IDEA & Section 504 · 2019-05-28 · IDEA vs. Section 504 Eligibility Under Section 504 Major Life...

IDEA vs. Section 504 Guidelines for School Level 504 Coordinators

Davina S. Woods Hancock County Schools

504 Compliance Officer

Fagen Friedman & Fulfrost LLP

1

Overview

• IDEA and Section 504 compared

• Moving between Section 504 and the

IDEA

• Students at the Borders: SLD, ADD,

Physical Disabilities


2

IDEA vs. Section 504


3

Eligibility

FAPE

Process & Documents

IDEA vs. Section 504 Eligibility Under IDEA

Two questions:

• Does the student have a disability in

an IDEA eligibility category?

• Does the student require special

education and related services?


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IDEA vs. Section 504 Eligibility Under Section 504

Two questions:

• Does the student have a physical or

mental impairment?

• Does the impairment substantially

limit a major life activity?


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Physical or Mental Impairment: “Any physiological disorder or condition, cosmetic

disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; specific sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genitor-urinary; hemic and lymphatic; skin; and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”


6

34 C.F.R. § 104.3(i).

cont.


• If complete medical evaluation is

necessary to determine eligibility, parent

may be asked to obtain and fund

evaluation

• If parent refuses, district must fund

evaluation


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Compton (CA) Unified School District (OCR 2008)

cont.


Substantially Limits: New definition

– Rejection of court’s

“severely restricts”

– “Substantially limits” to be construed

broadly


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cont.

Pub.L. No. 110-325 (September 25, 2008) 122 Stat. 3553;

29 U.S.C. § 705; 42 U.S.C. § 1210

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Episodic Disabilities and Remission:

Ask: Would impairment substantially limit

a life activity when active?


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cont.

Pub.L. No. 110-325 (September 25, 2008) 122 Stat. 3553; 42 U.S.C. § 1210


Mitigating Measures:

• Cannot consider ameliorative effects of

mitigating measures (i.e. medication,

hearing aids, learned behaviors,

modifications)

• EXCEPT eye glasses and contact

lenses

Fagen Friedman & Fulfrost LLP 10

cont.

Pub.L. No. 110-325 (September 25, 2008)122 Stat. 3553; 42 U.S.C. § 1210

Practice Pointer

Until districts receive further guidance:

– If a student would be eligible when

impairment is active, make the student

eligible

– Create a plan to address student’s needs

when the impairment is active


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Major Life Activities:

• Under the new law, major life activities include (but are not limited to) – Caring for oneself, performing manual tasks,

seeing, hearing, eating, sleeping, walking, standing, lifting, speaking, reading, learning, concentrating, thinking, communicating and working

• Under the regulations previously developed major life activities included “learning”


cont.

Practice Pointer

• When determining eligibility under

Section 504, determine whether any

major life activity is substantially limited

• Do not limit consideration to “learning”


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Practice Pointer

The following behaviors are not themselves a physical or mental impairment:


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– Lack of motivation

– Excessive absences

– Early dismissal

– Inadequate classroom

attendance

– Difficulties at home

– Incomplete work

Practice Pointer

Be methodical and document your method!

Always ask two questions when determining

Section 504 eligibility:

1) Does the student have a physical or mental

impairment?

2) Does that impairment substantially limit a major

life activity?

Don’t forget to properly document the responses!


IDEA vs. Section 504 FAPE

IDEA: – Specially-designed instruction

– No cost to parent

– Meet unique needs of student

– Educated in least restrictive environment


20 U.S.C. §§ 1402(29), 1412(a)(5);

Board of Educ. of the Hendrick Hudson Central School Dist. v.

Rowley (1982) 458 U.S. 176, 200


Section 504:

– Regular or special education and related aids and services designed to “meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons.”

– Educated in the least restrictive environment


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34 C.F.R. §§ 104.33, 104.34; J.D. v. Pawlet School Dist. (2nd Cir. 2000) 224 F.3d 60; 34 C.F.R. Part 104, Appendix A. (Emphasis added)


• FAPE requirements in IDEA and Section

504 regulations are different

• Section 504 requires comparison between

meeting needs of disabled and

nondisabled students

• IDEA has an absolute standard – providing

some educational benefit


Mark H. v. Lemahieu (9th Cir. 2008) 513 F.3d 922

IDEA vs. Section 504 Process & Documents

IDEA: Notice of Procedural Rights

District must provide notice of rights:

– Upon initial referral or evaluation

– When a complaint is filed

– When disciplinary action taken

– At parent request


34 C.F.R. §§ 300.500 et seq.


IDEA: Evaluation

• Evaluate in all areas of suspected disability

• Adhere to strict timelines

• Use a variety of assessment tools

• Evaluations by trained and knowledgeable persons


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20 U.S.C. § 1414(b); 34 C.F.R. § 300.304


