Exhaustive Section 504 Boot Camp Patrick T Andriano

Exhaustive Section 504 Boot Camp Patrick T. Andriano Reed Smith LLP 901 E. Byrd Street Suite 1700 Richmond, VA 23219 804 -3426 pandriano@reedsmith. com

INTRODUCTION: THE HISTORY OF SECTION 504

Brown v. Board of Education, 347 U. S. 483 (1954). § Issue: doctrine of “separate but equal. ” § Supreme Court declared unconstitutional state laws establishing separate public schools for black and white students. § According to the Court, separate educational facilities are inherently unequal.

1972: The Framework for Section 504 § Pennsylvania Association for Retarded Children (PARC) v. Pennsylvania, 343 Fed. Supp. 279 (E. D. Pa. 1972). § US district court declared unconstitutional a state statute excluding retarded students from public education. § Mills v. Board of Education of District of Columbia, 348 F. Supp. 866 (D. DC 1972). § US district court extended the doctrine to all students with disabilities.

Congressional Actions § 1973: Section 504 of the Rehabilitation Act (Section 504). § 1975: Education for All Handicapped Children Act (now the IDEA). § 1990: Americans with Disabilities Act (ADA). § 2008: ADA Amendments Act (ADAAA).

The Language of the Law Section 504, as amended, provides in pertinent part, that: No otherwise qualified individual with a disability in the United States. . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. . 29 U. S. C. § 794(a).

Any program or activity that receives federal funding cannot, because of the person’s disability, do the following: § Exclude the individual from participation in the program or activity; § Deny the individual the benefits of the program or activity; or § Subject the individual to discrimination in that program or activity.

IDEA Section 504 ADA Legislation Type: Funding Act Civil Rights Act Same as § 504 Original Passage: 1975 1973 1990 Amendments: 1986, 1990 1997 2004 1990, 2008 Coverage: Students pre-K-12 • • • students -postsec. employees facilities K Same as § 504 FAPE: Special ed • Related services Special or regular ed • Related services Same as § 504 Administering Agency: OSEP, SEAs OCR, EEOC, DOJ Eligibility Definition: 2 essential elements 1. listed disability 2. need for spec. ed 3 essential elements: 1. impairment 2. major life activity 3. Substantial limitation Same as § 504

extra-curricular activities facilities physical impairments employees mental impairments temporary IDEA parents

504 COORDINATOR AND NONDISCRIMINATION POLICY

Miscellaneous Responsibilities § LEAs must designate an individual(s) who is responsible for coordinating its Section 504 and ADA compliance efforts. [34 C. F. R. § 104. 7] § LEAs must disseminate to the public statements of its nondiscrimination policy. Further, this statement must be included on all recruitment and other general information materials published by the LEA. [34 C. F. R. § 104. 8] § Recommendation: include this info in school handbooks and on the division’s Web site.

CHILD FIND REQUIREMENTS

Child Find Program § A child find program must be in place. § Must annually identify and locate every qualified disabled person residing in the jurisdiction who is not receiving a public education and to take appropriate steps to notify them and their parents or guardians of the school system’s duty. [34 C. F. R. § 104. 32]

The Referral Process § The Section 504 regulations do not contain referral procedures. § Recommendation: use your IDEA referral process.

504 TEAMS

504 Team § A group of persons knowledgeable about: § the student, § the evaluation data, and § the placement options.

504 Team Decisions For all 504 team decisions: § Draw upon information from a variety of sources; § Ensure that information obtained is documented and considered; and § Decision must be made by a group of persons knowledgeable about the student, the evaluation data, and placement options. [34 C. F. R. § 104. 35(c)]

EVALUATION AND REEVALUATION REQUIREMENTS

The Evaluation Process § An evaluation must be conducted prior to an initial placement into a regular or special education program and prior to any subsequent significant change in placement. § “Evaluation” does not necessarily mean “testing. ” § Since specific or highly technical eligibility criteria are not part of the § 504 regulations, formal testing is not required to determine eligibility. [Letter to Williams, 21 IDELR 73 (OCR 1994)]

The Evaluation Process § “Evaluation” refers to the gathering of data or information from a variety of sources so that a 504 team can make the required determinations. § Common sources of evaluation data for eligibility are: Ø Grades Ø Adaptive behavior and disciplinary referrals Ø Attendance records Ø Health information/physical condition Ø Social and cultural background and language surveys Ø Aptitude and achievement tests Ø Parent/guardian information Ø Teacher comments and recommendations

Evaluation Standards and Procedures (if formal testing is pursued) § Test materials must be validated and administered by trained personnel; § Test materials must be designed to assess specific areas of educational need, and cannot merely be a general measure of intelligence; and § When a test is administered to a student with impaired sensory, manual, or speaking skills, the test selected and administered should measure the student’s aptitude or achievement level rather than the student’s impaired sensory, manual, or speaking skills. [34 C. F. R. § 104. 35(b)]

Evaluation Timeline § The Section 504 regulations do not contain a specific timeline for conducting evaluations. § Recommendation: complete within a reasonable period of time (e. g. , complete within 65 business days).

