommodations should be tied to the
impairment and substantial limitation.
 Do not over accommodate.
 Behavior issues may require BIP.

Essential Plan
Requirements
Nature of disability and MLA limited.
 Educational impact of disability.
 Necessary accommodations and
implementers.
 LRE considerations.
 Related services.
 Persons participating.
 Date/parent signature.

Related Services

May be part of an appropriate
education.

Transportation must be provided if
necessary.
Testing Accommodations
May be necessary in plan.
 Look to see if accommodations and
modifications might change outcome
or validity of test.
 Accommodate only those areas
impacted by 504 disability.
 504 requires equal opportunity, not
advantage.
 Do not use “cookie cutter” approach.

Accommodation Plans
One hour limit on daily homebound
instruction violated 504 because it
failed to take into account individual
needs.
 Must consider all outside information;
not required to implement all
recommendations.
 Placement on homebound solely
based on medical document and
parental request violated 504.

EXAMPLES
Assignment of para to monitor
symptoms and snacks for diabetic
student; nurse training for staff;
administration of medication
 Teachers to sign planner daily but
student responsible for asking
 Student undergoing chemo allowed to
wear hat in classroom






Epi-pen training for student with peanut
allergy; substitutes to be notified of
student’s needs
Peer education for students regarding
hygiene
Modified grading
Classroom aides
CD texts and notetaker for student with
limited use of arms and upper body
Room set aside for children with
multiple chemical sensitivity; remove
carpeting – air filters
 Books on tapes, when available;
outline of teacher presentation, when
available
 50% extra time on tests
 Second set of texts

ESY
504 students generally not candidates
for ESY.
 Some 504 students may be entitled to
ESY.
 District may not limit ESY only to
students with IDEA disabilities.

Transition
Not specifically required.
 But . . . .

TRANSFERS

In-District

From other Districts:
Placement

In interpreting evaluation data and in
making placement decisions, the
recipient must draw upon information
from a variety of sources, establish
procedures to ensure that information
from all sources is documented and
carefully considered, ensure that the
placement decision is made by a
group of persons, including persons
knowledgeable about the child,
the meaning of the evaluation data,
and the placement options; and
ensure that the placement decision is
made in conformity within 504’s least
restrictive environment requirements
LRE

The recipient must educate, or
provide for the education of, each
qualified handicapped person in the
jurisdiction with persons who are not
handicapped to the maximum extent
appropriate to the needs of the
handicapped person. 34 C.F.R.
104.34(a).
LRE
Must place in regular education
unless it is demonstrated that the
education of the person in the
regulation environment with the use of
supplementary aids and services
cannot be achieved satisfactorily.
 If place in other than regular
education setting, the recipient shall
take into account the proximity of the
alternate setting to the person’s home.

LRE

Commentary – allows taking into
account the effect on other students
but only when it is extremely adverse.
LRE

Cases:



Excluding students from any placement
solely because of disability would violate
504.
Placing student in less restrictive
environment solely to accommodate parent
despite overwhelming evidence of
inappropriateness of placement is denial of
FAPE.
Refusal to place CP student in regular
education classes did not violate 504 where
deficiencies could not be overcome with aide
LRE

Failure to individually justify removal
of disabled students from regular
education violates 504.

Providing adaptive PE in segregated
environment to meet teacher’s, rather
than student’s, needs violates 504.
LRE

Placement of student in trailer with
aide but without teacher violates 504’s
LRE requirement.

District violated 504 when it decided
not to place student in neighborhood
school based on unsubstantiated
concerns for student’s safety.
LRE


Decision to limit attendance of kindergarten
student with behavioral problems to half
days, which was not based on credible
medical or educational reasons, violated
504.
Determination that student with diabetes
needed to test blood-sugar levels outside
classroom was dictated by school practice
and concerns of other students rather than
student’s individual needs and violated 504.
LRE and Nonacademic
Settings

In providing or arranging for the
provision of nonacademic and
extracurricular services and activities,
including meals, recess, etc., the
recipient must ensure that
handicapped persons participate with
nonhandicapped persons to the
maximum extent appropriate to the
needs of the handicapped person. 34
C.F.R. 104.34(b).
LRE and Nonacademics
District did not violate 504 when team
decided that student’s behavior
prevented him from riding regular
education bus.
 Failure to demonstrate educational
necessity for separate graduation
ceremonies for students with severe
disabilities violates 504.

FAPE

If a public or private residential
placement is necessary to provide
FAPE, the placement, including nonmedical care and room and board,
shall be provided at no cost to the
person or his or her parents or
guardian.
FAPE

If a recipient makes FAPE available
and the person’s parents or guardian
decide to place the person in a private
school, the recipient is not required to
pay for that person’s education in the
private school. Disagreements about
FAPE are subject to 504’s due
process procedures.
TRANSPORTATION

If a recipient places a disabled person
in or refers a disabled person to a
program not operated by the recipient
as a means of providing FAPE, the
recipient must ensure that adequate
transportation to and from the
program is provided at no greater cost
that would be incurred by the parents
if the person were placed in the
recipient’s program.
TRANSPORTATION

District was required to reimburse
parent for transporting student to OT
provided at hospital.

Where parents unilaterally place
student at private school and fail to
ask district to pay, district is not
responsible for transportation costs.
504 Plans





Distribute copies to teachers and staff.
Don’t forget necessary administrators,
substitutes and ISS.
Follow-up to ensure implementation.
Reconvene team as needed for
modifications to plan.
Consider annual review requirement.
Notice to parents when making changes
PEANUT
ALLERGIES
Is an allergy a disability?

Same definition and analysis: it is
impairment, but does it substantially limit a
major life activity.

Take mitigating measure into account.

6% of school-aged students nationwide
have a food allergy according to one
source.
Cases

Land v. Baptist Medical Center (8th
Cir. 1999).
Decided under the ADA
 Day care center refused to serve
child who required monitoring of diet
 Two reactions at school due to
peanut exposure

Court held that day care did not
violate ADA because child was not
substantially limited in the major life
activities of eating and breathing.
 Concluded that eating and breathing
were major life activities. Attending
day care is not.
 The doctor described the impact as “a
little bit.”

Cases

Mystic Valley Regional Charter School
(SEA MA 2004).
First grader with life threatening
peanut and tree nut allergy.
 Parent claimed needed a ban on all
peanut and tree nut products in the
student’s classroom.
 District asked other parents to refrain
from sending such products to school.





District required staff and students to wash
hands before and after eating.
School had staff training on recognition of
anaphylactic reactions and how to
administer medications.
School stopped supplying peanut butter as
an alternative lunch.
School required the student to eat with a
chosen classmate at peanut free table.
School had tables washed after
meals.
 School position – what they did was
reasonable accommodation.
Classroom ban would impose an
undue burden.

Decision
Student’s allergy was life threatening.
 As a result, it warranted a classroom
ban. Students are impulsive and
share food.
 School discriminated because student
was not allowed to participate in
educational experience involving
Asian food.

Lunch table assignment were
stigmatizing and isolating.
 Student was entitled to equal access
to a pool of other students during
snacks and lunch as his peers.
 School failed to prove that a
classroom ban would fundamentally
alter the school’s educational
program.

Cases

R.P. v. Cascade Sch. Dist. (SEA OR 2002)



4th grade student with severe allergy to
peanut and tree nut products.
Touching item which has been touched by
someone who has touched nuts may cause
hives or rash.
Symptoms where ingestion include life
threatening symptoms.

Parents and district developed health
protocol:
Don’t give student products containing
nuts
 Student should avoid contact with nut
products
 Labels should be reviewed before
distributing food
 Train students, personnel.

