Implementing Section 504 Subpart A General Provisions Subpart

Implementing Section 504 Subpart A – General Provisions & Subpart D – Preschool, Elementary, and Secondary Education Emily Omohundro

Federal Law - 29 U. S. C. Sec. 794 “No otherwise qualified individual with disabilities in the United States shall, solely by reason of disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance. ”

Discrimination - 34 C. F. R. 104. 4 • Discrimination is a negative action: the exclusion from participation in, or the denial of benefits of, any program or activity receiving or benefiting from federal financial assistance. • Students may not be denied participation in or be denied benefit from services that are afforded to nondisabled students.

What Does This Mean? • Discrimination on the basis of disability is prohibited • No denial of an opportunity to participate in or benefit from services/activities • Students with disabilities cannot receive second-rate services or benefits compared to other students • Provide equal access • Unless necessary to provide person with a disability services/benefits that are as effective as to those provided to others

Basic Requirements of Section 504 (Appendix, Part 104 Analysis, Subpart D) • Eligible students receive FAPE and are educated with nondisabled to maximum extent possible. • Schools seek to identify and serve all students who may need service. • Evaluation procedures are appropriate and avoid misclassification. • Procedural safeguards are utilized.

In Relation to all students, 504 eligible students are afforded equal access

Purpose of Section 504 • Civil rights legislation applied to persons with disabilities. • Impacts entities that receive federal funds—does not supply additional funds. • Legislative intent is to prevent discrimination based on disability.

Procedures & Requirements Under Section 504 • Designation of compliance officer • Grievance procedures • Notice of non-discrimination • Child Find • FAPE for eligible students

FAPE Continued • A free appropriate public education (FAPE) must be offered in accordance with appropriate procedures in: • Identification • Evaluation • Placement • Procedural safeguards

FAPE Continued “Appropriate Education” • In Section 504, appropriate means: “an education designed to meet the individual educational needs of the disabled as adequately as the educational needs of the nondisabled are met. ” • Equal opportunity; access!

FAPE Continued • • • Annual Review Periodic Re-Evaluation Manifestation Determination • 10 Days FAPE free • Relatedness • Implementation of 504 Plan • • Related – return to Reg. Ed (Plan / FBA /BIP) Unrelated – Consequence same as any other student

Steps in 504 Process • • Child Find Identification/Referral Evaluation Eligibility Determination Accommodation Plan Develope Annual Review Periodic Re-Evaluation

• Identify and locate • Take steps to notify • Provide FAPE

Child Find In Your District • Non – Discrimination Statement • Public Announcement / Meeting • Front door / website / handbook /meeting • Online Enrollment • Health Data Questions • Specific Disability Questions • Request for Records Form • Teachers

Duty to Identify • Affirmative duty to identify and locate all students living in the District • This means identifying potentially disabled students who are not receiving a public education. • Conduct an evaluation of any student who needs or is believed to need special education services (inquiry is whether student should be referred NOT whether student qualifies) • Low threshold (info. provided by parent, parent request is enough, attendance issues)

Referral Process Parents Certified teachers Administrators Support staff Licensed professionals (nurses, therapists, etc. ) • Outside agencies • Doctors, psychologists, psychiatrists • • •

Referral Process Continued Parent • Verbal or Written - Information should be immediately provided to the Building 504 Coordinator • Building Coordinator - Contact parent and start the evaluation process Staff • Notify Building 504 Coordinator • Once notified, the Building 504 Coordinator should gather information and determine if the evaluation process should begin (this may include contacting parent to gather additional information)

Who is a Qualified Person with a Disability? Does any disability qualify a person? Is any particular severity of the disability required? 1. Physical or mental impairment which substantially limits one or more major life activity; 2. Has a record of such impairment, or 3. Is regarded as having such an impairment (2 and 3 are not entitled to FAPE, but nondiscrimination applies)

