What does 504 mean to a School District?
September 30, 2014
Maiello Brungo & Maiello
1
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Every District must have a Section 504 Manual
to instruct staff how to implement
requirements of Section 504.
2
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How do I respond?
◦ Physician’s diagnosis requires a Section 504 service
agreement
◦ Exited from special education requires a Section 504 service
agreement
◦ Parent withdraws consent for special education required a
Section 504 service agreement
◦ Parent disagreement with a Section 504 evaluation requires
an independent educational evaluation at public expense
◦ Parent elects not to attend the Section 504 meeting requires
rescheduling the meeting at parental convenience.
3
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Section 504 of the Rehabilitation Act of 1973
Title II of The Americans with Disabilities Act
of 1990 (ADA)
The Americans with Disabilities Act
Amendments Act of 2008 (ADAAA)
IDEA
FERPA
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Pennsylvania School Code of 1949
Pennsylvania Nurse Practice Act
Pennsylvania Practical Nurse Act
Department of Health Guidelines Regarding
Administration of Medications (22 Pa Code,
12.41 Student Services)
Chapter 15
5
Section 504 is a part of the Rehabilitation Act of
1973 that prohibits discrimination based upon
disability. Section 504 is an anti-discrimination,
civil rights statute that requires the needs of
students with disabilities to be met as
adequately as the needs of the non-disabled.
6
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Local Educational Agencies (School District and
Charter Schools) that receive federal financial
assistance must comply with the implementation
regulations at 34 CFR Part 104.
“No qualified handicapped person shall, on the
basis of handicap, be excluded from participation
in, be denied the benefits of, or otherwise be
subjected to discrimination under any program of
activity which receives Federal financial
assistance. 34 C.F.R. §104.4(a)].
7
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To be covered under Section 504, a student
must be a “qualified” handicapped person as
per state and federal law, and must have a
disability) [34 C.F.R. §104.3(k)(2)]
8
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Definition of disability
◦ Prong 3 broken into three parts
 Physical or mental impairment
 Substantially limits
 Major life activity
9
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Congress directed that the definition of a
disability be “construed broadly and that the
determination of whether an individual has a
disability should not demand extensive
analysis”.
The 2008 amendment extensively broadened
the eligibility.
10
Significant Changes to K-12 Section 504
1.
2.
3.
4.
Expansion of Major Life Activities
Treatment of impairment if it is episodic or
in remission
Mitigating measures rule
New definition of Substantial Limitation
11
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Bending
Breathing
Caring for one’s self
Communicating*
Concentrating*
Eating
Hearing
Learning
Lifting
Performing manual
tasks
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Reading*
Seeing
Sleeping
Speaking*
Standing
Thinking
Walking
Working
* Added in ADA
Amendments of 2008
12
Major life activities shall include:
The operation of major bodily functions
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Bladder
Bowel
Brain
Circulatory
Digestive
Endocrine
Immune system
Neurological
Normal cell growth
Respiratory
Reproductive functions
13
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ADAAA says, “An impairment that is episodic
or in remission is a disability if it would
substantially limit a major life activity when
active.”
•seasonal allergies
•migraines
•seizure disorder
14
What are they?
 Something that limits the impact of the
impairment
 Something usually provided by the parent
 Something that a student must use in the
school setting
i.e. medication, equipment, materials
15
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Temporary disability–an impairment of less
than 6 months
Health Plans-mitigating measures?
Impairments that consistently meet the
criteria for a Section 504?
16
Definition:
“…Significantly restricted as to the condition
manner or duration under which an individual
can perform a particular major life activity as
compared to the condition, manner , or
duration under which the average person in the
general population can perform in the same
major life activity….”