Protocol followed but student exposed
to peanuts at school.
 Parents then requested more detailed
plan.
 Parents did not request nut-free
school.


New Plan:
Steps taken to eliminate nut products
from student’s classroom
 Allergy free table in lunchroom
 Food preparation for student to be
nut-free
 Students to be trained re: her allergy,
prevention and appropriate response

Staff to be trained
 Medication to be available to any
school setting, including field trips
 Student’s safety to be maintained on
bus
 504 plan included transportation
medical protocol and health
management protocol.

During next year, student had five
exposures to peanuts for which
epipen was administered. Period of
time after that, no contact with nuts.
 Then – birthday treats with nuts and
field trip exposure
 Continued discussions with parents
who were not satisfied. Removed
student from school.

Continued discussions about 504 plan
to address parent concerns. More
detail added to plan.
 Student remained out of school.
Parents requested more additions to
plan. District offered to change
placement based on belief that plan
could no longer be implemented in
public school. LRE – home.


Parent filed due process and hired
tutor for student.

Parents argued district should provide
tutor at home and requested
compensatory services.
Decision
District offered a 504 plan which was
designed to meet student’s individual
needs as adequately as the needs of
students with disabilities.
 District did not violate 504.
 Parents not entitled to reimbursement
for tutoring or compensatory
education.


District offered a 504 plan that
provided accommodations and
services that allowed student to safely
access school as adequately as
students without disabilities.

Undue burden on district to require for
nonmandatory activities at which any
student’s attendance is voluntary that
district police behavior of others and
prohibit provision and distribution of
food containing or processed with
peanuts or tree nuts or require all
participants to wash their hands, etc.
Mitigating Measures

If medication is administered
immediately after the allergic reaction
and the medication takes effect and
minimizes the impact of the allergy is
the child substantially limited?
Implementing 504 Plans
If student qualifies as disabled, write
plan and address the limitations
imposed by the allergy on the
identified major life activity.
 Peanut and derivative bans or
restrictions.
 Para on playground?
 Scent-free ambulance?

Implementation
Monitor for full implementation of plan.
 Farmington MA Public School (OCR
2005) - parent of kindergarten
student with life-threatening peanut
and nut allergy complained that
district failed to implement 504 plan.
OCR found for the District.


Plan called for
Staff training on epipen use
 Notification of substitute staff of
allergy and protocols
 Keeping coded chairs at peanut free
table in lunchroom
 Taking field trips into consideration
 Keeping classroom nut free
 Educating peers about the allergy

School-wide Bans
Are they necessary?
 Are they reasonable?
 Are they feasible?
 Can they be enforced and monitored?
 Is homebound an alternative way to
address a severe case?

Discrimination Issues
Are your accommodations socially
isolating and stigmatizing?
 Is the student being excluded from
any of the district’s program or
activities?
 Don’t forget to address bus, field trip
and other non-academic areas.
 Don’t forget to address food brought
in for parties, etc.

Resources

Food Allergy & Anaphylaxis Network

Tips for Educators

Free Allergy Action Plan

www.foodallergy.org
Have a food-safety plan in which you
regularly communicate with parents
and staff.
 Have procedures for emergencies.
 Ask parents to provide updates on
changes in child’s health or
medications.
 Coordinate with school nurse to
ensure proper storage of medications.

Designate staff member to administer
medications in case of serious allergic
reaction. Make sure that person is
properly trained.
 Enforce a ‘no eating’ policy on buses.
 Find out where nearest hospital is to
field trip site.
 Encourage students not to share food.

DISCIPLINE
Discipline
Not addressed in statute or regulation.
 OCR – FAPE and prohibition of
exclusion on basis of disability.
 Must track disciplinary removals.
 Removal from placement for more
than 10 days constitutes change in
placement.
 Drugs and alcohol. Possession v.
use.

Discipline
504 regulations require manifestation
determination before significant
changes in placement through
disciplinary action.
 Consecutive days.
 Pattern of exclusion. Length of each
suspension, proximity and total
amount of time excluded.

DISCIPLINE

Cumulative OSS of 15 days, but only
10 after being on 504 plan, did not
constitute significant change in
placement and, therefore,
manifestation determination required.
DISCIPLINE

Five suspensions totaling 29 days
over 5 months was significant change
in placement; 3 suspensions totaling
12 days during 6 weeks and 4
suspensions totaling 23 days during 6
months were not change in
placement.
DISCIPLINE

No change of placement and,
therefore, no need to conduct
manifestation here:
Oct. 21 – 2 OSS
 Oct. 29 – 2 OSS
 Feb. 3 – 2 OSS
 Feb. 21 – 4 OSS
 April 2 – 5 OSS

DISCIPLINE

No violation where ADHD student
brought bullets to school, struck
principal and threatened to kill her,
and district properly convened team
and conducted manifestation
determination. Properly concluded
behavior not related.
DISCIPLINE


Where student’s plan did not stipulate
transportation as a related service, district
did not violate 504 when it did not hold
manifestation determining meeting before
issuing bus suspension.
If transportation is related service, may not
be terminated before determination of
relatedness. If behavior related and student
is dangerous, district may change mode or
method of transportation.
DISCIPLINE

504 did not require manifestation
determination prior to suspension
from football team because
suspension did not result in removal
from educational program or failure to
provide educational services.
DISCIPLINE

Where student was individual with
disability engaged in illegal use of
drug, not entitled to manifestation
determination prior to significant
change in placement.
DISCIPLINE

Under 504, districts may cease
educational services during periods of
suspension that exceed 10 school
days if nondisabled students are
treated in that manner and the
student’s misconduct is unrelated to
the disability.
Discipline
No FBA or BIP requirements explicit in
504.
 No stay-put provision.
 No 45-day alternative interim
placement provision for drugs,
weapons, serious bodily injury.
 Suspected disabilities/not yet
identified. Knew or should have
known.

PROCEDURAL
SAFEGUARDS
Procedural Safeguards

Must have 504 procedural safeguards
that include:
Notice
 An opportunity for parents or guardian
to examine relevant records;
 An impartial hearing with opportunity
for participation by the person’s
parents or guardian and
representation by counsel, and
 A review procedure.

Procedural Safeguards

Must use impartial hearing officers in
due process hearings; must not have
personal or professional conflict of
interest.

Use of private attorney as hearing
officer does not violate 504.
Grievance Procedures
A recipient that employs fifteen or
more persons shall designate at least
one person to coordinate its 504
efforts.
 A recipient that employs 15 or more
shall adopt grievance procedures that
incorporate appropriate due process
standards and provide for the prompt
and equitable resolution of complaints
about discrimination.

SAFEGUARDS
District refusal to provide due process
hearing until parent exhausted
grievance procedure violated 504.
 Districts may not require parents to
use other established procedures
before requesting 504 due process
hearing.
 Fee for copies did not deny parents
procedural right to examine records.

SAFEGUARDS
District failed to inform parent of right
to appeal denial of eligibility for
services.
 District satisfied 504 where parents
given opportunity to review files even
after parents requested copies.
 Schools have no obligation under
IDEA to notify parents of 504 rights.

SAFEGUARDS
No explicit stay-put provision; fair due
process, however, includes a district
waiting for results of due process
hearing before making change.
 Districts may request due process
where parent refuses to provide
consent for initial evaluation or
placement.

SAFEGUARDS
If parent wishes to discontinue 504
services and district disagrees, district
must initiate due process hearing.
 No 504 timelines for hearing
procedures; OCR looks to standards
of fairness and reasonableness.
 Significant changes in placement
require notice to parents.

