The ADA, IDEA,
and Section 504
in Education:
Understanding the laws, advocacy
strategies and current issues for our
children with disabilities
Laws:
Protection for
people with
disabilities
NCLB
No Child Left Behind / 2002
• A federal Education Law.
• For ALL students, with a focus on
traditionally “under-served” students.
• School accountability to increase school
performance and outcomes.
• Requirements for “highly-qualified”
teachers and paraprofessionals.
• Process to change school or get
remediation if school fails to meet
Adequate Yearly Progress (AYP)
FERPA
Family Educational Rights & Privacy Act
• A federal Education Privacy Law.
• For ALL students.
• Right to inspect and review
“any and all” records the district keeps.
Timeline in CA: within 5 days
• Right to request correction of records
that are inaccurate or misleading.
• Right to consent to disclosures of
personally identifiable information
contained in education records.
504
Section 504
of the Rehabilitation Act / 1973
• A federal Anti-Discrimination Law.
• Protects ALL people with a disability
that impairs one or more major life
activity (learning is one).
• Prohibits discrimination in ANY program
that receives federal dollars.
• Provides accommodations to remove
discriminatory barriers.
• In education, a “504 Plan” removes
barriers to learning and opportunities.
IDEA
Individuals with Disabilities
Education Act / 1975
• A federal Education Law.
• For students with at least one of 13
qualifying categories of disability.
• Who ALSO need specialized support and
instruction to benefit from education.
• Provides a “special education” plan: “IEP”
- specialized instruction
- related supportive services
• “IEP” must be individualized to meet a
student’s unique needs.
The ADA
The Americans with Disabilities Act
/ 1990
A civil rights law to prohibit discrimination
solely on the basis of disability in
employment, public services, and
accomodations.
Protects: Any individual with a disability who:
(1) has a physical or mental impairment that
substantially limits one or more life
activities; or
(2) has a record of such impairment; or
(3) is regarded as having such an impairment.
Note: the person must be qualified for the
program, service, or job.
The ADA
The Americans with Disabilities Act
/ 1990 (cont.)
• ADA provided additional protection in
combination with actions brought under Section
504. Reasonable accommodations are required
for eligible students with a disability to perform
essential functions of the job.
• ADA protections apply to nonsectarian private
schools, but not to organization or private
schools, or entities controlled by religious
organization;
• Applies to any part of the special education
program that may be community-based and
involve job training/placement. Also applies to
Childcare centers and recreation programs.
How do the ADA, 504
and IDEA relate to
each other?
The Americans with Disabilities Act of 1990
(ADA), the Individuals with Disabilities
Education Act (IDEA), and Section 504 of
the Rehabilitation Act of 1973 represent
three attempts to improve the living
conditions of those with disabilities, to
ensure equal access, and to promote inclusion.
Go to:
http://www.dredf.org/advocacy/comparison.html
For a comparison of these laws.
What is Section 504?
Section 504 covers disabled persons in
programs receiving federal funds:
- public schools explicitly, but also
- publicly-funded programs such as day care
programs,
- after-school programs and even some private
schools
To be eligible for services and to ensure a Free
and Appropriate Public Education (FAPE) and
protection against discrimination under Section
504, a student must have a physical or mental
impairment that substantially limits one or more
major life activities. [29 U.S.C. 706 (8)(B)]
**broader “physical disability” definition.
SECTION 504—
Leveling the playing field
A student is entitled to a Free and Appropriate Public
Education (FAPE)
• This can consist of special services and program
modifications
504 Plan
• Designed to reasonably accommodate the
student’s condition so that his/her needs are met
as adequately as the needs of students without
disabilities.
Provided in the Least Restrictive Environment (LRE)
--Removes Barriers, Provides equal access-EXP: Ramp into the school to access learning like
other students, Computer access so student can
“show” what she knows.
LEA REQUIREMENTS
♦ Recipients of federal monies must
provide FAPE
♦ Must provide regular or special
education
♦ LEA must appoint a “504 Coordinator”
♦ LEA must develop & implement
Section 504 policies and procedures
(LEAs may adopt IDEA procedures for
504.)
