IMPLEMENTING 504 IN MISSOURIS SCHOOLS

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IMPLEMENTING 504 IN MISSOURIS SCHOOLS

• Teri Goldman
• Teri B. Goldman, LLC
• 36 Four Seasons Center 337
• Chesterfield, MO 63017
• terigoldmanatty_at_aol.com

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PURPOSE OF 504

• To eliminate discrimination on the basis of
  disability in any program or activity receiving
  federal financial assistance from the Dept of
  Education.
• Direct or indirect receipt of federal financial
  assistance.
• .

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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Medical Diagnoses

• OCR finding a student eligible simply on the
  basis of a diagnosis violates 504.
• Dont second guess medical diagnoses, simply
  consider them as one part of the process.

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What is a major life activity?

• Major life activities mean functions such as
  caring for ones self, performing manual tasks,
  walking, seeing, hearing, speaking, breathing,
  learning, and working.
• List is not exhaustive. Courts may add further
  to the list.

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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. Dont use
  small subsets of learning, such as spelling.

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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.

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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.

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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.

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Major Life Activities

• Specific activities not on the list are
  determined on a case-by-case basis.

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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.

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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.

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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.

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Substantial Limitation

• Supreme Court to be substantially limited, the
  impairments 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.

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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.

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Substantial Limitation

• Comparison is not in relation to students
  potential or ability.
• Use at least state or national data, where
  available.

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Exclusions

• Environmental, cultural, and economic
  disadvantage are not in themselves covered.
• Other excluded conditions include bisexuality,
  other gender identity disorders, compulsive
  gambling.

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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.

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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.

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Temporary Impairments.

• Supreme Court ADA the impairments 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.

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Temporary Impairments

• OCR may be covered if substantially limiting
  and depending on severity and duration.
• Case-by-case evaluation.

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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.

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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.

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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 bodys
  ability to process waste.

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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.

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Case Examples

• Student with ADHD not eligible where impairment
  did not substantially limit learning.
• ADHD student not disabled where classroom
  performance was above average.

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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.

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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.

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504 v. IDEA

• IDEA covers only students who meet criteria.
• 504 covers more individuals and activities-
  employees, patrons, parents, facilities,
  extracurricular.

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CHILD FIND

• Obligation to Identify
• and Evaluation Students

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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.

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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.

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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.

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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.

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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.

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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.

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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!!!!

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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.

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Evaluations

• 504 does not specify the form of the evaluation.

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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.

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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

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Evaluations

• Validation and reliability.
• Proper administration.
• Sufficient testing in all areas of suspected
  disability.

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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.

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Reevaluations

• Must have procedures for periodic reevaluations
  of students.
• No 3-year requirements.
• Discontinuation of 504 eligibility requires a
  reevaluation.

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Evaluation Timelines

• None specified in 504 or by OCR.
• Complete without undue delay following referral.
• Following IDEA timelines (60 days) should suffice.

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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.

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Determining Students Eligibility

• Referral Process
• Parent Communications
• Screening
• Evaluation
• Eligibility Meeting

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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.

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Eligibility

• No mandatory team requirements.
• Parents not mandated members, but should always
  be invited.

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Team Process

• 504 requires the use of a multidisciplinary team.
• Eligibility and programming decisions should not
  be made by one individual.

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PROVIDING ACCOMMODATIONS TO ELIGIBLE STUDENTS
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Accommodation Plans

• Must provide FAPE regardless of the nature or
  severity of the persons handicap.
• Provision of regular or special education and
  related aids and services.

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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.

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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

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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.

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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.

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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.

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Related Services

• May be part of an appropriate education.
• Transportation must be provided if necessary.

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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.

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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.

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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

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• Epi-pen training for student with peanut allergy
  substitutes to be notified of students 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

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• 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

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CASE STUDIES

• Is there reason to suspect a 504 disability?
• Should a referral be made under 504? under IDEA?
• Should an evaluation be conducted?
• What type of evaluation should be performed?
• Is the child eligible?

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CASE STUDIES

• What is the impairment?
• What major life activities are impacted by the
  impairment?
• Is there a substantial limitation?
• Are there any relevant mitigating measures?
• If eligible, what accommodations should be
  provided?