Parental Consent § The Section 504 regulations do not require parental consent to evaluate a student. In spite of this fact, it is recommended that parental consent always be obtained before administering any formal assessment. A review of records would not require parent permission. Ø But note: According to one OCR guidance letter, parental consent is required for initial evaluations and placement only. [Letter to Zirkel, 22 IDELR 667 (OCR 1995)]

Parental Participation § LEAs are not required to conduct an evaluation upon parental demand. If an LEA does refuse to evaluate, however, the LEA must inform the parents of their due process rights. [Letter to Mentink, 19 IDELR 1127 (OCR 1993)] § The regulations do not require parental participation in eligibility and placement meetings. However, inviting parents to participate in these meetings is best practice and is encouraged.

The Reevaluation Process § Must “periodically” reevaluate eligible students. § Tip: A reevaluation once every three years is likely sufficient.

SECTION 504 ELIGIBILITY

Qualified Individuals § An individual with a disability means any person who: § has a physical or mental impairment which substantially limits one or more of such person’s major life activities; § has a record of such an impairment; or § is regarded as having such an impairment. [34 C. F. R. § 104. 3(j)]

Qualified Individuals § An individual with a disability means any person who: § has a physical or mental impairment which substantially limits one or more of such person’s major life activities; § has a record of such an impairment; or § is regarded as having such an impairment.

Qualified Individuals § An individual with a disability means any person who: § physical or mental impairment § substantially limiting § major life activity

Physical or Mental Impairment § physical or mental impairment means: § Any physiological disorder or condition, cosmetic disfigurement or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or § Any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. [34 C. F. R. § 104. 3(j)(2)(i)]

Major Life Activities: § eating § caring for oneself § sleeping § performing manual tasks § standing § walking § lifting § seeing § bending § hearing § reading § speaking § concentrating § breathing § thinking § learning § communicating § working § operation of major bodily functions

Major Life Activities § In addition, the Amendments Act provides that major life activities also include the operation of a “major bodily function” including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. [42 U. S. C. § 12102(2)] § The Amendments Act expressly made this list of examples of major life activities non-exhaustive.

Substantially Limiting § This term is not defined in the statute or the regulations. § Letter to Mc. Kethan, 23 IDELR 504 (OCR 1994). OCR leaves the determination of whether a particular impairment substantially limits a major life activity up to the school division.

Substantially Limiting § Although the term “substantially limits” is undefined, the ADA Amendments Act includes several provisions which impact the way that the “substantially limits” prong of the definition is applied. § The term “substantially limits” should not be construed to require “an inappropriately high level of limitation. ” [42 U. S. C. § 12101(b)(5)] § The threshold coverage question of whether an individual’s impairment “substantially limits” a major life activity “should not demand extensive analysis. ” [Id. ]

Substantially Limiting § The “determination of whether an impairment substantially limits a major life activity shall also be made without regard to the ameliorative effects of mitigating measures. ” [42 U. S. C. § 12102(4)(E)] § This provision is intended to eliminate the situation created under prior law in which impairments that are mitigated did not constitute disabilities but were the basis for discrimination.

Substantially Limiting § An individual who, because of the use of a mitigating measure, has experienced no limitations, or only minor limitations, related to the impairment may still be an individual with a disability, where there is evidence that in the absence of an effective mitigating measure the individual’s impairment would be substantially limiting.

Mitigating Measures: § Oxygen therapy equipment and supplied § Medication § Assistive technology § Medical supplies, equipment, or appliances § Reasonable accommodations § Low-vision devices (not including ordinary glasses and contact lenses) § Auxiliary aides or services, including interpreters for the hearing impaired and readers for the visually impaired § Prosthetics § Hearing aides, implants, and devices § Mobility devices § Learned behavioral or adaptive neurological modifications

Substantially Limiting § Example: a student with diabetes or epilepsy whose condition is completely controlled with medication could have a disability even though he or she is not limited by the condition while on the medication. § So, when evaluating whether a student is eligible under Section 504, consider whether that student would be substantially limited in the absence of medication or other mitigating measures.