♦ LEA must provide parent/guardian
with procedural safeguards;
♦ Annually identify and locate all
students with disabilities (Child Find)
♦ Have Grievance Procedures
Free Appropriate
Public Education (FAPE)
Section 504/ADA
• Requires FAPE be provided to each student that
qualifies under Section 504;
• Defines FAPE as general education, special education
and related aids & services,
• Services must be individually designed and provided
so they meet the educational needs of the student;
• Students have the same access to all
programs, the same as a student
without disabilities
“504 Plan” describes
services, accommodations
& modifications
Students may receive services, accommodations
and modifications for “equal access” to educational
opportunities afforded all students.
Accommodations are program adjustments made to
remove disability-related barriers to full
participation in school: “leveling the playing field”
Academic modifications may be necessary even if
major activity of “learning” is not affected.
Ex: P.E. curriculum changes, school schedule
Nonacademic AND extracurricular activities are
included. Ex: field trips, athletics and assemblies.
ALL determined by student’s individual needs.
Services,
Accommodations and
Modifications
Accommodations for children with diabetes
might include:
• Ability to leave class when needed
• Free access to food and water
• Preferential seating
• Administration of health protocols in class
• Additional time to complete assignments
without penalty
• Ability to make up work missed to fulfill
health-related needs or doctor’s
appointments without penalty.
RELATED SERVICES
Examples of Related Services:
• Physical Therapy
• Occupational Therapy
• Counseling
• Assistive Technology
• Speech or Language Services
Relationship of Protective Laws
ADA
SECTION 504
IDEA
Special Education
School Focus
Community Focus
IDEA-eligible
students are
protected
by ALL these laws
just discussed.
A Student
with an IEP
may also need
accommodations
to prevent
discrimination.
IDEA: Disabilities
1. Autism
2.
3.
4.
5.
6.
7.
Deafness / HH
Deaf-Blindness
Hearing Impairment
Mental Retardation
Multiple Disabilities
Orthopedic Impairment
8. Other Health Impairment
9.
10.
11.
12.
13.
Serious Emotional Disturbance
Specific Learning Disabilities
Speech or Language Impairment
Traumatic Brain Injury
Visual Impairment / Blindness
Section 504: Impairment
Categories
•
•
•
•
•
•
•
•
•
•
•
•
HIV/AIDS
Tuberculosis
Arthritis
Asthma
Allergies
Diabetes
Obesity
Epilepsy
Heart Disease
Chronic Fatigue
*Pregnancy
Orthopedic
• *Special Education—Qualified
Students
• Conduct Disorder
• Temporary Disability
• ADD/ADHD
• *Drug and Alcohol
• Migraine Headache
• TBI—Traumatic Brain Injury
• Cerebral Palsy
• Cancer
• Multiple Sclerosis
*It depends
**THIS LIST IS A SAMPLE OF IMPAIRMENTS AND IS NOT AN EXHAUSTIVE
LIST
Section 504 vs. IDEA
SECTION 504
IDEA
Civil Rights Law
Educational Law
No Federal $$$$
Federal/State $$$$
No Consent to Implement Required
Consent Required
No Labels
Labels of Disability
Evaluations
Evaluations
Periodic Re-Eval
Re-Eval every 3 years
FAPE
FAPE
504 Plan
IEP
Placement/LRE
Placement/LRE
Discipline
Discipline
Section 504 is NOT
Special Education
Section 504
 The student must have a
physical or mental
impairment.
 The student’s disability must
prevent equal access to or
benefit from the school’s
programs or services.
 Evaluation using relevant
information from a variety of
sources. Decision by a group
of knowledgeable persons.
 Parent consent required
 “Reasonable” timelines
IDEA
 The student must have a
disability that falls into one
or more specific qualifying
conditions.
 The student’s disability
must adversely affect
educational performance.
 Full, comprehensive
evaluation, including
psychological evaluation.
