Overview of Section 504

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Overview of Section 504

• Presented by
• Conde J. Kunzman
• SELPA Director
• Shasta County
• ckunzman_at_shastacoe.org
• July 2009

2
What Is Section 504?

• Section 504 is a federal civil rights
• statue that prohibits discrimination/harassment
  on the basis of a disability

3
What Does Section 504 Actually Say?

• No otherwise qualified handicapped individual
  shall, solely by reason of his handicap, be
  excluded from 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. Subsection 794 (1973)

4
Section 504 Enforcement

• Section 504 is enforced by the U. S. Department
  of Office for Civil Rights
• Violation of Section 504 may also result in civil
  liability

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IDEA Section 504 ADA
Type of legislation Funding act Civil rights act SAME as 504
Original Passage 1975 1973 1990
Coverage Students 3 years to age 22 Students K post secondary employees facilities SAME as 504
FAPE Special education related services Special or regular education and related services Student is compared to the average SAME as 504
Administering Agency OSEP SEAs OCR (EEOC) SAME as 504
Eligibility Definition 2 essential elements 1) 13 categories 2) need for spec ed. 3 essential elements 1) impairment 2) major life activity 3) substantial SAME as 504
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3 Phases of Section 504

• Stage 1 Awareness
• Stage 2 Constriction
• Stage 3 Expansion

• 1970s disability movement
• Court cases
• Sutton 1999
• Toyota 2002
• January 1, 2009 - ADAAA

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PHASE 1

• Awareness
• 1973
• 1977 the regulations needed to enforce Section
  504 were signed
• Accessible buildings
• Curb cuts
• Very little impact on schools

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SECTION 504PHASE 2 CONSTRICTION

• Sutton v. United Airlines (1999)
• Mitigating factors considered when evaluating if
  a person has a substantial limitation
• Toyota v. Williams ( 2002)
• Severely restricted an individual from engaging
  activities of central importance impairment
  was permanent or long term

IDEA
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SECTION 504 STAGE 3 EXPANSION

• ADA Amendments Act
• Effective 1/1/09
• In rejecting a series of U.S. Supreme Court
  decisions, the new law is intended to reinstate
  the broad scope of protection for individuals
  with disabilities.

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SECTION 504 STAGE 3 EXPANSION

• Section 504, unlike the IDEA, requires a
  comparison between the treatment of disabled and
  nondisabled children, rather than simply
  requiring a certain level of services for each
  disabled child.
• Mark H. v. Lemahieu (9th Cir. 2008) 513 F.3d
  922)

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SECTION 504 STAGE 3 EXPANSION

• Broadens the definition and coverage of
  disability under ADA and the Rehabilitation
  Act.
• Ensures that individuals who compensate for their
  disabilities are protected from discrimination.
• Clarifies that substantially limits does not
  mean significantly restricts.

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EXPANSION - ADA Amendments Act

• Impairment that limits one major life need not
  limit other major life activities in order to be
  considered a disability.
• Impairment that is episodic or in remission is a
  disability if it would substantially limit a
  major life activity when active.

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Section 504/ADA Amendments Act

• Requires disability determinations to be made
  without considering mitigating measures
• e.g., medication, medical supplies, appliances,
  low-vision devices, prosthetics, hearing aids and
  mobility devices.
• Excludes ordinary eye glasses and contact lenses

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The Big 4

• Concentrating
• Thinking
• Learning
• Reading

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ADA Amendments Act

• Main focus of the ADAAA
• Employees
• Iraq veterans
• Changes may or may not impact K-12 practices
• Form D

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FORM D

• The team must focus on the major life activity as
  a whole (e.g. learning), not on a particular
  class (e.g. math) or sub-area (e.g.,
  socialization study skills)
• Substantial limitation means
• unable to perform a life activity that the
  average student of approximately the same age can
  perform

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OR

1. significantly restricted as to the condition,
   manner or duration under which a particular life
   activity is performed as compared to the average
   student of approximately the same age. The
   impairment must be substantial and somewhat
   unique, rather than commonplace, when compared to
   the average student of approximately the same
   age.