Substantially Limiting § The Amendments Act provides that an impairment that substantially limits only one major life activity need not limit other major life activities to be considered a disability. [42 U. S. C. § 12102(4)(C)] § Thus, a student with an impairment such as ADHD, for example, who is substantially limited only in concentrating and in no other activity would, by definition, have a disability.

Substantially Limiting § The Amendments Act directs that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. [42 U. S. C. § 12102(4)(D)] § For example, a student with cancer that is in remission likely has a disability, even though that student is not currently limited.

Substantially Limiting § So, you must now consider whether the student is (1) presently substantially limited; (2) substantially limited when mitigating measures, such as medication, are not used; or (3) substantially limited when an inactive condition, such as cancer, is active. § If the student is substantially limited in one of these three ways, then the condition meets the substantially limited prong of the test.

Substantially Limiting § The primary purpose of the Amendments Act is to make it easier for people with disabilities to obtain protection under the ADA (and Section 504). § As a result, schools will now have more students who qualify under Section 504 than prior to 2009.

Substantially Limiting § The definition of disability under the Amendments Act does retain the requirement that the student be substantially limited. § According to OCR, in its FAQ document, the determination of substantial limitation must still be made on a case-by-case basis and must be made by a group of knowledgeable people drawing upon information from a variety of sources.

Substantially Limiting § “Substantially limits” means “an important and material limitation. ” [Letter to Mc. Kethan, 23 IDELR 504 (OCR 1994)] § “Substantial” obviously means a higher degree of limitation than minor or moderate. § Tip: As a frame of reference, compare the individual’s performance of a major life activity to the performance of the same major life activity by “most people in the general population. ” §.

Recommendation Follow these steps during eligibility: 1. Determine whether a physical or mental impairment exists. 2. Determine if any major life activities are impacted. If so, identify which one(s) will be discussed. 3. Determine if there is a substantial limitation of the identified major life activity or activities.

Recommendation § Create an eligibility form that makes 504 teams address all of the above eligibility requirements and document their decisions.

Qualified Individuals § An individual with a disability means any person who: § has a physical or mental impairment which substantially limits one or more of such person’s major life activities; § has a record of such an impairment; or § is regarded as having such an impairment.

§ The second and third prongs of the eligibility definition: qualification under one of these prongs will typically not require the development of a Section 504 plan.

“Has a record” of a physical or mental impairment a. This includes “persons who have a history of a handicapping condition but no longer have the condition, as well as persons who have been incorrectly classified as having such a condition. ” [34 C. F. R. § 104 Appendix A, Subpart A(3)] b. Examples of the first group are persons with histories of mental or emotional illness, heart disease, or cancer. c. An example of the second group is a person who has been misclassified as mentally retarded. Id.

“Regarded” as having a physical or mental impairment a. This group consists of persons who do not meet the definition of being disabled but are perceived and treated by others as being disabled. Id. b. Examples of this group are persons who walk with a limp or persons with disfiguring scars. Id.

The second and third prongs of the disability definition prohibit discrimination against individuals who are not currently disabled or never were disabled, but are treated as if they are disabled. [OCR Senior Staff Memorandum, 19 IDELR 894 (1992)]

However, the second and third prongs cannot provide a basis upon which the requirement of free appropriate public education (FAPE) is triggered. Id. a. In order to be entitled to FAPE and, thus, a 504 Plan, a student must have a physical or mental impairment that is substantially limiting a major life activity. The second and third prongs protect the student against discrimination but do not require identification or the development of a plan.

Qualified Individuals § An individual with a disability means any person who: § has a physical or mental impairment which substantially limits one or more of such person’s major life activities; § has a record of such an impairment; or § is regarded as having such an impairment.

Temporary Disabilities § A student with temporary disability (e. g. , burns, broken limbs, short-term illness, etc. ) might be eligible under Section 504. § Temporary disabilities must be resolved on a caseby-case basis, taking into consideration the duration of the disability and the extent to which it limits a major life activity.

Persons Excluded From Eligibility An individual who is currently engaging in the illegal use of drugs is excluded from eligibility. There are 3 exceptions for individuals no longer engaging in drug use: § Former users; § Participants in a supervised rehabilitation program; and § Persons erroneously regarded as engaging in the use of drugs.