Eligibility Under Section 504: A physical or mental impairment that substantially limits a major life activity Physical or mental impairment means (A) 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 (B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. Remember: the impairment must substantially limit a major life activity

Major Life Activity is Broadly Defined Section 504 regulations? • caring for one's self • performing manual • • tasks walking seeing hearing speaking breathing learning working ADAAA • eating • sleeping • standing • lifting • bending • reading • concentrating • thinking • communicating • and the operation of a major bodily function

Evaluation • Impairment • Documented real & ongoing • Mental or Physical • Frequency of Documentation • School Team observes & documents conditions requiring accommodations • Substantial limitation to Major Life Activity • Compared to nondisabled peers

Evaluation Continued • Informal • Across settings • Compared to non Disabled Peers • Patterns of needs / behaviors across settings • Teacher Observations • Provisions beyond the norm • Re-Evaluation should mirror initial evaluation

Eligibility Determination • Not determined by a medical professional • Is determined by the 504 Team • A group of knowledgeable persons convened by the District • Knowledgeable about… • The student • Evaluation data to be considered • Placement options • Section 504/Title II requirements • Should include a medical professional when • Medical condition may require aids or services • Parents not required participants • Should be invited to meetings • Provided with meaningful opportunity for input • May be necessary to meet the “knowledgeable group” requirement

Eligibility Determination Continued • • Draw upon information from a variety of sources • Outside information from medical professionals is not determinative • Aptitude and achievements tests • Teacher recommendations • Physical condition • Social or cultural background • Adaptive behavior Additional assessment may be requested by the Team • Must be provided at no cost to parent • Must ensure that tests and other evaluation materials are appropriately and professional administered • Must be appropriately tailored • Assessments must be used as a measure of the indicator for which they were intended

Eligibility Determination Continued What About Mitigating Measures? • Mitigating measure • Medication • Prosthetics • Hearing aid/cochlear implant • Assistive technology • Cannot be used for eligibility • Can be used for determining need for services! • Remember: Just because a student is eligible, doesn’t mean they require any services… • But we have to follow the process

Eligibility Determination Continued • Review of Existing Data • Teacher Observations compared to non Disabled peers • As good as or better • Weaker • Significantly behind – 504 RED Flag • Teacher Scales • Patterns across settings

Eligibility Determination Continued Eligibility Issues Errors • Ignoring the cause - just focusing on symptoms Requirements • Must have a current disability • Assuming disability equals • eligibility • Must document a substantial • limitation • Relying on parent for all data about disability • How does the disability impact performance at school?

Eligibility Determination Continued Eligibility Issues Errors • “He’ll have trouble next year, so let’s give him a Section 504 plan now!” Requirements • “Learning” means just reading, or math, or social studies, or. . . • The disability must substantially limit the major life activity area (learning, thinking, eating, sleeping, etc. ) • “He is capable of making much higher grades. ” • You must document the presence of a current disability that substantially limits a major life activity NOW • Comparison is to the average student in the general

Eligibility Determination Continued • Convene the 504 Team • Consider available to determine eligibility • Reach a consensus as to whether the student’s disability substantially limits one or more major life activity • A vote is not necessary • District personnel must make final decision • Subject to Due Process Procedure • Determine if services are necessary • Determine what services should be provided

Providing FAPE & Educational Placement • Determine eligibility then • Determine how to provide FAPE • “Placement” • The regular school and/or special educational program in which a student receives educational or related services

FAPE Continued • Determine if: • Regular education services • Special education services • Related aids • Related services • Consider: Mitigating measures? • Positive effect • Negative effects • No current needs? No 504 Plan is necessary BUT • Document the reasons for NOT developing a plan! • Monitor for changes • Re-evaluate on schedule

