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The Plan for Today
The Plan for Today
504 Overview Eligibility Step-by-Step Drafting Plans Referral Process Procedural Safeguards Discipline
504 Overview
Similarities School districts must evaluate and
determine eligibility Both require
• transportation, • accommodation/modification• related services• manifestation determination LRE requirement
Primary Differences Definition of disability is unique to
each statute No funding under 504 504 encompasses
• Students • Employees • Patrons
When is school required to make a 504 referral?
When district believes that the student has a physical or mental impairment that substantially limits one or more major life activities AND
Student is in need of either regular ed with supplementary services or special ed. and related services
Changes to ADA
Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) The ADA Amendments Act of 2008
increased the number of individuals who qualify for accommodation under both the Americans With Disabilities Act and Section 504 of the Rehabilitation Act of 1973.
Major Changes First, the definition of “major life activity”
has expandedNow include but are not limited to:Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
Major Changes First, the definition of “major life activity”
has expandedNow include but are not limited to:Caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.
Major Changes Second, interpretation of “substantially
limits” has been changed• Must evaluate impairment that is episodic or in
remission in active state• Must not consider mitigating measures
Episodic Impairments Asthma Chron’s Disease IBS Any other disease that can “come and
go” or has good and bad days
No “Mitigating Measures”
A student may be eligible under Section 504 even if the student’s disability or condition is controlled or mitigated, whether by medication, technology, etc. This means you may be evaluating
a hypothetical student
Mitigating Measures
Mitigating Measures Medication Medical supplies, equipment, appliances Low-vision devices (NOT ordinary
eyeglasses or contacts) Prosthetics Hearing aids/cochlear implants Learned behavioral or adaptive
neurological modifications Reasonable accommodations or other
auxiliary aids or services
Transitory Impairments A “transitory impairment” is defined
as an impairment with an actual or expected duration of six months or less. “Any impairment the duration of
which is less than six months would not constitute a disability.” James A. Garfield (OH) Local School
Dist., 52 IDELR 142 (OCR Feb. 19, 2009).
What if the activity impaired is not learning? The child may still need a 504 plan The focus is on the effect on the student,
not the type of disability “Students may have a disability that in
no way affects their ability to learn, yet they may need extra help of some kind from the system to access learning.”
Eligibility Step by Step:1. Referral for evaluation2. Procedural Safeguards3. Written parental consent4. Evaluation 5. Conference6. Determination
Eligibility Step by Step:1. Referral for evaluation2. Procedural Safeguards3. Written parental consent4. Evaluation 5. Conference6. Determination
When to refer a student Parents report health condition Parents request eval Student failing to make progress Staff refers student to SAT Student returning to school after a
serious injury Student failed to verify for SpEd Student habitually absent
Health Plan ≠ 504 Plan
504/Health Plans Tyler (Tx) Indep. Sch. Dist., (OCR
2010) • health care plan for diabetic students• Required to evaluate under 504
Dracut (Ma) Pub. Sch., (OCR 2010)• health care plan for peanut allergy• Required to evaluate under 504
504/Health Plans Opelika city (AL) Sch. Dist., (OCR
2010) • health care plan for diabetic
students• Required to evaluate under 504
Jan. 19 Guidance Document
Do Not Take Shortcuts!
Can We Just Provide Help without creating a plan?
No!! Remember: disability education
law is about PROCESS not RESULTS
Temple (TX) ISD, (OCR 1996)
Absences and Truancy
Absences and Truancy Absenteeism alone can trigger 504 Laramie County (WY) Sch. Dist., 51
IDELR 169 (OCR 2008)• student ill most of school year• placed on "homebound" status• his parent requested a 504 plan. • The district established a plan but did not
evaluate under 504 • OCR: absences should have triggered 504
eval• OCR: creating a plan not enough
Other cases re 504 referral Chapel Hill-Carrboro (NC) Schs., (OCR 2006)• Student too anxious to enter building.• 504 coordinator met with the parent • parent declined to release medical info.• student suffered a second attack 6 mos later• Calmed down after speaking w/ teacher. • No other teacher aware of anxiety problems • OCR: district reasonably believed student did
not require services for anxiety
Other cases re 504 referralCassopolis (MI) Pub. Schs., (OCR 2010) • 3rd grader diagnosed with ADHD, but no 504 • Never qualified for "Fun Fridays,"• Parent complained • OCR: district had sufficient information about
the student's difficulty and the parent's concern to trigger a referral
Eligibility Step by Step:1. Referral for evaluation2. Procedural Safeguards3. Written parental consent4. Evaluation 5. Conference6. Determination
Required Safeguards“Except in extraordinary circumstances OCR does not review the results of individual placement or other educational decisions so long as a school district complies with the procedural requirements of Section 504 relative to identification, location, and evaluation of children with known or suspected disabilities and due process.”