Forms and Procedures
Referral
 Eligibility
 Evaluation
 Accommodation Plan
 Procedural Safeguards
 Grievance Procedures

ENFORCEMENT

United States
Department of
Education – Office
for Civil Rights


Kansas City,
Missouri Regional
Office
Complaint Process
ENFORCEMENT

No state-level enforcement

Local level enforcement

Grievance procedures for claims of
discrimination

Due Process Hearings for matters
relating to evaluation, identification,
FAPE
OCR COMPLAINTS

Under federal law, OCR has broad authority to
investigate claims of discrimination.

OCR can request submission of records and
documentation to investigate compliance. “Each
recipient shall permit access during normal business
hours to records and facilities as may be required to
ascertain compliance.”

If OCR finds 504 violations, can order remedial action
to overcome effects of discrimination such as
termination of federal funding.
OCR COMPLAINTS

Who can file? Any person who
believes himself or any specific class
of individuals to be subjected to
discrimination may be himself or by a
representative file a written complaint.
Must be filed not later than 180 days
from the date of alleged discrimination
unless time is extended by OCR.
OCR COMPLAINTS



OCR is required to make a prompt
investigation if the information indicates a
possible failure to comply.
Screen – discretion not to investigate.
Investigation to include, where appropriate,
review of pertinent practices and policies of
the recipient, the circumstances under
which possible noncompliance occurred
and other relevant factors.
OCR COMPLAINTS

Emphasis on voluntary compliance – if the
investigation indicates a failure to comply, OCR will
inform recipient and attempt to resolve the matter by
informal means whenever possible. If that is not
successful, OCR has authority to impose remedies.
OCR COMPLAINTS

If investigation warrants no action, the
OCR will inform the district and
complainant, in writing, of that
determination.
OCR COMPLAINTS

Generally, OCR examines procedures
rather than substance of decisions.

If complainant is seeking to have
substantive educational decisions
examined, OCR generally will refer
that person to due process
procedures.
OCR GENERAL ANALYSIS
Is the student disabled under the 504
definition?
 Is the student “otherwise qualified”?
 Has the student been discriminated
against on the basis of disability?


Has the district provided FAPE as
defined by 504 and/or the IDEA?
• Have the student’s individual needs been
met as adequately as the needs of
nondisabled students?
• Has the student been educated in the
LRE?
• Are the services, facilities and activities
provided to students with disabilities
comparable to those provided elsewhere
within the district?
• Has the student been evaluated using
required procedures?
• Has the student’s placement been
determined under proper procedures?

Are proper procedural safeguards in
place and communicated to parents?

Has there been any disparate
treatment on the basis of disability?

Has there been any retaliation?

Have there been equal educational
opportunities for students with
disabilities?
OCR COMPLAINTS

Getting the letter from OCR:

Complainant and allegations

Request for education records

Request for policies and procedures
OCR COMPLAINTS

Receipt of complaint – steps to take:
Assign an individual as contact
person.
 Find out as much about the complaint
as possible. Verify identity of student.
 Consult legal counsel/Liaison?
 Consider a voluntary corrective action
plan as an early resolution.
 Cooperate with investigators. Offer to
draft a plan for the investigator’s
review. Can include disclaimers of

OCR COMPLAINTS

Investigation:
OCR will review materials submitted
 Superintendent may receive a letter
stating OCR findings based on record
review with an Agreement to Resolve
Contract.
 Agreement to Resolve may be sent
without any findings
 To sign or not to sign - negotiations


Consider a written response in
addition to submission of records.

Prepare a chronology of events, if
relevant, to assist OCR in determining
what occurred.

Label the files and cross-reference
those to the OCR’s letter of
investigation and the District’s
response.
VOLUNTARY RESOLUTION

District has opportunity to negotiate a
voluntary resolution with OCR.

Can negotiate an agreement in which
district does not admit liability but agrees to
undertake specified actions.

Can refuse early resolution and insist on
investigation with factual and legal findings
and conclusions.
ON-SITE INVESTIGATIONS

Be prepared.

Make sure staff is available, if
necessary, to speak to OCR
representatives.

Have policies and procedures
available for review.
OCR COMPLAINTS PRACTICAL TIPS





Be cooperative not confrontational.
Create open dialogue.
Be proactive – ask OCR to review your
policies and procedures and provide
feedback.
Provide the information that OCR requests.
Before the complaint, ensure that you have
appropriate policies and procedures in
place and ensure that staff is trained and
knowledgeable about 504.
SECTION 504 –
DUE PROCESS HEARINGS

Federal Regulations:

A recipient that operates a public
elementary or secondary program
shall establish and implement, with
regard to identification, evaluation or
educational placement, a system of
procedural safeguards that includes
• An impartial hearing with opportunity for
participation by the person’s parents or
guardian and representation by counsel
and a review procedure.

Compliance with IDEA procedures is
one means of meeting this
requirement.

But – not in Missouri. Cannot use
IDEA State three-member panel
system for 504 issues.

Can establish a different and more
streamlined procedure.

504 due process hearing procedures
are established by each district – not
by the State.
504 DUE PROCESS




Your 504 procedural safeguards must
specify the parent’s right to request an
impartial hearing. Can add additional
information regarding that process.
Safeguards must explain the review
procedure, the right to examine relevant
records, the right to an impartial hearing
and the right to counsel.
Must render decision in timely manner.
Failure to provide a hearing, if requested,
violates 504.
Must provide access to records.
 Districts can suggest mediation upon
receipt of a request, but cannot use
mediation as a means of delaying the
hearing.
 If receive adverse decision, may not
disregard unless file a judicial appeal
in which request stay of enforcement.

Due Process v. Grievance
Must have an internal grievance
procedure in additional to due process
procedures.
 Grievance – claims of discrimination.
 Due Process – claims relating to
evaluation, identification, placement,
FAPE.
 Cannot require parents to exhaust the
grievance procedure before providing
an impartial due process hearing.

504 Due Process

Each district can establish its own
procedures and include those in its
procedural safeguards. Consider:




One hearing officer v. multiple
Hearing officer must be impartial – no
personal or professional interest conflicting
with that of student.
No requirement to involve parents in
selection of HO.
Who would select if receive request. Can
use private attorney.
504 Due Process

Legal counsel participation
Timelines – time for filing requests,
timeline for hearing and decision to be
completed
 Must monitor timelines of hearing
decision. Must appoint new HO if
original fails to render timely decision.


Court reporter v. other type of record

How parents should file a 504 due
process request and to whom it
should be made.

Districts are obligated to implement
their own internal procedures as
written even if those procedures are
not required by OCR or 504.
OTHER ISSUES
Districts, as well as parents and
guardians, can initiate due process
under 504.
 504 contains no stay-put provision,
but OCR has stated that a fair due
process system would encompass the
district waiting for the results of the
process before making a change in
the student’s program or status.

PRACTICAL TIPS

Check your district’s procedures to
see if you have both a grievance
procedure and due process
procedure.

Consider adding local detail regarding
due process procedure to procedural
safeguards.
PRACTICAL TIPS






If receive request, add expeditiously.
Immediately select hearing officer.
Consult legal counsel.
Gather education records.
Discuss claims with relevant staff.
Determine if procedures followed and
decision is correct.
Discuss whether to mediate or informally
resolve.
DISCRIMINATION
ISSUES
NONACADEMIC SETTINGS

Under 504, the recipient must ensure
that disabled persons have the
opportunity to participate with
nondisabled persons to the maximum
extent appropriate to the needs of the
disabled person in nonacademic and
extracurricular services and activities.
NONACADEMIC
SERVICES
Standard is one of equal opportunity
for participation.
 Includes counseling services,
recreational activities, transportation,
health services, special interest
groups.

Discrimination Prohibited
A recipient may not deny a qualified
disabled person the opportunity to
participate in or benefit from an aid,
benefit or service.
 A recipient may not provide different
or separate aids, services or benefits
to disabled persons unless that is
necessary to provide those that are as
effective.