Accommodation Plan • If student requires accommodations: • Develop a plan • Within a reasonable time • Reviewed Annually by at least three individuals: • Knowledgeable about the student • Knowledgeable about the evaluation • Aware of the placement options • Parents are not required, but must invite • Attempt to schedule at mutually convenient time • Consider documentation provided by parents • Accommodations that are required to provide access to an education designed to meet needs of the disabled as adequately as those of the nondisabled • Participation in all school activities, including assessments, nonacademics, and extracurricular activities *Section 504 is NOT intended to fulfill dreams or desires or to ensure better test scores*

Accommodation Plan Continued • Accommodations that are required to provide access to an education designed to meet needs of the disabled as adequately as those of the nondisabled • Participation in all school activities, including assessments, nonacademics, and extracurricular activities • Carefully consider documented sources: • Aptitude and achievement tests • Teacher recommendations • Parental documentation • Physical condition • Social and cultural background • Adaptive behavior • Ensure placement in which student will be educated with students who are not disabled to the maximum extent appropriate to fit needs • Keep the student in the regular ed environment unless that would lead to an unsatisfactory result even with use of aids and services *Section 504 is NOT intended to fulfill dreams or desires or to ensure better test scores*

Accommodation Plan Continued • Not to be used as a “consolation prize. ” • Not meant to solve problems of the general education program. • Not to be given because parents want special consideration or don’t want IEP. • Purpose: To prevent discrimination and ensure equal access and opportunity!

Accommodation Plan Continued • Special dietary needs • Typically will need to be met • Medication administration • Include in the plan • Who to administer • Emergency procedures • Staff training • Unique educational settings (field trips, etc. ) • District does NOT pay for medication

Accommodation Plan Continued • • • Homebound • Consider how to provide best instruction in the setting Placement other than the student’s regular school building • Consider proximity to home • Determine transportation • If residential, District must pay the cost Shortened School Day • Must be related to the disability • Well-documented

Extracurriculars & Nonacademic Services • January 25, 2013 “Dear Colleague” letter from OCR • Extracurricular activities are considered part of the “overall education program” • Schools must make reasonable modifications and provide aids/services that are necessary to ensure an equal opportunity to participate • No modifications if making them will fundamentally alter program or compromise safety standards

Re-Evaluation • Periodic • IDEA rule of thumb - Every three years • Mirrors the Initial 504 Evaluation • Before significant change of placement • Dismissal • Homebound • Transfer Students • Continue comparable services in existing Plan until… • Acceptance of existing Plan; • Development of a new Plan, or; • Evaluation to determine eligibility • Re-evaluation requires parental notice, but not consent

Common Compliance Issues • Development of plan without appropriate evaluation. • Failure to document team decisions. • Failure or refusal to consider evaluations by outside professionals. • Failure to transfer Section 504 documents. • Failure to respond to evaluation request. • Failure to implement a Section 504 plan in the general education classroom. • Exclusion or limitation on participation in electives, field trips, extracurricular activities, etc.

What if we Don’t Follow the 504 Process? • Exposure to litigation, • Exhaust time, energy, staff resources • Due Process • Formal complaint to OCR • Federal civil discrimination suit • Possible monetary damages but most importantly… We wouldn’t be doing what is best for students!

Procedural Safeguards & Due Process • Procedural safeguards include: parental consent to evaluate, notice to parents explaining any evaluation and placement decisions, and explanation of the right to review educational records and appeal any decision regarding evaluation and placement • Designate a 504 coordinator (your compliance officer) • 504 Grievance Procedure • Local procedure with investigation conducted by 504 coordinator – Board Policy/Regulation 1310 • Must investigate even if OCR, law enforcement, or CD is also investigating

Discipline of Disabled Students • Board Policy 2672 • Protections triggered when a student is suspended for more than 10 days • 504 Team must conduct a manifestation determination meeting • If no MD: Discipline is imposed, educational services not required during suspension • If MD: No discipline beyond 10 days imposed, team considers additional accommodations

Implementing Section 504 Subpart A – General Provisions & Subpart D – Preschool, Elementary, and Secondary Education Emily Omohundro