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◦ Request including
 Child should be identified as a protected
handicapped student, no longer be,
request a modification
 Include relevant medical records
 Reasons why
 Related aids, services, or
accommodations requested
 Specific modifications
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 The district shall within 25 school
days
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Send written response
Native language
Mode of communication
Request granted/denied
Denied/notice to parents
Right to meet with school officials
Procedural safeguards
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Request for consent sent in writing
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Identify the procedures and types of tests
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Inform parents of their rights
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The district should
◦ Establish standards and procedures for the
evaluation and placement, including
 Tests and other evaluation material
 Information from a variety of sources including
aptitude and achievement tests, teacher
recommendations, physical condition, social or cultural
background and adaptive behavior
 Medical reports related to physical/mental impairment
 Parent information
21
District should have
◦
policies and procedures
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current and updated forms
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a Section 504 coordinator who is up-to-date
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informative sessions with teachers and staff
22
Evaluations: District should
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receive written parental consent
provide the parent with procedural safe
guards
establish a group of persons who know the
child
look at a “variety of sources”
native language, if necessary
23
◦ Procedures should include provisions for periodic
reevaluations of students
◦ No timeline for conducting reevaluations is included
in law
◦ BUT suggested-”…procedure consistent with the
Education for the Handicapped Act is one means of
meeting this requirement.”
24
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§ 300.303 Reevaluations.
(a) General. A public agency must ensure that a
reevaluation of each child with a disability is
conducted in accordance with §§300.304 through
300.311—
(1) If the public agency determines that the
educational or related services needs, including
improved academic achievement and functional
performance, of the child warrant a reevaluation; or
(2) If the child’s parent or teacher requests a
reevaluation.
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(b) Limitation. A reevaluation conducted
under paragraph (a) of this section—
(1) May occur not more than once a year,
unless the parent and the public agency agree
otherwise; and
(2) Must occur at least once every 3 years,
unless the parent and the public agency agree
that a reevaluation is unnecessary.
(Authority: 20 U.S.C. 1414(a)(2))
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District must conduct an evaluation
Neither the Amendments Act or Section 504
obligates a district to provide aids that the
student does not need
The student is still a student with a disability
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22 PA Code Chapter 15-15.7
◦ In writing-no oral agreements
◦ Beginning date-ending date-modification date
◦ Related aids, services accommodations
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BEC - Implementation of Chapter 15
◦ Identifies the duties of the LEA
◦ Sample forms
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Both the LEA and the parents must sign off on
the agreement plan
Reevaluations may be conducted “consistent
with the Education for the Handicapped Act
…” as a way of meeting this requirement.
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Parent’s consent is required for the initial
evaluation but not for the reevaluation.
Section 504 does not require that the
evaluation be conducted by a team but by a
group of persons knowledgeable about the
child, evaluation data, and placement
options.
Section 504 gives no statement regarding a
group meeting to determine disability or
placement however does require that a group
of persons make the placement decisions.
30
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34 CFR 300.300(b)(4) A parent may revoke
consent in writing for his or her child’s
receipt of special education services after the
parents’ child was initially provided special
education and related services…..”
A student is not entitled to a Section
504/Chapter 15 service agreement for
services, accommodations or modifications if
parents revoke consent for special education
programs and services.
31
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Either party can use procedural safeguards to
resolve dispute
◦ File a written request for assistance from PDE
◦ PDE will investigate and respond with in 60 calendar
days
◦ Informal conference within 10 school days
◦ Formal due process hearing
32
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1.
Under Section 504
Districts are not required to fund independent
evaluations
OCR indicated…Districts should consider independent
evaluations provided by parents when interpreting
evaluation data. “The results of an outside independent
evaluation may be one of many sources to consider.
Multi-disciplinary * committees must draw from a variety
of sources in the evaluation process so that the possibility
of error is minimized.”
*Group of persons…..
33
504/ADA/15
IDEA/14
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Procedural Safeguards
Procedural Safeguards Notice
Judicial intervention
Administrative process 1st
Standards/Procedures
Timelines
Accommodations
Modifications
Three prongs
Two prongs
Major life activities
13 categories
Standards/procedures
IDEA/Chapter 14 process
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504/ADA/15
IDEA/14
NO
Goals
Related Aids
Related services
Supplementary aids and services Supplementary aids and services
Reg Ed certificate
Sp Ed certificate
NO
Transition
NO
IEE
Physical/mental
Sp Ed + SDI
NO
Short term objectives
35
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Issues with service dogs
Increased role of the school nurse
Increased needs for training, communications
and policies
Rethinking eligibility i.e. mitigating measures
Pennsylvania Guidelines for Management of
Food Allergies
36
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A dog trained to do work or perform tasks for
the benefit of an individual with a disability.
