Differences & Distinctions: 504s v. IEPs Amy Vatner, Esq. SPED*NET Wilton June 4. 2013 1.
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Transcript of Differences & Distinctions: 504s v. IEPs Amy Vatner, Esq. SPED*NET Wilton June 4. 2013 1.
Legal Background Section 504 & Public Schools Overview Referral, Evaluation, & Eligibility
Determination 504 Plan & Placement Procedural Safeguards IDEA vs. 504
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Training Agenda
What is Section 504?
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Part of the Rehabilitation Act of 1973
National civil rights law, not and education statute
Prohibits discrimination on the basis of disability by any program or activity (including schools, health care housing, postsecondary education) that receives federal financial assistance
“No otherwise qualified individual with a disability in the United States shall, solely by reason of her or his 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”
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What Section 504 Says
IDEA is a Dept. of Education statute, not civil rights Both may provide services and protections to
students with disabilities Laws have different definitions of “disability” 504 is not a funding statute IDEA is a funding statute – federal and state
allocations
*Individuals with Disabilities Education Act6
Related Laws:IDEA* and Section 504
ADAAA prohibits discrimination of people with disabilities by: All qualifying private employers (Title I) All state and local government programs, including the public schools
(Title II), and All places of public accommodation, including non-religiously
controlled colleges and universities and test agencies (Title III) Section 504 preceded enactment of ADAAA and has generally
been used as basis for disability discrimination protection in schools
Courts and Office of Civil Rights (OCR) have interpreted laws consistently
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Related Laws: Section 504 & Americans with Disabilities Act
Amendments Act (ADAAA) of 2008
ADA Amendments Act of 2008 (ADAAA)
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ADAAA requires that definition of disability be interpreted broadly
OCR enforces Section 504 regulations consistently with the ADA, so the new definition of disability in the ADAAA must be used when determining Section 504 eligibility
Does the student:
have a physical or mental impairment* which substantially limits one or more major life activities?
*or has a record of having an impairment or is regarded as having an impairment
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Person with a Disability: ADAAA/504 Definition
Any physiological condition that affects a bodily system, or any mental or psychological disorder
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504/ADAAA Disability Definition Part 1:
Impairment
No litmus test for what “substantially limits means”
More than material limitation but less than severe limitation (Look to condition, manner,
duration) Mitigating measures may not be considered
(medication) Includes substantially limiting impairments
that may be episodic or go into remission11
504/ADAAA Disability Definition Part 2:
Substantial Limitation
504/ADAAA Disability Definition Part 3:
Major Life Activity
Section 504
Caring for oneself Performing manual tasks Walking Seeing Hearing Speaking Breathing Learning Working
Added by ADAAA Eating Sleeping Standing Lifting Bending Reading Concentrating Thinking Communicating
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Additional Major Life Activities
(Bodily Functions)
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Brain Circulatory Endocrine Reproductive Neurological
Immune system Normal cell growth Digestive Bowel Bladder Respiratory
If a student has an IEP, she is covered by the IDEA & receiving special ed services
If a student has 504 plan, there are no special ed services
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IDEA vs 504: Big Picture reminders
Intent of civil rights laws is to provide equal opportunity and prevent discrimination based on disability – THINK “leveling the playing field”
Public schools must provide FAPE (free appropriate public education) to each qualified student with a disability
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Section 504 and Public Schools
Overview: The 504 Process
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Referral Evaluation Eligibility
Determination Development of
504 Plan Review Reevaluation
Districts: Have “child find” obligation to evaluate students who they suspect may have a disability
Parents: May want to consider 504 evaluation if their child did not qualify for services under IDEA but has shown a pattern of not succeeding in the general education classroom or has a diagnosis and needs accommodations to fully participate in school activities
Anyone may refer, but parents must CONSENT to eval
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Referral for evaluation
Does the student have a disability under Section 504?
If so, what are the student’s individual education needs?
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Purpose of Evaluation
Use valid tests conducted by trained personnel
Assess all areas of educational need Accurately reflect achievement rather than
disability Be completed in a reasonable amount of
time Include process for periodic reevaluation
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Section 504 Evaluation Requirements
Medical diagnosis is not needed for Section 504 eligibility (team can make placement without it)
If 504 placement team determines a diagnosis is required, the evaluation must be conducted at no cost to the parents
If a child does have a medical diagnosis, it does not automatically qualify the student for 504 services
Look at IMPACT and not DIAGNOSIS
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Medical Diagnosis and 504
Student has a diagnosis from an outside clinician. Is student entitled to a 504 plan on this basis alone?
Question: Outside diagnosis
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Student has no formal diagnosis, but is struggling in school, has severe problems staying focused in class. Can the student receive a 504 plan without a formal diagnosis?
Question: No diagnosis, but problems
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People who: are knowledgeable about the student, can interpret data, and know the placement options
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504 Team
Might include:•Principal•Social Worker•Counselor•Psychologist•Nurse•Other School Staff•Parent (not required as under IDEA!)
The team must consider all factors affecting a student’s ability to receive FAPE:Evaluation data (aptitude and achievement tests)Teacher recommendationsPhysical conditionChild’s social & cultural backgroundAdaptive behaviorOther sources of information (parents, doctors, etc.)
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Determining 504 Eligibility
More than just the physical setting Plan describes all modifications and
accommodations to be provided to meet student’s individual needs
Written plan is not required, but is considered good practice (AND YOU SHOULD DEMAND IT!!)