FAPE

Participation in extracurricular
activities and nonacademic services is
not a FAPE issue.

Issue only of accessibility and equal
opportunity for participation.

Don’t include in 504 plans.
PROGRAM
ACCESSIBILITY
All programs, services and activities
must be accessible and usable by
individuals with disabilities.
 Access is required for participants,
employees, patrons. Personal
devices, such as hearing aids, need
not be provided.
 Ex. – interpreters, braille.

ACCESSIBILITY

Program, not necessarily building,
must be accessible.

Can move classrooms to ensure
program accessibility.

Accessible entrance need not always
be main entrance.
Accessibility

Buildings in which a student may
spend extended periods of time must
meet a higher degree of accessibility
than those in which a student spends
relatively short periods of time. (OCR
2004).
ACCESSIBILITY

Buildings must have full range of accessible
support facilities:









Parking
Accessible Routes
Entrances
Signage
Rest Rooms
Drinking Fountains
Alarms
Doors
Telephones
ACCESSIBILITY

Look at classrooms, computer labs,
lunchrooms, sports facilities,
playgrounds, libraries, science labs.

504 prevents discrimination against
persons with disabilities resulting from
inaccessible or unusable facilities.
COMPARABLE FACILITIES

If the recipient operates a facility for
persons with disabilities, it must
ensure that the facility and services
provided there are comparable to the
recipients’ other facilities and services.
Accessibility

OCR – 1993 – signage must be
accessible to individuals with
disabilities without assistance from
another person. The guidelines
contemplate the signs needing to be
read by individuals in wheelchairs.
But must allow for possibility that
others will require signage.
Cases

Uxbridge (MA) Pub. Sch., 20 IDELR
827 (OCR 1993) – school failed to
make programs and activities
accessible because school had no
raised letter or number signage to
identify classrooms, offices, library,
nurse’s office, cafeteria and gym.
Affected access to all programs,
activities and services at the school.
Cases

Cleveland Heights (OH) Sch. Dist., 37
IDELR 131 (OCR 2002 ) – district
agreed to modify restrooms in middle
school to provide for properly
maintained toilet seat adapters and to
adjust height of mirrors and toilet
paper dispensers.
Accessibility

OCR Memorandum 1992 – district
must place signs at all inaccessible
entrances, directing users to an
accessible entrance or to location
where information about accessible
facilities can be obtained. The
international symbol for accessibility
must be used at each accessible
entrance.
COMPARABLE FACILITIES

Examples:
Separate gyms – permissible if
comparable to class space for
students without disabilities.
 Trailers – where not comparable – i.e.,
no water fountains, bathrooms,
violates 504 based on
noncomparability.

COMPARABLE FACILITIES

Can violate comparability requirement
if recipient provides significantly less
adequate space for disabled students
compared to regular education
students.
Cases

Fort Worth (TX) Indep. Sch. Dist., 19
IDELR 856 (OCR 1993) – district
violated 504 and ADA because two
schools lacked accessible support
facilities such as rest rooms, water
fountains, alarm systems and
signage. As result, district
unreasonably limited participation of
disabled students.
Transportation
Transportation

Section 504 at 34 C.F.R. § 104.4(a)
provides that no qualified individual with a
disability shall be excluded from
participation in, be denied the benefits of, or
otherwise be subjected to discrimination.
Section 504, at 34 C.F.R. § 104.33(a),
states that a recipient shall provide a free
appropriate public education (FAPE) to
each qualified individual with a disability.

34 C.F.R. § 104.37(a)(1), provides that
nonacademic and extracurricular services
and activities shall be provided in such a
manner as is necessary to afford students
with disabilities an equal opportunity for
participation in such services or activities.
34 C.F.R. § 104.37(a)(2) defines
transportation as a nonacademic service or
activity.
TRANSPORTATION

If the recipient places a student in a
program not operated by the recipient,
the recipient must ensure that
adequate transportation to and from
those services is provided at no
greater cost than would be incurred by
parents if student placed in recipient’s
programs.
LENGTH OF BUS RIDES

Cannot provide students with
disabilities a bus ride that results in
shortened school day unless
legitimate reason to do so.

Bus rides for disabled students that
are lengthier than for nondisabled
students may violate 504.
REIMBURSEMENT

Reimbursing parents using district
standard mileage rate does not violate
504.

Cannot require parents to provide
transportation as related service; can
offer mileage reimbursement.
HARASSMENT ISSUES

Must take steps to ensure that
transportation services are safe and
address allegations of physical and
verbal abuse occurring on bus rides.
DISCIPLINE

Letter to Veir (OCR 1994) – if transportation
is related service, district may not
unilaterally revoke that service even where
student has exhibited disruptive or
dangerous behavior during transportation
without taking steps that confirm to 504
disciplinary procedures. May, however,
seek to change method of providing such
services if student poses danger to self or
others.
ADA ISSUES

Lifts

Wheelchair securement

Staff training

District/State Regulations
CASES

Richland (WA) Sch. Dist. (OCR 1995)
– concluding that student with
rheumatoid arthritis and tendonitis did
not require transportation as related
service.
CASES

Shasta County (CA) Office of Educ.
(OCR 1990) – finding that student
required door to door transportation
even where aide was required to walk
with student because of poor road
conditions.
CASES

Jim Thorpe (PA) Sch. Dist. (OCR 1993) no
discrimination even where transportation
time exceeded state’s recommended
guidelines where instructional time
exceeded that of district’s other
kindergarten children, but finding that
district violated 504 and ADA where failed to
evaluate student’s need for specialized
transportation.
CASES

Bladen (NC) County Sch. Dist. (OCR
1994) – finding for parents on
transportation issue where student
spent almost two hours each way on
mini-bus and, as result, missed 2 ½
hours per day of instruction.
CASES

Polk County (FL) Sch. Dist. (OCR
2000) – holding that extended bus
transportation time for group of
disabled student was due to fact that
man of them required personalized
care when picked up and dropped off.
CASES


Elk Grove (CA) Unified Sch. Dist. (OCR
1994) – district did not offer legitimate
reason to deny bus privilege to student with
respect to field trip.
San Diego Sch. Dist. (OCR 1998) – special
day class students denied equal access to
after school programs since only
nondisabled students were provided late
activity bus.
PRACTICAL TIPS
Consider student’s individual needs.
 Is transportation a necessary related
service under 504 standards.
 Look at time of bus routes – are
school days of disabled students
being consistently shortened because
of transportation routes.
 Need for paraprofessional assistance

Need for training for bus drivers.
 Need for evaluation for transportation
or special transportation needs.
 Consider need for specialized
equipment. If so, write into 504 plan.
 LRE considerations.
 Door-to-door/curb-to-curb.

FIELD TRIPS
Legal Issues

When and to what extent must
students with disabilities be included
in field trips?

What accommodations must a district
make to enable disabled students to
attend such trips?
Who can go?
Must be determined on a case-bycase basis.
 District has burden of proving that
student should not participate.
 If not part of the curriculum, IEP or
504 team need not make the decision.
 Extracurricular activities are not part
of FAPE per OCR.

Reasons for Exclusion

Exclusion on basis of academic
programming considerations may be
permissible where purpose of field trip
is related to curriculum and students
with disabilities are not studying that
curriculum.
Reasons for Exclusion

Robert H. v. Nixa R-2 Sch. Dist. (W.D.
MO 1997) – district’s refusal to allow
student to attend field trip did not
violate IDEA because student’s
participation was conditioned on
completion of homework and student
failed to meet this condition.
Reasons For Exclusion
Medical – may prohibit student from
attending field trip if it believes
participation presents unacceptable
risk to student’s health or safety.
 Need to research the nature of
disability and possible
accommodations before deciding to
exclude on this basis.