The term “individual with a disability” also does not include individuals who claim disability on the basis of: § Homosexuality or bisexuality; § Sexual behavior disorders; § Compulsive gambling, kleptomania, or pyromania; or § Psychoactive substance use disorders resulting from current illegal drug use. [29 U. S. C. § 705(20)(E), (F)]

Dual eligibility under Section 504 and the IDEA § Students who do not meet IDEA’s eligibility criteria are not automatically eligible for Section 504 simply because they were determined to be ineligible under the IDEA. They must still meet Section 504’s eligibility criteria. [Letter to Veir, 20 IDELR 864 (OCR 1993)] § If a student is eligible under the IDEA, the student’s needs must be addressed in an IEP. A separate Section 504 Plan should not be developed. [OCR FAQ Document]

Dual eligibility under Section 504 and the IDEA § Parents cannot choose between Section 504 and IDEA eligibility. [Letter to Mc. Kethan, 25 IDELR 295 (OCR 1996)] § LEAs cannot opt to provide services and accommodations under Section 504 when the student is eligible under the IDEA. [Yankton Sch. Dist. v. Shramm, 93 F. 3 d 1369 (8 th Cir. 1996)]

504 PLANS

Free Appropriate Public Education (FAPE) § The 504 regulations do not mention “accommodations” or a “ 504 Plan. ” § Rather, they only require that the school division provide each eligible student with FAPE, which is defined as “regular or special education and related aids and services. ” [34 C. F. R § 104. 33(a). ]

Free Appropriate Public Education (FAPE) § FAPE must be provided to qualified individuals who have a physical or mental impairment that substantially limits a major life activity; § FAPE is defined as regular or special education and related aids and services that: § “are designed to meet individual educational needs of [disabled] persons as adequately as the needs of [nondisabled] persons are met. ”

Free Appropriate Public Education (FAPE) FAPE has several distinct parts: 1. It is education provided at no cost to the parents; 2. It is designed to provide educational benefit to the student; and 3. It is provided in the environment that affords the greatest exposure to non-disabled peers.

504 Plan § Implementation of an IEP in accordance with the IDEA will satisfy FAPE requirements, but it is not required. § A written document, called a 504 Plan, is suggested in order to document an LEAs compliance with Section 504 requirements.

504 Plan § The plan should be limited to those accommodations that are necessitated by the identified impairment, not just any accommodations that would benefit the student. § The eligible student is also entitled to any necessary related services as part of FAPE.

504 Plan Suggested content: § Identifying the person(s) responsible for implementation. § Specifying necessary accommodations and related services. (Be clear and precise!) § Listing approximate time for review. § Providing a space at bottom for parent(s) to acknowledge receipt of plan and receipt of procedural safeguards notice.

504 Plan Things to Avoid: § A checklist menu of accommodations. • Leads to over-identification. • Does not provide the requisite specificity. § Overdoing testing accommodations. • High-stakes testing are a motivation. • Testing accommodations should not be the basis for eligibility. • Focus instead on effective long-range interventions.

Reminder: 504 Decisions For all 504 team decisions: § Draw upon information from a variety of sources; § Ensure that information obtained is documented and considered; and § Decision must be made by a group of persons knowledgeable about the student, the evaluation data, and placement options.

Recommendations § Create a 504 plan form that 504 teams can use to document their decisions and satisfy the above requirements. § Meeting minutes are often inadequate. So, while not required under Section 504, consider the use of prior written notice or similar document for documenting all proposed and refused actions.

PROCEDURAL SAFEGUARDS

Procedural Safeguards § A system of procedural safeguards must be in place for actions regarding the identification, evaluation, or placement of a disabled student. This system must include the following: § Notice; § An opportunity for the parents to examine relevant records; § An impartial hearing with opportunity for participation by the parents and representation by counsel; and § A review procedure. [34 C. F. R. § 104. 36]

Recommendation § Create a procedural safeguards notice that can be provided to parents and guardians following 504 team actions.

Dispute Resolution § Grievance Procedures § OCR Complaints § Mediation § Impartial Hearing § Review Procedure § Judicial Actions

Grievance Procedures § Grievance procedures must be available to persons who believe that they have been discriminated against because of their disability. § The grievance procedures must follow appropriate due process standards and provide for prompt and equitable resolution of complaints. § The grievance procedures do not have to be exhausted before recourse is sought from OCR. [34 C. F. R. § 104 Appendix A, Subpart A(12)] § The grievance procedures do not have to be followed before seeking relief in court.