 Parent consent required
 Strict timelines
Can’t Have Both…
It should be noted that students who
qualify for special education services
under IDEA will NOT automatically
qualify as a handicapped person under
Section 504.
A parent cannot turn down IDEA services
in place of Section 504 services.
504 EVALUATIONS:
*Review of Records
*Can be Formal
Evaluations like IDEA
*Parent Permission
must be given for all
Initial Section 504
Meetings
RECORDS INVOLVED COULD INCLUDE, BUT
NOT LIMITED TO:
– Formalized testing such a Dyslexia assessment
or outside evaluation information
– Dr. Diagnosis
– Current and past grades
– Teachers’ reports and notes
– Information from parents and other agencies
– State assessment scores or other school
administered test
– Observations, discipline records, attendance
records, RTI records
– Health records and adaptive behavior
information
Section 504 Team:
*Regulations require:
**a group of persons,
at least 2, including
those knowledgeable
about the child, the
meaning of evaluation
data, and the placement
options.
Section 504 Team:
*Parents are not
required;
*No maximum # of
people required;
*No guidance on the
level of knowledge
about the child that is
required
A Qualified Handicapped
Individual is a person who:
• Has a physical or mental impairment which
substantially limits one or more major life
activities;
• Has a record of such an impairment; or
• Is regarded as having such an impairment.
“Substantial” – Key Question to Remember: Does the
Student have an equal opportunity to participate in
And benefit from his/her education compared to nonDisabled peers?
ADAAA 2008 greatly reduced the
bar for Section 504 qualification
• It underscores Congress’ express
intent that “the question of whether
an individual’s impairment qualifies as
a disability should not demand
extensive analysis.” (P.L. 110- 325, §
2(b))
• An impairment can be a disability
even if episodic or in remission. ƒE.g.,
epilepsy or cancer. ƒ** if it meets the
“substantially limits” standard when
the impairment is active. (P.L. 110325, § 4).
Illustration of Regarded as
Disabled
Anna, a student with mild diabetes
controlled by medication, is barred by
the staff from participation in certain
sports because of her diabetes. Even
though Anna does not actually have an
impairment that substantially limits a
major life activity, she is protected
under Section 504 because she is
treated as though she does.
A Record of Impairment
For the purposes of protection:
EXAMPLES of individuals who have a
record of an impairment are persons
who have histories of mental or
emotional illness, learning disabilities,
asthma, heart disease, cancer, etc.
(who are recovering or managed by
medication) and students in special
education.
3 QUESTIONS:
1. Does the student have, regarded as
having, or has a record of having a
physical or mental impairment?
2. Does the impairment “substantially”
reduce or lessons a student’s ability to
access learning in the educational
setting because of a learning, behavior,
or health-related condition?
3. What major life activity does it
limit?
Section 504: Disability Defined
Physical or Mental Impairment**
Physiological disorder,
contagious disease,
cosmetic disfigurement
or anatomical loss in one
or more system:
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Neurological
Musculoskeletal
Respiratory
Cardiovascular
Reproductive
Digestive
Bowel *
Genito-urinary
Hemic
Lymphatic
Skin
Endocrine
Immune System ***
Normal Cell Growth
***
• Bladder ***
• Reproductive
Functions ***
• Substance Abuse
(recovering alcoholic or
addict*
Major Life Activities**
Mental or psychological
disorder including:
Major life activities
include:
• Mental retardation
• Organic brain
syndrome
• Emotional or mental
illness
• Specific learning
disabilities
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Self-care
Manual tasks
Walking
Seeing
Hearing
Speaking
Breathing
Sitting
Standing ***
Reaching
Thinking ***
Concentrating ***
Reading ***
Communicating ***
Interacting with
others
Learning
Working
Eating ***
Sleeping ***
Lifting ***
Bending ***
Record of
Impairment**
Regarded
Impairment**
The individual has:
The individual has:
• A history of
impairment
• An impairment not
limiting a major life
activity, but treated as
disabled by the
covered entity
• A record of having
been misclassified as
having an impairment
* Does not include current, illegal drug or alcohol abusers. Non-exhaustive list.