CASE

Quaker Valley (PA) Sch. Dist. (OCR 1986) –
district violated 504 when excluded student with
neurodegenerative disorder from field trip to
local TV station. District afraid student would
injure herself because of ambulatory problems.
Evidence did not support district reasons for
excluding child. Could have participated had
been provided same accommodation provided
at school – escort holding her hand. Principal
made unilateral decision to exclude without
discussing with parent or without notifying
parent of trip.
CASE

North Hunterdon Regional (NJ) High Sch.
(OCR 1996) – no violation of 504 where
district excluded student with CP and
epilepsy from field trip because district had
not categorically denied student that
opportunity on basis of disability. But –
investigation showed district had no policy
for determining whether student could
attend off-campus activity if medical
concerns existed. School nurse in charge
of decision on day of event.
Accommodations
If student requires related aids or
services to participate in school
program, including field trip, district
must provide.
 In OCR complaints, districts have
been required to make the same
accommodations available on field
trips as those provided to students in
the classroom.

Accommodations
– Parent Chaperone
District cannot require parent of
student with disability to accompany
student on field trip when similar
obligation not imposed upon parents
of nondisabled students.
 May invite parent to accompany
student. If student needs aids or
services to participate, must be
provided by district – not parent.

CASE

Calcasieu Parish (LA) Sch. (OCR
2005) – violation of 504 where district
required parents of student with
insulin-dependent diabetes to attend
field trips.
Accommodation and
Accessibility Issues

Before deciding on field trips, consider
whether facility or venue is accessible
for all students.
CASE

Chesterfield (VA) County Pub. Sch.
(OCR 2003) – district violated 504
when scheduled field trips to local
theater that was not wheelchair
accessible. Compounded mistake
when solution to poor access was to
carry students to second floor so they
could see the performance.
Notice for Field Trips

Failure to provide equal notice about
planned field trips can result in illegal
exclusion of disabled students and
deny equal opportunity to participate.
CASES

Mt. Diablo (CA) Unified School District (OCR 2005) – no
violation of 504 where district refused to provide
interpreter for hearing impaired parent who accompanied
child on field trip. 504 requires that a district provide
auxiliary aids and services that are necessary to ensure
that individuals with disabilities have equal access to
communication or participation in programs that are
intended to benefit them. Students with disabilities were
entitled to auxiliary aids and services for programs the
district operated for their benefit. And, parents were
entitled to auxiliary aids and services for programs and
activities operated for their benefit or the benefit of the
public, such as graduation ceremonies, parent-teacher
conferences, etc. Since field trips were offered for the
benefit of the student and not the parent, the district did
not violate the ADA or Section 504 by requiring the
parents to provide their own interpreters when they
wished to chaperone.
CASES

Half Hollow Hills (NY) Sch. Dist. (OCR
2005) – missing 1 out of 5 field trips
because nurse not available to
accompany student did not deny
FAPE to 5th grader with diabetes.
Parent unable to accompany student
and rejected district offer of medical
para.
CASE

Williamstown (MA) Pub. Sch. (OCR 2003) –
district failed to provide properly trained
aides to help CP student participate in field
trips and thus violated 504.

Unreasonable accommodation is one that
would require fundamental alteration of
nature or program – undue financial or
administrative burdens.
CASE

Nyack (NY) Unified Sch. Dist. (OCR 2004) –
district violated 504 when denied her
opportunity to participate in trip because of
diabetes. Not identified as student with
disability even though aware of surgery and
diabetes. Principal sent letter to parent
before trip saying “Due to [student’s] recent
surgery, current instability of her diabetes,
and the fact that there will be no medical
staff or supplies on hand. . . your child
WILL NOT attend the field trip.”
 Not allowed on field trip solely
because of those concerns. Student
clearly regarded as disabled by
district, even though not identified as
such.
 Surgeon had provided medical
clearance for trip and district still
requiring parent to accompany.

CASE

Troy (MI) Sch. Dist. (OCR 2003) – no
violation of 504 when second grader with
autism not allowed to participate in trip to
museum. Student placed in EMH
classroom but participated on limited basis
on general education classroom. Trip was
intended to supplement social studies
curriculum and student did not participate in
that curriculum. “Participation in the regular
curriculum was an essential requirement”
for the trip per OCR.
CASE

Sonkowski v. Bd. of Educ. (D. Minn.
2002) – no evidence of disability
based discrimination when student
with ADHD denied opportunity to
attend field trip to professional football
team practice facility. Student
purportedly planned to make
disrespectful comments to one of
players he was scheduled to meet.
District expressed legitimate
nondiscriminatory reason for
exclusion. Aware of his boast that he
would make disrespectful comment to
Vikings player.
 Green Bay Packers fan. Not allowed
to wear Packers jersey to class photo
session. Parent argued first
amendment.

Grading and Class
Rank
GRADING

Section 504 regulations generally
provide that students with disabilities
must be treated same as other
students with regard to grading
practices.
SPECIAL
CONSIDERATIONS
Use of alternate grading systems with
disabled students may be appropriate.
 Suspect if district discounts special
education courses or otherwise
depreciates special education course
grades on a categorical basis.
 Letter to Runkel (OCR 1996).


OCR – permissible for disabled
students to be graded differently in
situations where placement team has
determined the grading methodology
on an individual basis and
methodology is not result of
systematic different treatment on
basis of disability.

District should not have a grading
policy that applies only to disabled
students.


Disabled students who receive special
education modifications or accommodations
in regular classroom should be graded in
accordance with district’s generally
applicable grading policies. Schools cannot
modify grades on basis of student’s special
education status, alone.
Teacher should not reduce grade based
only on fact that student received
accommodations.
Grading and Attendance

In general, a grading policy that
penalizes students for poor
attendance is considered neutral
when applied to students with
disabilities. However, when absences
are disability-related, district must
make reasonable accommodation to
what appears to be neutral policy.
Modified Grading

Modified grades for students in
regular education with
accommodations permissible in some
circumstances.
When student receives content
changes in general education
curriculum.
 When made by IEP team.

WEIGHTED GRADING

OCR- district may use weighted grade
system to compile GPA standings to
compute class rank, honor roll status, honor
society, eligibility, etc. only if that weighted
system is based on objective rating criteria.
Level of difficulty and student’s level of
academic achievement must be taken into
account. Otherwise might discriminate
against students in the special education
curriculum.
Weighted Grading
If regular and special education
course differ only in manner in which
material is presented, OCR position is
that should be considered to have
same level of difficulty and grades
should not be weighted.
 Arbitrary or uniform designation of low
weights to special education classes
is discriminatory.


Weighted grading may be permissible
if each subject/course is analyzed
separately and assigned degree of
difficulty based on content. Need to
document process.
TRANSCRIPTS
Generally, districts should avoid sue
of any course designation that
appears to be used exclusively in
connection with special education
programs for students with disabilities.
 Labels such as basic, level 1,
practical, modified may be acceptable.
 Homebound, learning center –
suspect.

District should try to select terms that
also are used to describe programs it
provides for nondisabled students or
could be used for such programs.
 Notations on transcripts for
modifications to regular curriculum are
discouraged by OCR. Examples –
asterisks or other codes that reflect
modification to course content.

OCR suggests that if only use such
designations for disabled students,
that practice violates 504.
 OCR – district cannot modify grades
or make special designations on
transcripts to indicate that disabled
student has participate in regular
education with accommodations.

REPORT CARDS


OCR - District must use same type of report
card system to advise parents of disabled
and nondisabled students about childrens’
progress and to ensure provision of
comparable information in this regard.
OCR does permit different progress reports
for disabled students when district can
demonstrate that the alternative system is
at least as effective, including as frequent,
as the regular system.