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Placement
Description of the disability How disability addressed in the school List of accommodations/modifications and
services Names of teachers who will put plan into effect
Remember, the plan doesn’t have to grant everything, it’s about leveling the playing field and the school has some defenses it can claim
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What’s in the 504 Plan
Examples include:Removal of physical barriersExtended time for testingAdjustment of class scheduleRest periodsUse of aids (calculators, recorders, notetakers, modified textbooks, etc.)Individualized homework assignments
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Accommodation & Modifications
Work with student to figure out the 3-5 most important things that could change about his/her school day
Parent or provider can have this conversation
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Sit down with student and have a meaningful conversation
Physical therapy Counseling, psychological, or social work services Assistive technology Speech & language services Occupational therapy Medical Services Staff training
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Related Services: DON’T let them tell you services
aren’t part of 504!!
Required:
“Periodically” (not defined in 504, may use IDEA timelines)
Before changing placement (includes education setting or significant change in service level)
Suspension of more than 10 days
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Reevaluation
Ensure parents are properly notified regarding their children’s education
Provide process for parents to disagree with school’s decision
Require districts to review their own compliance with Section 504 requirements
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Procedural Safeguards
U.S. Department of Education Office of Civil Rights complaint (must be filed within 180 days)
Legal action in Federal Court
General grievance with District-designated 504 Coordinator
Impartial Hearing for disagreements over identification, evaluation & placement only (not the 504 plan itself!)
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4 Dispute Resolution Options
School Districts must:
establish grievance procedures for resolving complaints
designate a 504 Coordinator to ensure compliance
inform parents and students about the grievance process
AGAIN – this is for more general complaints of discrimination (including access to programs)
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504 Coordinator and Grievance Procedures
Districts may not retaliate against individuals for: asserting rights under 504 opposing disability discriminationparticipating in a complaint process or hearing
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No Retaliation
IDEA/504 Diagram
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All Studen
ts
Students with disabilities
504-eligibl
e studen
ts
IDEA-eligibl
e studen
ts
Section 504
IDEA
Funding? No Federal & State
Eligibility Determination
General disability definition
Disability categories & need for special education and related services
Evaluations Initial & “periodic”
Initial & triannual
FAPE Needs met as adequately as those without disabilities
Individualized educational program from which child receives educational benefit
Plan 504 Plan IEP in writing
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Side-by-Side Comparison
Who must comply?
Section 504: recipients of Federal fundsADA:
Private employers (Title I) All state and local government programs (Title II) Public accommodations, including non-religiously
controlled colleges and universities and test agencies (Title III)
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General Overview: Section 504 and ADAAA
After a student graduates high school or turns 21, IDEA no longer applies
With a 504, student still must self-advocate with postsecondary institution
Legal obligations of employers and postsecondary institutions are very different from K-12 public schools
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There are No IEPs after High School, but waiving a 504 isn’t
magic either
Services are not received by entitlement
Students must request and demonstrate eligibility – there are no child find obligations anymore
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Self-Advocacy is Critical
Cannot deny admission to qualified (academic and technical standards) students on basis of disability
Must make necessary changes to policies and procedures (academic adjustments such as substitution of courses, classroom accommodations, or waiving full-time financial aid requirements for students who must take fewer courses at a time)
Must ensure student is not discriminated against because of absence of needed auxiliary aids (i.e. notetakers, interpreters, audio text)
Not required to provide personal accommodations (attendants, devices for personal use, etc.) nor fundamentally alter a program
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Postsecondary Institutions & 504
IDEA or 504 services in high school do not guarantee eligibility for accommodations in postsecondary education (colleges entitled to make own determination!)
Student must self-identify and provide documentation of disability
Must be qualified student: meet the academic and technical standards for admission
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College Eligibility Determination
College Responsibility:Set reasonable standards for documentation and specify how much documentation is needed Use an “interactive process” to determine appropriate
academic adjustments and auxiliary aids and services that meet the student’s individual needs
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Disability Documentation
Student Responsibility:•Assessment to identify disability and functional limitations and need for academic adjustment or auxiliary aids or services
High School CollegeEligibility Determination
Evaluation conducted or paid by school district
Documentation supplied by student
Legal Responsibility
Provide FAPE Ensure non-discrimination
Procedural Safeguards
Due process or OCR complaint
Internal grievance or OCR complaint
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Side-by-Side Comparison
Contact the college’s disability or student services office and ask what their procedures are for requesting accommodations or auxiliary aides
Provide a copy of documentation of disability and need for academic adjustment or auxiliary aid or service
Utilize summary of performance required under IDEA Put any requests in writing as soon as possible! Remember that it is the student’s responsibility to follow
the procedures Communicate and work cooperatively
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Tips for a Smooth Transition
ADA Amendments Act of 2009 Section 504, Title II, and Students with Disabilities in Public Schools (OCR) The 411 on Disability Disclosure Workbook (National Collaborative on Workforce and
Disability) Section 504 of the Rehabilitation Act of 1973 Regulations Transition of Students with Disabilities to Postsecondary Education: A Guide for High Schoo
l Educators (OCR)
Free Appropriate Public Education for Students with Disabilities: Requirements under Section 504 of the Rehabilitation Act of 1973 (OCR)
OCR Complaint Processing Procedures Frequently Asked Questions About Section 504 and the Education of Children with Disabiliti
es (OCR)
Academic Adjustments & Auxiliary Aids & Documentation (OCR) Students with Disabilities: High School to College (OCR) Commonly Asked Questions About Child Care Centers and the Americans with Disabilities
Act (DOJ)
Americans with Disabilities Act Questions and Answers (EEOC)
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References
http://www2.ed.gov/about/offices/list/ocr/index.html
National OCR Headquarters: 800-421-3481
Boston regional OCR office: (617) 289-0111
Complaint Information:http://www2.ed.gov/about/offices/list/ocr/qa-complaints.html
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Office for Civil Rights