Eligibility Step by Step:1. Referral for evaluation2. Procedural Safeguards3. Written parental consent4. Evaluation 5. Conference6. Determination
Parental Consent Parents must provide “informed consent” Parent Refusal to Consent
• To initial eval: district may, but is not required to, initiate due process to conduct the evaluation in the absence of consent. Dyersburg (TN) City Sch. Dist., (OCR 1988).
• To Reeval: In Letter to Durheim, (OCR 1997)
Cases re Parental Consent Ipswich (MA) Pub. Schs., (OCR 2006)
• Parents of two students with undisclosed disabilities repeatedly refused to consent to a Section 504 evaluation
• Parent later filed complaint with OCR• OCR: District did not discriminate against
the students by failing to assess their need for accommodations
Eligibility Step by Step:1. Referral for evaluation 2. Procedural Safeguards3. Written parental consent4. Evaluation 5. Conference6. Determination
Evaluation No timeline
• “within a reasonable period of time” Placement Team
• membership not prescribed • Individuals who are knowledgeable
about the student, the meaning of the evaluation data, and the placement options
Requirements for evaluation specified in the Section 504 regulatory provision at 34C.F.R. 104.35 http://www2.ed.gov/policy/rights/reg/ocr/edlite-34cfr104.html#S35
Evaluation Components• Aptitude and Achievement Test Scores• Test/evaluation material tailored to evaluate
the specific area of educational need • Grades• Teacher observations & recommendations• Physician’s medical diagnosis • Physical condition• Social and cultural background• Adaptive behavior• Discipline records• Attendance
Medical diagnosis issues Diagnosis alone not sufficient Must consider – along with info from
other sources May not require parents to provide
medical records If school determined medical
assessment necessary, district must ensure child receives assessment
Eligibility Step by Step:1. Referral for evaluation 2. Procedural Safeguards3. Written parental consent4. Evaluation 5. Conference6. Determination
504 Conference Who participates?
• No list – not IEP• Factually dependent• Parents not required to participate – but
MUST have input Discuss evaluation information Determine eligibility for 504 (Consider SpEd) Explain rights
Eligibility Step by Step:1. Referral for evaluation 2. Procedural Safeguards3. Written parental consent4. Evaluation 5. Conference6. Determination
Kids Not Meeting Potential
A child’s failure to perform to his/her potential is not sufficient reason for referral and evaluation Key is education benefit Jefferson Parish (LA) Public Schools,
(OCR 1990)
Drafting 504 PlansHave knowledgeable team members Ensure that the whole group makes
decisions about the 504 plan (Not single member like a parent) Individualize plans Be DetailedKeep it Simple
Plan must Be individually tailored to student
needs with appropriate modifications and accommodations Be detailed and specific Plan that listed accommodations “as
needed” deemed “sufficiently ambiguous to raise issue of fact for trial.” SLM v. Dieringer School Dist. 343 (W.D. Wash. 2008)
504 & Student Discipline
504 & Student Discipline Good News: drugs and alcohol are
simple• No special 504 procedures for using
or possessing drugs or alcohol at school
• Student Discipline Act procedures still apply
All other offenses: Must follow “IDEA Light” process
IDEA Light????
IDEA Light???? OCR uses IDEA Discipline Rules in 504 First 10 days “free” If changing placement; must conduct a
manifestation determination• Is current placement appropriate?• Did disability cause or have a direct and
substantial relationship to, the misconduct • Was misconduct direct result of an IEP
implementation failure
IDEA Light???? If manifestation
• Cannot discipline• Must consider whether plan needs to be
change If not a manifestation
• Can discipline like regular ed student• No IAEP