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Site Implications

• Increased role for school nurse
• Make an educated estimate of the mitigation of
  medication
• Ask parents to bring in medical information and
  consider the contents of the evaluation. The team
  should modify its position on eligibility if
  appropriate.
• Do a thorough and complete evaluation of students
  in all areas of suspected disability
• Forest Grove School District v. T.A.
• RtI implications
• Tier 2 or 3 interventions
• Special education referral
• IDEA regulations regarding consent revocation
• Perform Child Find obligation

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Key Points

• Common regular education interventions such as
  RtI may eliminate existence of a substantial
  limitation
• Standard is to compare student to an average
  student. This means you compare student against
  chronological peers in the entire state or
  country. Different standard of FAPE than I.D.E.A.
• Do not consider mitigating factors when
  determining whether an impairment is
  substantially limiting

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• Physician or psychologist opinion as to students
  eligibility status is only one source of
  information the team should consider. Remember,
  the team is making an educational decision, not a
  medical decision.
• Students eligible under I.D.E.A. are not entitled
  to a separate Section 504 plan.

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Temporary Disabilities

• Determination must be made on a case-by-case
  basis, taking into consideration the severity and
  the duration of the impairment, typically 6
  months

22
Procedural Requirements

• Notice to parent of evaluation, meeting, and
  notice of results/actions.
• Form A
• Form D
• Form F
• Appropriate Team Membership, parent and persons
  knowledgeable about the child, meaning of
  evaluations and placement options.
• Form C

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• Parent rights must be provided
• Form B
• Parent Permission must be received prior to
  evaluation
• Form A
• Ensure appropriate time limits are set
• Same as I.D.E.A
• School representative and parents should organize
  and review all data prior to Section 504 meeting
• Form C

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Developing a Section 504 Plan

• Identify students disability, major life
  activity impacted, and educational impact of
  disability.
• Design a program to suit student needs
• FAPE special ed. and/or regular education
  related services
• Be sure accommodations are succinct and realistic
• Review each Section 504 Plan at least on an
  annual basis or upon any significant change in
  placement.

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Local Grievance Procedure

• Identification, evaluation, or placement
  decisions may be appealed by a written request.
• Form J
• Mediation may be used to resolve areas of dispute
• Form B
• List your districts 504 Coordinator
• Place districts 504 Coordinator on your website
• Contact the SELPA office if needed
• After mediation or impartial hearing, a written
  decision must be provided to person making appeal

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Child Find Requirement

• The District has an affirmative duty to conduct a
  child find at least annually.
• District must identify and locate every
  qualified disabled child residing in its
  jurisdiction including pre-schoolers,
  homeless, and those attending private school.

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Child Find (cont)

• Teachers and administrators must receive training
  on the identification of students suspected of
  having a disability.

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School Wide Compliance

• Annually identify and locate all Section 504
  qualified students (Child Find)
• Pamphlet available on SELPA website
• County wide tracking mechanism
• Annually notify persons who are disabled and
  their parents of the Districts responsibilities
  under Section 504.
• Provide parents with procedural safeguards.

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Useful References

• P.A. Zirkel,
• Section 504, the ADA and the Schools
• Two-volume reference updated ANNUALLY and
  available from www.lrp.com
• P.A. Zirkel,
• 504 / ADA Eligibility Determinations
• Wests Education Law Reporter (in press)

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References (cont)

• Section 504 and ADA Providing Student Access A
  Resource Guide for Educators,
• 3d edition
• A guide providing forms and policy templates
  (including a CD) for use by school districts and
  available from www.casecec.org

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Useful References (cont.)

• npl.ly.gov.tw/pdf/6538.pdf
• One of the several sources for the specific
  statutory language, which on legal databases will
  be available under these official, alternative
  citations
• 122 Stat. 3554 and U.S.C. 12101 et seq. (2008)

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Conde Kunzman ckunzman_at_shastacoe.org

• Thank You.