OCR Complaints § Complaints can be filed with OCR alleging violations of the Section 504 and ADA regulations. § OCR can order corrective action if it determines that an LEA is in noncompliance following an investigation. § OCR can seek to remove all federal funding from an LEA that refuses to comply with Section 504 and the ADA. § When litigation has been filed raising the same allegations as contained in an OCR complaint, OCR will not proceed with its investigation pending the outcome of the litigation. [OCR Case Processing Manual Section 110(b) (2010)]

Mediation § Nothing under Section 504 prohibits or compels mediation. § In Virginia, the IDEA mediators receive training on Section 504 and can be used at no cost to either party.

Impartial Hearing 1. The Section 504 regulations offer very little guidance on Section 504 hearing procedures. The hearing system must meet the following minimum requirements, however: a. It can be accessed for disagreements over the identification, evaluation, or educational placement of students with disabilities; b. It must be impartial; c. It must allow for parental participation; d. It must allow for representation by counsel; and e. It must have a review procedure. [34 C. F. R. § 104. 36]

Impartial Hearing 2. The IDEA due process hearing system can be accessed to resolve Section 504 disputes. [34 C. F. R. § 104. 36; 8 VAC 20 -81 -330(B)]. This option is not recommended because of the complexity of the IDEA’s procedures. § Hearing officers assigned to VDOE receive training on Section 504 and can be appointed to a case. The school division must agree to this authority before a hearing officer will be granted authority under Section 504. § VDOE will not provide partial reimbursement for Section 504 hearings.

Review Procedure § A review procedure must be available for appealing impartial hearing decisions. [34 C. F. R. § 104. 36] § The Section 504 regulations provide no details on how the review procedure should be conducted. However, the regulations appear to require a second administrative review.

Judicial Actions § Aggrieved parties have the right to file a cause of action in court. [29 U. S. C. § 794 a] § A prevailing party may be entitled to reasonable attorneys’ fees. Id. § Monetary damages are available under Section 504 in cases of bad faith or gross misjudgment. [See Sellers v. School Board of the City of Manassas, 141 F. 3 d 524 (4 th Cir. 1998)].

Stay-Put § Section 504 does not contain a stay-put requirement. § Parental consent is not required to terminate eligibility or to change a 504 plan. But be sure to give notice of due process rights.

Recommendations Create the following procedures and make them accessible to students, parents/guardians: 1. Grievance procedure; 2. Impartial hearing procedure; and 3. Review procedure.

Discipline

Short-Term Suspensions § 10 school days or less at a time. § These suspensions are not considered a significant change in placement. § These suspensions do not require a manifestation determination review (MDR). § The procedural safeguards notice does not have to be provided prior to a short-term suspension.

Long-Term Suspensions § More than 10 school days at a time, or cumulative short-term suspensions exceeding 10 days in a school year that constitute a pattern; § Long-term suspensions are considered a significant change in placement, thus requiring a reevaluation and procedural safeguards notice. [See 34 C. F. R. § 104. 35(a)]

When does a pattern exist? § Series of removals total more than 10 days in a school year. § Behavior is substantially similar to previous behavior that resulted in series of removals; AND § Consideration of length of removals, proximity of removals and total time removed. § Tip: Complete your form to document compliance with the pattern analysis.

Long-Term Suspensions, cont’d. § The Section 504 regulations do not establish the criteria for the reevaluation under disciplinary matters; however, OSEP and OCR offer the following guidance: § The first step in the reevaluation is to conduct an MDR. § No criteria for this review are established under Section 504. IDEA manifestation determination review criteria may be utilized. § If it is determined that the misconduct does not arise from the disability, the disabled student may be suspended in the same manner as non-disabled students. § If it is determined that the misconduct is caused by the disability, the student cannot be suspended, and the reevaluation must continue in order to determine if the student’s current placement is appropriate. [Letter to Williams, 21 IDELR 73 (OSEP/OCR 1994)]

MDR Test § Was the conduct in question caused by, or had a direct and substantial relationship to, the child’s disability? § Was the conduct in question the direct result of the LEA’s failure to implement the 504 plan? § If the team answers yes to either of the two MDR questions, there is a manifestation.

Behavioral Management Plan (BMP) § A BMP may be required when a student’s repeated or serious misconduct interferes with his or her learning. [Elk Grove (CA) Unified Sch. Dist. , 25 IDELR 759 (OCR 1996)] § A BMP should ensure that the student is able to successfully maintain an appropriate placement. Id.