• No impairment, but
treated as disabled by
the covered entity
Disability determinations must be made
without considering mitigating measures.
• “Mitigating measures”: measures that
help correct or ameliorate an individual’s
physical or mental condition.
– Examples: medication, medical supplies, and
equipment, low vision and hearing devices,
prosthetics, use of assistive technology and
reasonable accommodations.
• Exception: ordinary corrective lenses that
“fully correct visual acuity or eliminate
refractive error,” as distinguished from low
vision devices that “magnify, enhance, or
otherwise augment a visual image.” (P.L. 110325, § 4)
Who is EXCLUDED
• ADAAA 2008 clarifies that minor and
transitory impairments are not protected
disabilities.
– Transitory: actual or expected duration of 6
months or less
– Minor: e.g., broken arm
• SEE NEXT SLIDE
Review on a Case by Case Basis
for State Assessment Purposes:
• A student may need a § 504 plan for
assessments ƒ
• HOWEVER, the school divisions should
ask: ™
– Is there another means of providing the child
with a broken arm the state assessment? ™
– Is there another testing window at a later
date? If so, test the child then.
• Remember Virginia’s requirement
that accommodation must be
provided in classroom to qualify for
testing accommodations.
Who is EXCLUDED
• Persons who are current drug users –
Senior Staff Memorandum, 17 EHLR 609 (1991)
OCR
• Additional exclusions - OCR Senior Staff
Memorandum, 19 IDELR 869 (1993)
– Transvestitism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity
disorders not resulting from physical
impairments, or other sexual behavior
disorders ¾
– Compulsive gambling, kleptomania, or
pyromania ¾
– Psychoactive substance use disorders
resulting from current use of illegal drugs
Section 504 Eligibility is NOT
Automatic, but may be considered IF:
• Suspension or expulsion is being considered and you
don’t have a basis to consider eligibility under
IDEA;
• Retention is being considered;
• A student shows a pattern of not benefiting from
the instruction being provided;
• A student is referred for evaluation but it is
determined not to do an evaluation under IDEA; OR
when a student is evaluated and is found ineligible
under IDEA;
• A parent requests evaluation for a
Section 504 plan;
Section 504 Eligibility is NOT
Automatic, but may be considered IF:
• A student is chronically absent due to medical/ health
issues;
• A student develops a medical condition that may need
help, especially a chronic health condition;
• A student requires more time for homework and inschool assignments;
• The student has substantial difficulty organizing,
planning, and completing assignments;
• The student is identified as “at risk” or exhibits the
potential for dropping out of school;
• A disability of any kind is suspected; or
• A new building or remodeling is being considered.
THE SECTION 504
PLAN
Issues for Team
Consideration
The following factors are considered by a
team knowledgeable about the student and the
disability:
– Evaluation results
– Section 504/ADA eligibility (remember the list was
expanded January 2009)
– The student’s unmet needs
– Services and/or accommodations based on eligibility
– Possible staff inservice
– Least Restrictive Environment (LRE)
– Remember, you can no longer consider mitigating
circumstances.
504 Accommodation Plan
Who creates it?
 Whoever works with the student (think outside the
box to include the bus driver, cafeteria staff,
lunch monitors) that might encounter a situation
where the impairment manifests itself.
 Consider all school environments and requirements.
 Get input from a variety of sources, including the
nurse, student, parent.
WHO GETS A COPY?
Each teacher serving the student
(don’t forget second semester
teachers)
Other school staff who will need to
implement provisions of the Plan (bus
drivers, lunch aides, nurse, etc.)
Student, if able to understand and
self-advocate
WHERE IS IT KEPT?
Cumulative file, so it is sent along
with other records when records are
requested by another school
A copy is sent to Department of
Exceptional Programs
WHEN IS IT REVIEWED?