OCR has also stated that it might be a
violation to include extra information in
the report cards of disabled students if
that information is seen as
stigmatizing.
HONOR ROLL


In general, district does not discriminate
under 504 if it takes position that placement
on honor roll is based on objective
standards of academic performance.
Use of uniform standards for measuring
academic achievement is permitted under
Section 504 provided the academic
distinctions are on a nondiscriminatory
basis.
HONOR ROLL

Use of weighted grades for purposes
of honor roll status may be allowed. If
honor roll is to award achievement
commensurate with ability, then
weighted grading would be
inconsistent with that stated purpose.
If honor roll is intended to honor
academic excellence, weighted
graded would be permitted.

Fact that some disabled students will
not be able to perform at such higher
levels does not violate 504. Letter to
Ickes (OCR 1988).

As example, students may be
required to perform on grade level or
meet certain grade requirements.
HONOR ROLL

Exclusion from honor roll on basis of status
as disabled, rather than on content of
curriculum, is discriminatory. Fordland (MO)
R-III Sch. Dist. (OCR 1988).

Even where district has legitimately
established honor roll criteria based on
objective grading of uniform academic
content cannot deny disabled students all
opportunities to participate in honors
programs.
CASE

Fort Smith (AR) Sch. (OCR 1993) – district
discriminated by excluding disabled
students from eligibility for honor roll where
grading system prohibited recognition of
academic achievement for disabled
students if they received ability/effort grade
rather than competitive grades; district did
not have alternative honors program
acknowledging superior performance by
students graded on that basis.
Diplomas
All students, including disabled
students, eligible to receive a regular
diploma but no guarantees. Letter to
Runkel.
 No guaranteed right for all disabled
students to receive diploma.
 Federal law does not require waiver of
all diploma requirements.


Under 504, district may use different
wording on diploma awarded to
disabled student but not in Missouri.

If student, however, meets all
graduation standards established by
state and LEA, any change in wording
on diploma is discriminatory.
Deviations from wording on regular
diploma for disabled student must be
based on objective criteria and not
because student is disabled.
 Cannot deny graduation with honors
to students just because of disability.
If course content is different, may be
permissible.

National Honor
Society
NATIONAL HONOR
SOCIETY

General nondiscrimination provisions
apply.

Where membership is based on
legitimate, objective criteria applied in
a nondiscriminatory manner, students
who do not meet eligibility criteria may
be rejected.
Systems Upheld - #1



Initial selection for potential membership is
by GPA.
Group of students informed of possible
eligibility by letter.
Eligible students submit resumes to
selection committee and notice provided to
relevant teachers requesting that they score
listed students in leadership, character and
service.




Teachers’ observations destroyed after
selection process.
NHS advisor assembles all materials in
sealed envelope to be distributed to
committee members.
Committee members assign scores based
upon NHS guidelines in the 3 areas scored.
Committee members do not meet or
discuss their scores.
Scores range from 1-4 (4 as highest).
Advisor averages committee member
scores. Minimum average score
eligible for induction – 3.2.
 Advisor does not assign scores.

System #2





Induction based on scholarship, leadership,
service and character.
Students must have 3.5 GPA
Required to have served in at least 2
elected or appointed leadership positions in
school, community or work
Required to be involved in at least two cocurricular activities
Required to have participate in at least two
community-related activities and two service
projects.
95% attendance required, but may be
waived with doctor statement that
student could not meet because of
illness
 All students who meet criteria are
admitted.
 After admissions process completed,
all applications destroyed.

CASES

Perry (OH) City Sch. Dist. (OCR
2003) – student failed to prove denied
NHS admission because of disability.
Attendance requirement waived and
student’s attendance not a
consideration. Basis for decision –
student not sufficiently active
participant in Spanish club to meet
NHS guidelines.

Letter denying application state that
membership required attendance and
participation in a variety of time-consuming
service activities. Committee questioned
student’s participation in Spanish Club
even though Spanish Club advisor signed
participation form. Established policy
allowed NHS advisor to confirm degree of
participation which she did and was told that
student was not active participant. Student
provided doctor excuse re: absences.
CASES

Humble (TX) Indep. Sch. Dist. (OCR 2005)
– deciding that special education student
with 4.0 GPA in “minimum graduation
program” not eligible for NHS membership.
Policies required 4.0 GPA in level and
above-level courses. Because IEP included
modified curriculum with courses that did
not meet the stated requirements, she did
not qualify.
CASES

Valley (CO) Sch. Dist. (OCR 2004) –
denying parent complaint that
daughter denied NHS membership
based on retaliation. Student did not
meet standards for leadership and
character. Did not qualify based
solely on scores she received during
selection process.
Before and After
School Programs
Does 504 Apply?




504 applies to non-educational services.
Extended day programs are covered.
Question of “otherwise qualified” – does
student meet the essential eligibility
requirement for receipt of services.
504 prohibits exclusion of qualified
individual with disability, on basis of
disability, from programs or activities
receiving federal financial assistance.

Covered entity has obligation to make
reasonable modifications/accommodations
in policies, practices or procedures when
those are necessary to avoid discrimination
on basis of disability unless public entity can
demonstrate that making those would
fundamentally alter the nature of the
services, program or activity or would
constitute an undue burden.

Must refrain from imposing or applying
eligibility criteria that screen out or tend to
screen out an individual with a disability or
any class of individuals with disabilities from
fully and equally enjoying any service,
program or activity, unless that criteria can
be shown to be necessary for provision of
service, program, or activity being offered.
OCR

Ripon Unified Sch. Dist. (OCR 2006)
Violation of 504 where district failed to
consider option of addressing
student’s behavior and social needs in
before/after school program.
 Program is a program of the District.
 Program is before/after school child
care program.




Program includes educational and
enrichment activities to complement school
day.
Student – 6 years old. Disability includes
inability to learn social norms and cues;
substantial impairment of his behavior and
social interactions.
Evaluation recommended 1:1 support of
behavior therapist in home and school.
Program good place to practice skills.
Parent requested support of behavior
therapist in program during ESY.
District refused because not an
educational setting.
 OCR – violation of requirement that all
evaluation information be carefully
considered and district arbitrarily
dismissed option of providing
therapist.

Consideration should not have been
curtailed solely because it was not a
traditional classroom or school time.
 Lesson – cannot simply dismiss the
option, but must consider. IEP team
should have considered that option.





District has agreement with program’s nonprofit parent company but program under
supervision of district.
Fees paid to district although collected by
program.
Agreement indicates that individuals
working in program are district employees.
District, at one time, did not charge rent for
use of facilities. Then charged percentage
of fees.
Under agreement, all students of
schools in which program located
eligible to participate.
No process existed for responding to
requests for modification based on
disability.
District should have known that
modification to program discipline plan
necessary for student to have equal
opportunity to participate.



No modifications made. Staff merely told
student to stop behavior. Behavior
continued and student expelled.
District offered no basis to OCR to conclude
that reasonable accommodation was not
possible or that student posed direct threat
to health and safety.
No evidence to support undue burden or
fundamental alteration position.
CASES

Broward County (FL) Sch. District (OCR
2005) – district did not discriminate against
10 –year-old disabled student when it
requested that parent find alternative
program for after school placement.
Student required supervision at all times
and needed help to function independently.
Choked other students, pulled, hair, threw
tantrums.
OCR – program clearly not equipped
to provide what student needed.
District provided transportation to
alternative program and provided 2:1
supervision.
 Operated at elementary school; open
to all students in grades K-5 enrolled
in regular school day.