Drug or Alcohol Abusing Students § Exception from special disciplinary protection: § Section 504 permits LEAs to take disciplinary action against a qualified individual with a disability who is currently engaging in the illegal use of drugs or in the use of alcohol to the same extent that such action may be taken against nondisabled students. [29 U. S. C. § 705(20)(C)] § Furthermore, under these circumstances, a student is not entitled to an impartial hearing. Id.

In-School Suspensions § If, during the in-school suspension, the student’s educational program or services are interrupted, and the suspension totals more than 10 school days, the in-school suspension could be considered a significant change in placement thus requiring an MDR.

Bus Suspensions § Revoking transportation services can constitute a significant change in placement. Accordingly, incidents of misconduct on the bus should be handled in the same manner as a disciplinary incident in school. [Letter to Veir, 20 IDELR 864 (OCR 1993)] § LEAs can change the mode or method of providing transportation services to a disabled student if that student is endangering himself or others. Id.

Continuation of Educational Services § Section 504 does not require an LEA to provide educational services to students on long-term suspensions as long as the same policy applies to non-disabled students. [OSEP Memorandum 95 -16, 22 IDELR 531] § Obviously, a different result occurs for students eligible under the IDEA.

SECTION 504 ANTI-DISCRIMINATION PROTECTION FOR IDEA AND SECTION 504 STUDENTS

extra-curricular activities facilities physical impairments employees mental impairments temporary IDEA parents

Comparability of Facilities, Services, and Activities § LEAs must “ensure that the facility and the services and activities provided therein are comparable to the other facilities. . . of the recipient. ” [34 C. F. R. § 104. 34(c)] Ø comparable quality Ø comparable condition § Students with disabilities must also receive a school day of the same length as students without disabilities unless their education plan requires a modified school day.

Accessibility of Facilities and Programs § Qualified disabled persons cannot be excluded from programs or activities because the building facilities are inaccessible or unusable. [34 C. F. R. § 104. 21] § Buildings must have a full range of accessible support features, which include parking, accessible routes, entrances, signage, restrooms, drinking fountains, alarms, and doors.

Nonacademic Services § Must be provided to qualified individuals with disabilities in a manner that affords them an equal opportunity for participation. [34 C. F. R. § 104. 37] § Includes counseling, physical recreational activities, transportation, health services, clubs, physical education, athletics, and employment. [Id. ] § This issue arises primarily with respect to afterschool programs, summer programs, field trips, and other extracurricular activities.

Extracurricular Athletics § Under Section 504, a school division is required to provide a qualified student with a disability an opportunity to benefit from the division’s extracurricular athletics programs equal to that of a student without a disability. § In considering whether a reasonable modification is required to provide a student with disabilities under Section 504 the opportunity to participate in an athletic activity, the school division must undergo a two-step analysis:

Extracurricular Athletics: 2 -step Analysis 1. The school division must first engage in an individualized inquiry to determine whether modification is necessary for the student to be able to participate in the athletic activity. 2. If the modification is necessary, the school district must allow the modification unless doing so would result in a fundamental alteration of the nature of the extracurricular athletic activity. Even if a specific modification would constitute a fundamental alteration, the school district would still be required to determine if other modifications might be available that would permit the student’s participation.

Parents and Members of the Public with Disabilities § The provisions of Section 504 apply also to disabled parents of students and disabled members of the public who participate in school programs, school board meetings, and PTA meetings.

Retaliation/Intimidation/Coercion § Section 504 regulations prohibit schools from retaliating, intimidating, coercing, threatening, or discriminating against any person for the purpose of interfering with their rights, or because of their filing of a complaint or participation in an investigation.

WRAP-UP

Common Myths § Once a student is determined to be eligible under Section 504 that student must remain eligible. § When a student has to take medicine he or she automatically requires a 504 Plan. § A Section 504 Plan is appropriate for the sole purpose of providing accommodations on standardized tests. § Students with ADHD are automatically eligible under Section 504.

Make sure the following are in place: § Identified 504 coordinator. § A nondiscrimination policy that is disseminated to the public. § Child find program. § Standards/procedures for the evaluation and placement process. § Procedures for periodic reevaluations. § A system of procedural safeguards. § Grievance procedures. § Impartial hearing procedures. § Review procedure.

THE END Patrick T. Andriano Reed Smith LLP 901 East Byrd Street, Suite 1700 Richmond, Virginia 23219 (804) 344 -3426 pandriano@reedsmith. com