Once a year
If classes are changed or added that
may have an impact on the Plan’s
appropriateness/effectiveness
If the impairment changes
significantly
If the building/class location
changes
Implementation within
the General Education
Environment
ACCOMMODATIONS
and
MODIFICATIONS
ORGANIZATION/MANAGEMENT:
• There may be a need to modify:
– Instructional day (i.e., allow more time to
pass in the hall; modify class schedule)
– Classroom organization/structure (i.e., adjust
student’s placement in classroom; reduce
external stimuli; change classroom
management style)
COMMUNICATION
• There may be a need to modify:
– Parent / student / teacher communications
(i.e., Journals, meetings, duplicate sets of
texts.)
– Staff communications (i.e., Building team
meetings, network with other staff, identify
resource staff)
– School / community agency communication
(i.e., assist in agency referrals)
POLICY AND PROCEDURES
• There may be a need to modify the school
policies & procedures to:
– Allow additional excused absences for health
reasons.
– Adjust transportation, parking arrangements.
– Approve early dismissal for service agency
appointments.
TEACHING STRATEGIES
• There may be a need to modify:
– Teaching methods (i.e., Adjust testing
procedures; individualize assignments; use
technology)
– Teaching materials (i.e., Use materials that
address student’s learning style; adjust
reading level of assignments)
STUDENT ENVIRONMENT
• There may be a need to modify:
– Classroom/building climate for health
purposes (i.e., use air purifier; control temper
ature accommodate specific allergies)
– Classroom/building to accommodate
equipment needs (i.e., develop evaluation plan
for students who use wheelchairs; schedule
classes in accessible areas)
STUDENT PRECAUTIONS
• There may be a need to modify building
health and safety procedures:
– For example:
• To accommodate special diets; and
• To administer medication appropriately.
– See: Specialized Health Care Procedures,
Virginia Department of Health and Virginia
Department of Education.
DISCIPLINE
The same protections
available to students
with disabilities under
IDEA are available to
students qualified
under Section 504.
EXCEPTIONS
• Students who are disabled solely by virtue of
alcoholism or drug addiction.
– These students are excluded from Section 504
consideration if they are current users.
• BUT -- Persons who have completed or
are participating in a supervised
rehabilitation program and continue to
refrain from abuse may be qualified for
Section 504.
An LEA may discipline a Section 504
student without applying due process
procedures if:
• The school is disciplining the student with
respect to the use or possession of illegal drugs
or alcohol; and
• The student is currently engaged in the use of
illegal drugs or alcohol; and
• The disciplinary action taken with respect to
the disabled student is the same as those taken
with nondisabled students in similar
situations.
UNDERSTANDING THIS PROVISION
• “Currently engaging in use” is quite narrow.
• In such cases, parents cannot resort to a due
process hearing under Section 504 to contest
the disciplinary action.
• NOTE: OCR distinguishes between use and
possession. “Possession” of illegal drugs or
alcohol at school does not automatically equate
with “current use” of drugs or alcohol.
BEHAVIOR IMPROVEMENT PLANS
• Individual BIP provisions supplant the use
of the regular discipline code.
• Failure to discipline students in
accordance with his/her BIP constitutes
a failure to properly implement the
Section 504 plan, which is a denial of
FAPE.
BEHAVIOR IMPROVEMENT PLANS
• Individual BIP provisions supplant the use of
the regular discipline code.
• Failure to discipline students in accordance with
his/her BIP constitutes a failure to properly
implement the Section 504 plan, which is a
denial of FAPE.
• A BIP ensures that a student with a disability is
able to maintain successfully the placement
that has been determined to appropriately
meet his educational needs.
A BMP is considered
a related service
under Section 504
according to the 6th
Circuit Court of
Appeals.
*See Morgan v. Chris L., 25
IDELR 227, 6th Cir. 1997.