Had guidelines for students with special
needs.
Purpose of program – after school care.
Self-supporting, based on fees collected
from parents.
Staff-student ratio is 1:20.
Student eligible to participate and was
allowed to enroll in program. Asked parent
to find alternate arrangements.


District – could not be included in program
with 1:20 ratio. Financial considerations not
primary basis for requested withdrawal.
Program was operating in the red.
OCR – money was a motivating factor in
decision. Hiring of additional aide to care
for student did not constitute undue financial
burden when all of resources available for
program were considered. Also not a
fundamental alteration.

But – 504 permits placing student at
program at different location so long
as same service is provided and
location does not disadvantage
parents more than experienced by
parents of nondisabled students. That
occurred here.
CASES

Murrieta Valley (CA) Unified Sch. Dist.
(OCR 2005) – district that dismissed 7-yearold from childcare program violated ADA
and 504. Failed to ensure staff working with
student was properly trained. Student’s
behavior problems escalated as result of
new staff and no training. Student’s
termination from program because he
fought with other student was
discriminatory.
CASES

Prince George’s County (MD) Pub.
Sch. (OCR 1999) – district’s eligibility
criteria for enrollment in before and
after care programs, while appearing
to be neutral, effective denied certain
students equal opportunity to
participate on basis of disability.
Policy screened out students placed
by district in educational programs
outside of neighborhood schools.
District’s reasons for criterion,
transportation and scheduling
conflicts, easily rebutted.
 District had not assessed student to
determine her ability in violation of
504 and ADA.

CASES

Shoreline (WA) Sch. Dist. (OCR 1996) –
district’s refusal to allow student with
multiple disabilities to participate in special
education after school recreational program
not discriminatory. Allowed on trial basis
and then concluded did not meet eligibility
requirements. Did not qualify; unable to
meaningfully participate even with
accommodations.



Program designed to provide recreational
activities to students with disabilities; not
intended to be extended day care program.
Not part of IEPs.
Eligibility requirements include – ability to
meaningfully participate, as determined by
coaching staff, and not have medically
determined health condition that would
preclude participation.
CASES

Roberts v. Kindercare Learning
Centers, Inc. (8th Cir. 1996) – requiring
a daycare center to provide a full-time
personal care aide for 4-year-old child
with multiple disabilities was not a
reasonable accommodation under the
ADA and would place undue burden
on facility.


Daycare center refused to admit child
unless parents provided the aide. Aide was
covered up to 30 hours per week under
Medicaid. Parents wanted daycare to
provide.
Court – to determine undue burden,
consider (1) nature and cost of action; (2)
financial resources of site involved, number
of persons employed at site, effect on
expenses and resources, legitimate safety
requirements necessary for safe operation;
or the impact otherwise upon
operation of the site; (4) if applicable,
overall financial resources of parent
company and number of facilities; and
(5), if applicable, type of operation of
parent corporation.



Historical unpredictability of aide services
and difficulty for center to find on-call, parttime help.
Hiring full-time aide would have resulted in
dollar loss per week to center, a substantial
financial burden when considered in light of
operating income.
Center was required to be independently
profitable; not rely on resources from
Kindercare.
CASES

Orr v. Kindercare Learning Centers (E.D.
CA 1995) – court granted preliminary
injunction that required center to readmit
student. The services necessary for 9-yearold student with developmental delays was
not a fundamental alteration in the type of
services it ordinarily provided; no evidence
that student’s presence jeopardized
student/teacher ratios. Court did not order
aide.
LESSONS LEARNED
Need for policies and procedures.
 Need for process to look at
reasonable accommodation.
 Need for written eligibility criteria.
 Statement of purpose of program and
whether self-supporting.
 Implementation of policies.

Playgrounds
PLAYGROUNDS

Section 504 states that no qualified
individual with a disability shall,
because a district’s facilities are
inaccessible to or unusable by
persons with disabilities, be excluded
from participation in, or denied the
benefits of services, programs or
activities.
ADA and 504

Two standards:
Existing facilities – 504 – those for
which construction began before June
3, 1977; ADA – January 25, 1992.
 New construction and alterations –
those constructed or altered after the
above dates.

Existing Facilities

Question is whether the district
operates each services, program, or
activity so that, when viewed in its
entirety, it is readily accessible to and
usable by individuals with disabilities.
Existing Facilities

504 does not necessarily require that
district make each existing facility or
every part of an existing facility
accessible if alternative methods are
effective in providing overall access to
the service, program, or activity.
New or altered facilities


The facility must be designed and
constructed in such a manner that it is
readily accessible to and usable by
individuals with disabilities.
New alterations – require that, to the
maximum extent feasible, the facility must
be altered in such a manner that the altered
portion is readily accessible to and usable
by disabled persons.
New Construction
Section 504 – requires facilities
constructed or altered after 6-3-77 but
before 1-18-91 to comply with
American National Standards Institute
(ANSI) standards.
 Facilities constructed or altered after
1-18-91 must meet Uniform Federal
Accessibility Standards (UFAS).

Integration

In addition to accessibility
requirements, district generally
obligated to conduct each of its
programs and activities in most
integrated setting appropriate to the
needs of qualified individuals with
disabilities.
Recreational Activities

District must specifically provide
recreational activities in such a
manner as necessary to afford
disabled students an equal
opportunity for participation. Because
these services and activities are part
of the education program, they must
be provided in the most integrated
setting appropriate.
Playground = Facility

A playground is a facility under 504
and ADA.

A playground facility includes both the
structure or equipment installed to
provide play activities, and the surface
surrounding such structure or
equipment.
Standards
United States Access Board involved
in a process of developing a standard
for the accessibility of playgrounds to
mobility-impaired individuals (as of
March 2006).
 Those guidelines are not part of the
enforceable ADA accessible
standards until adopted by the US
Dep’t of Justice.

OCR enforcement

Until standards adopted, district’s
compliance evaluated by considering,
as to each playground facility, under
review:

Whether the range of activities that is
accessible to children with disabilities
is equivalent to that which is offered to
children without disabilities.
Is the playground route accessible,
firm, stable and slip-resistant?
 Is the surface beneath the equipment
firm, stable, slip-resistant and
resilient?

OCR enforcement
Not every component or element of
the playground structure need be
accessible.
 Where the components provide
different types of play structure
activities, such as sliding, riding,
swinging or climbing, at least one of
each type of activity must be
accessible to children with disabilities.

OCR enforcement

OCR not currently enforcing as yet
unadopted standards.

If district utilizes those standards in its
construction, OCR will look to the
standards to see if satisfied.
Accessible Routes

OCR looks at:
date of construction or alteration.
 whether there are accessible routes to
enter the playgrounds.
 whether there are ramps, and if those
firmly connect to the playground.
 surface cover.

Accessible Routes

Under new construction standard,
there must be an accessible route
leading to accessible play structure
activities that is firm, stable and slip
resistant, and accessible surfacing
beneath the accessible activities that
is firm, stable, slip resistant and
resilient.
Accessible Routes

Examples of compliant surfaces:
Poured rubber
 Rubber Mats
 Soft Rubber
 Other pressed fiber and engineered
wood fiber and products

Accessible Routes


Don’t forget that you must maintain those
surfaces to have an accessible playground.
March 31, 2006, OCR case in California –
fiber on the rubber surface was uneven,
making it inaccessible. Not even passage
between the rubber mat and fiber. Students
sometimes throw fiber as play which
contributes to lack of uniformity. Needs to
be properly maintained.
District stated that playground
equipment was inspected monthly and
fiber levels were added to as needed.
 Grounds personnel look at fiber every
week and rake it smooth as needed.
 Site custodian checks daily for glass
and other debris.