Can only ask two questions:
 What is the specific task that the dog will do?
 Is the dog necessary?
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Invite them to be a member of the group that
determines disability and service agreement
Make sure there are procedures on
administering medications
Be careful in the delegation of duties
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Complicated plans lead to comprehensive
communications
Stakeholders should be
◦ Aware of procedures
◦ Trained as necessary
◦ Familiar with the service agreement
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Review the information from ADA Amendments
Act of 2008
Understand your Child Find requirements
Make sure parents are aware of their rights
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Child’s dependence on wheelchair triggers
duty to evaluate under 504.
Aurora Public Sch. (CO) (2013)
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If District believes a first step is to address
child’s problem behaviors through
classroom-level intervention and keeps a
close eye to determine if further formal
assessments are necessary – no violation of
Section 504.
Demarcus L. v. Bd of Ed of City of Chicago
(2014)
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A District wrongly assumed that a student
with a mood disorder did not need to be
evaluated for special education eligibility
because he never had academic or
disciplinary issues, even though the student’s
angry behavior resulted in removal from
school and demonstrated a need for
psychiatric treatment.
Barnwell Sch. Dist. (S.C.) (2013)
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How often has student accessed
accommodation?
Why would you add accommodations in high
school?
Documentation, documentation,
documentation! TO add and to remove.
Role of counselors – Annual reevaluations
Medical update – annually – ask v. demand
44
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District-Initiated Evaluation As a ADA
Protected Disabled Student
Annual Notice to Parents
Procedural Safeguards
Service Agreement
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District Section 504 Manual!
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46
Section 504 Agreement is
NOT A CONSOLATION PRIZE!
47
Direct to federal court bypassing due process.
Financial Risk to District greater than due
process. Monetary damages > $500,000
Remedies: ongoing educational services,
compensatory education, tuition
reimbursement, expert witness fess, may
allow attorney’s fees.
48
Parents of two autistic children alleged denial
of FAPE and prevailed under IDEA. Parents
then filed suit under 504 and the Court found
that failure to offer a valid IDEA program may,
but does not necessarily, violate the section
504 duty. Standards are different and case
had to be remanded.
49
A student with ADHD was required to receive
504 services because he was entitled to an
education designed to meet his individual
educational needs as adequately as the needs
of non-handicapped persons are met.
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October 11, 2012
Third Circuit Court of Appeals held that claims
for compensatory damages under Section
504 are limited by the two year statute of
limitations of IDEA.
51
High schoolers with hearing disabilities with
IEPs alleged that the District had an
obligation under Title II of the ADA to provide
them with a word-for-word transcription
service.
Major case that found that compliance with
IDEA does not doom all 504 claims.
52
District did not discriminate against a student
with a severe tree nut allergy in violation of
Section 504 finding that the District had
offered reasonable accommodations and was
not deliberately indifferent to the parents’
claims of peer harassment. Also concluded
that the District did not retaliate against the
parents when a truancy petition was filed
after parents withdrew student from school.
53
McCurtrey v. St. Charles School District
(MO) (June 6, 2014)
Student alleged 7 yrs of isolation, lack of
education and emotional distress; seeking
$500,000.
•Electrical shocks from hearing devices.
•CART – transcribes spoken words to text
•Forced to skip 8th grade and go to 9th grade
AWAITING DECISIONS
A Creighton Medical Student did not prevail
because discrimination was not intentional
but court awarded attorney fees of $449,000.
54
A teacher documented with emails and staff
testimony that 504 plan was followed and
District prevailed.
English teacher was able to prove she properly
implemented 504 plan through evidence of
her email communications with parent!
DOCUMENTATION!
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In District’s best interest to periodically verify
that its educators review and understand
what services they must provide under the
504 Agreement.
Here district did not realize a music teacher
failed to provide student with adequate
printed materials required by 504. District
immediately remedied and complaint
dismissed.
56
Parent of a teenager with ADHD and substance
abuse problems could not recover the cost of
student’s placement in a residential treatment
facility. District offered student FAPE with
highly structured services and resources
within the school setting.
Substance abuse has no connection to
student’s disability.
57