FUNCTIONAL BEHAVIOR
ASSESSMENTS (FBA)
• FBA’s are not mandated by Section 504;
• They are mandated by MCPS Procedures;
• OCR believes that: A BIP developed without
conducting a FBA does not meet the
requirements of FAPE due to:
– Teams must develop a BIP on the behaviors being
exhibited by the student which then provided equal
access;
– Unless a Team determines the function of the
exhibiting behavior then a BIP that meets
the needs of the student cannot be
developed
FUNCTIONAL BEHAVIOR
ASSESSMENTS (FBA)
• FBA’s are not mandated by Section 504;
• They are mandated by MCPS Procedures;
• OCR believes that: A BIP developed without
conducting a FBA does not meet the
requirements of FAPE due to:
– Teams must develop a BIP on the behaviors being
exhibited by the student which then provided equal
access;
– Unless a Team determines the function of the
exhibiting behavior then a BIP that meets
the needs of the student cannot be
developed
MANIFESTATION
DETERMINATION
REVIEW
MANIFESTATION DETERMINATION
REVIEW (MDR)
• The school division must conduct a MDR before
suspending a student with a disability for more
than 10 days.
• Such a disciplinary action is considered a
significant change in placement, triggering the
re-evaluation requirements.
– 34 C.F.R. § 104.35(a); OCR Staff Memorandum, 16 EHLR 491,
OCR 1989; Broward County (FL) Sch. Dist., 36 IDELR 159 (OCR
2001).
MANIFESTATION DETERMINATION
REVIEW (MDR)
• Factors to consider when determining if there
is a “pattern” or removals:
– Length of each suspension;
– Proximity of the suspensions to each other;
– Total time the student is excluded from school.
• [Alachua County (FL) School District, 27 IDELR 961, OCR
1997].
MANIFESTATION DETERMINATION
REVIEW (MDR)
• Section 504 does not impose an obligation to
provide continuing services for properly
expelled students.
• However, it is discriminatory to not provide
services if services are provided in these
instances to nondisabled students.
• If the school division has adopted IDEA
requirements to comply with Section 504, IDEA
directs the school division’s obligations.
BUS SUSPENSIONS
• Section 504 parallels IDEA provisions that a
bus suspension counts as a removal if FAPE is
interrupted.
• According to OCR, only the school’s offer to
provide alternative transportation erases the
removal..
BUS SUSPENSIONS
• If the student comes to school on his/her own,
or the parent brings the student, and the
school does not offer an alternative
(reimbursement or alternative form of
transportation), OCR considers the student
removed from his placement that day even if
the student is there.
– See OCR 1991 Mobile County (AL) Sch. Dist. 18
IDELR 70
KEY POINTS
•
•
•
•
Accommodations that meets the need of the student
Reasonable Accommodations
Equal Access
Refusal to implement a 504 Plan is willful
discrimination and a Section 1983 Violation
• Current drug and alcohol use automatically cancels
504 protections
• Review MCPS 504 Guidelines
• FERPA Confidentiality provisions apply to
Section 504
KEY POINTS
• Students that move-in with existing
504 Plan should be implemented as
written. After period of “reasonable”
data collection time, can revise on MCPS
forms.
• Health Care Plans or Section 504 Plans?
• A 504 Plan can be a Health Care Plan
MCPS FORMS
• BE VERY SPECIFIC WHEN FILLING THIS SECTION OUT;
• AREA OF CONCERNS:
• Should NOT be the Dr. Diagnosis;
• All Interventions/Accommodations being used up to this point
should be listed and described, if necessary
• Evaluation Tool can be:
• Observations;
• Grades:
• Dr. Report or Diagnosis
• Parent provided testing;
• Be Specific when describing the findings
• Both Criteria need to be marked YES to be found Eligible;
• Make sure your evaluation data supports your answers;
• Make a note if MORE EVALUATION data is needed to make a
decision; Table the decision if more data is needed;
• THIS SECTION WILL BE CHANGED TO REFLECT A
PARAGRAPH FORMAT FOR DESCRIBING
SEVERITY AND DURATION
• RELATED SERVICES SECTION IS FOR PT, OT, SLI, AND BIP
SERVICES
CHANGES TO THE FORMS
• Permission to Conduct Initial Evaluation;
• Rating scales on Life Activities will be
paragraph format instead of a number
scale;
• More Data Needed section will be added
under Eligibility Determination Section
Questions/Dialogue