Play Components
Analyze ground-level v. elevated play
components.
 Playground standards - If at least 50%
of elevated play components are on
an accessible route – which must
include at least 3 different play types –
then additional ground-level
components are not required.

Play Components
Standards – at least 50% of elevated
play components must be on an
accessible route.
 Elevated component is one reached
from above or below grade and is part
of a composite play structure. Under
the standards, the accessible route
must connect all entry and exist points
of accessible play components.

California Case

Not all new construction standards
were satisfied. There were 15
elevated activities; at least 5 ground
activities that were accessible and
integrated were required – not
satisfied.
Cases

Hazelton (PA) Area Sch. Dist., 17 IDELR
907 (OCR 1991) – district fell short of OCR
standards for newly constructed
playground. Not readily accessible to
children in wheelchairs. Even through
district funds were not used to construct the
playground, the district participated in the
planning, school property abutted the
playground, and it was intended for
students to use during recess.
Students using wheelchairs were
unable to access 80% of the
playground because of its stone
surface.
 District voluntarily agreed to make
modifications to bring playground into
compliance.

Cases

Marshall County (MS) Sch. Dist. – 44
IDELR 140 (OCR 2005) – OCR
received complaint about district’s
playgrounds. Only playground
serving K-4th grade students not
accessible. District purchased
wheelchair play-formed swing sets.
Agreed to install accessible route.
Cases

Salem Community Schools, 106 LRP
14646 (SEA Indiana 2002) – Child
complaint. 8 year old student in
wheelchair. Grant application to
purchase wheelchair swing and frame
denied. PT testified that playground
paved around perimeter. In center are
two areas with shredded tires.
Student can’t maneuver wheelchair
through ground cover. At IEP
meeting, parent stated concerns
about inaccessibility.
 Corrective action required.

Vocational
Programs
Section 504
May not discriminate if subject to 504.
 Vocational education programs are
not required to produce the identical
result or level of achievement for
disabled and nondisabled persons,
but must afford equal opportunity to
achieve the same result in the most
integrated setting appropriate.


May not have criteria or methods of
admission that have the effect of
discriminating on basis of disability.
IDEA


Vocational education is included in the
definition of special education. Therefore,
even though not all disabled students must
attend a vo-tech school, the LEA must
assure that all disabled students have the
right to vocational education if specified in
the IEP.
IEPs must be implemented by vocational
school.
Admissions

Bridgewater-Raynham Pub. Sch. (SEA MA
2006) – student stated claim that she was
denied FAPE by district’s failure tot admit
her to vocational program, that vocational
school may have wrongfully denied
admission due to absences that were
manifestation of disability and that it had
custom of failing to notify disabled students
of their application status.
Admissions

Northwest Kansas Area Vo-Tech School
(OCR 1989) – vocation school did not deny
admission to drug-addicted student
because of disability, but because student
was not qualified. Criteria for admission
included that student be 16 years old, have
vocational goal and be capable of benefiting
from instructional program. Drug counselor
recommended delay vo-tech training until
he set his priorities and developed a basis
for recovery.
Evaluations

School Dist. of Philadelphia (OCR
1992) – district violated 504 by failing
to conduct evaluations of all sped
students regarding needs in area of
vocational education. No evidence,
however, to indicate that special
education students were, as matter of
policy or practice, denied admission to
vocational programs.
LRE

Caddo Parish (LA) Pub. Sch. (OCR 1990) –
district followed proper evaluation
procedures in assessing individual needs of
disabled students for vocational education
services, but violated 504 by placing those
students in vocational programs at
segregated campus with demonstrating that
they were unable to benefit from regular
vocational education, with supplementary
aides and services.
Accommodations

Letter to Berger/Lonsdale (OSEP
1995) – decision as to whether
disabled student requires assistance
of aide in vocational education
program is to be made during IEP
process and must be based on
student’s individual needs.
Accommodations

Pocono Mountain Sch. Dist. (OCR
1991) _ district not required to further
modify program in HVAC for student
with MR who was unable to master
even the most basic skills necessary
for HVAC certification even with
assistance of special education
teacher and OT.
Other Issues

OCR Memorandum (OCR 1990) – even if
vocational education institute does not
administer all aspects of apprenticeship
program, it is responsible to ensure that the
program does not discriminate against
qualified disabled persons in the selection
or treatment of apprentices. Must obtain
assurances of nondiscrimination from
private organizations contracted and
maintain sufficient information to ensure
equal opportunity.
Other Issues

Harriman City (TN) Sch. Dist. (OCR
1986) district’s failure to give notice of
nondiscrimination policy and
grievance procedures and to eliminate
barriers to mobility impaired in
vocational education program violated
504.
Other Issues

Coffee County (GA) Sch. Dist. (OCR
1985) – district’s placement of high
school aged TMH and EMH students
in junior high school where no
interaction with age appropriate peers
and no opportunity to participate in
vocational education programs
violated 504.
Athletics
504 Regulations

A recipient that offer PE courses or
that sponsors or operates
interscholastic, club or intramural
athletics shall provide to qualified
disabled students an equal
opportunity for participation.
STATE ATHLETIC
ASSOCIATIONS

Pottgen v. MSHAA - upholding
association’s age rule for athletic
participation. Student over that age is
not an otherwise qualified person with
a disability. Age rule is an essential
eligibility requirement. Waiving it
would fundamentally alter nature of
program.
Criteria for Participation
Can have guidelines for eligibility and
continued participation.
 Must apply uniformly.
 Might need to consider waiver in
certain circumstances.
 Extracurricular generally not part of
FAPE unless . . .

CASES

Shelby County (AL) Sch. Dist. (OCR
2002) – student suspended 3 days
from practice which resulted in
dismissal from volleyball team.
Under district rules, 3 unexcused
absences from practices or meetings
resulted in ouster. District applied
policy uniformly.
CASES

Kern (CA) Union High Sch. (OCR 2003) –
student initially denied position of water boy
for football team because principal
expressed concern that he might not be
able to move fast enough to avoid being hit
on sideline. After IEP meeting, principal
consulted with coach who agreed student
could be water boy. As result, no 504
violation.
CASES

Little Axe (OK) Pub. Sch. (OCR 2002) – no
504 violation where student required to run
laps by softball coach to make up for
missed practices. Required of all team
members who missed practice. Policy was
distributed to all team members at start of
season. No evidence that disability
prevented student from running laps.
CASES

Maine Sch. Adm. Dist. (OCR 2002) – no
violation of 504 where student dismissed
from hockey team. District rules stated
student could be removed for remainder of
season if missed 3 unexcused practices or
2 unexcused games. Student missed 3
practices for reasons unrelated to disability.
District allowed him to continue to play in
violation of own rules. Then refused
permission to board bus because missed

school during day causing him to miss
2 games. Then dismissed from team.
No evidence treated differently from
other students on account of disability.
CASES


Moses Lake (WA) Sch. Dist. (OCR 2002) –
district offered appropriate accommodations
for cheerleader try-outs.
Marion County (FL) Sch. Dist. (OCR 2001)
– district agreed to furnish student effective
accommodations for future cheerleader
tryouts including opportunity to videotape
instructions and demonstrations.
CASES

Garden Grove (CA) Unified Sch. Dist. (OCR
2001) – although basketball coach treated
student differently, it was not because of
disability. Other members of team who
were not regular starts also experienced the
difference in treatment. Coach gave
different playing time based on level of skill
and quality of performance on court. Also,
insufficient evidence to support claim that
failure to provide suitably fitting uniform was
based on disability.
CASES

Wells-Ogunquit (ME) Sch. Dist. (OCR
2000) – no 504 violation where district
had across-the board policy of not
allowing any student to compete on
athletic teams if they did not submit
completed physical examination form.
No competition in track meets if did
not practice for 5 days before meet.