IDEA: IEP Team • Team makes eligibility, placement, and service

determinations

• Required members: – Parent

– General education teacher

– Special education teacher

– Administrator

– Individuals who can interpret assessment results

– Other individuals with knowledge or special expertise regarding child

– When appropriate, the student


20 U.S.C. § 1414(d)(1)(B)


IDEA: Appropriate Document – IEP

• Every eligible student must have an IEP

• Contents of the IEP:

– Eligibility

– Educational needs

– Present levels of performance

– Goals/objectives

– District’s offer of FAPE


20 U.S.C. § 1414(d)


Section 504 Required Procedures:

• Notice

• Opportunity to examine records

• Impartial hearing with opportunity for

parent to be represented by counsel

• Review procedure


34 C.F.R. §§ 104.33, 104.34, 104.35, 104.36


Note:

• Typically, OCR does not investigate

substance of educational decisions

• Focus is on whether district followed

proper procedures


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http://www.dep.state.fl.us/waste/categories/pcp/images/hh00062_.gif


Section 504: Evaluation

• School district must develop standards and

procedures to ensure that assessment materials are:

– Validated

– Administered by trained personnel

• to reflect student’s ability – not impaired skill

– Designed to assess specific areas of educational

need


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• When conducting evaluation, school district

must:

– Draw upon variety of sources

– Create procedures to ensure information is

documented and considered

– Ensure each placement decision is made

by the appropriate team


34 C.F.R. § 104.35; Gloucester County (VA) Public Schools (OCR 2007)

cont.


Section 504: Decision Team

• Eligibility and placement decisions

made by “a group of persons, including

persons knowledgeable about the

child.”


27



• District must designate a “Section 504 Coordinator”

Colorado Springs (CO) School Dist. #11 (OCR 2008)

cont.


Section 504: Appropriate Document

• Districts most commonly develop a

Section 504 plan

• May develop an IEP to comply with

Section 504’s FAPE requirement


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Practice Pointer

• A Section 504 plan is not a

“consolation prize”

• Emphasize appropriateness and benefits

of Section 504 plan

• IDEA services may not be appropriate

• IDEA compliance is one way of meeting

section 504


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Moving Between

Section 504 and the IDEA


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Moving Between Section 504 and the IDEA

What should a district do when a

student’s Section 504 plan is no longer

appropriate?


32



Consider:

– Re-evaluating student

– Modifying the Section 504 placement

and/or services, or

– Convening IEP team meeting to

determine IDEA eligibility


33


CAUTION

Under Section 504, districts must

evaluate prior to initial placement or

significant change in placement

– Error on side of evaluation if moving

student into a more or less restrictive

setting Fagen Friedman & Fulfrost LLP

34

20 U.S.C. § 1414; 34 C.F.R. § 104.35


Parent Rejects Section 504 Plan

Scenario:

– District offers Section 504 plan

– Parent rejects

– Parent requests IEP

What should you do?


35

cont.


• Implement Section 504 plan without

parent consent, if district’s policy

allows, and

• Conduct IDEA evaluation, if this is

what parent wants


36

Practice Pointer

Determine parent’s underlying concern

– Is parent requesting IEP or a special

education assessment?

– Discussion with parent may resolve

concerns and avoid assessment process


37

20 U.S.C. § 1414


From IDEA to 504 scenarios:

– Student no longer eligible under IDEA

– Student found ineligible under IDEA

– Parent revokes consent for IDEA services

*Be prepared for parent request for Section 504 services


38


If an IEP team finds a student ineligible

under the IDEA, can the same team

immediately thereafter find the student

eligible for Section 504 services?


39



YES -

• So long as student has a mental or physical impairment that substantially limits a major life activity

• Conducting consecutive IEP and Section 504 meetings is okay

HOWEVER . . .


40


CAUTION:

• It’s better to adjourn IEP meeting and convene Section 504 meeting at later date

• This will avoid:

– Perception of “consolation prize”

– Potential for excluding necessary persons

– Risk of undertaking wrong analysis to determine eligibility

– Failure to properly notice Section 504 meeting


Letter to Anonymous (OCR 1991)


Rejection of IDEA:

• Parent not required to accept initial

IDEA services

• Parent may revoke prior consent

• If parent revokes, district may not

continue to provide special education

and related services


34 C.F.R. § 300.300(b)(4).


If the district offers a FAPE through the

IDEA and the student’s parent refuses

to consent to the initial provision of

IDEA services or revoke consent to

IDEA services, is the district required to

create a Section 504 plan?


43



Satisfy the IDEA

• Districts are responsible for:

– Creation of appropriate IEP

• Districts are not responsible for:

– Obtaining parent consent to the IEP

MAKE THE OFFER


44


Section 504 Plan?

• Probably not required, if parent has

rejected IEP

• But certainly permissible


45



Child Find

District must:

– Actively seek out students eligible for

Section 504 services, including those

attending private schools

– Conduct Section 504 evaluation,

if appropriate


46

34 C.F.R. §§ 104.31; 104.35(a)

Students at the Borders


IDEA? Section 504? Or General Ed?

SLD, ADD/ADHD, Physical Disabilities

Students at the Border SLD: IDEA Eligibility

Student has: – A “disorder in one or more of the basic

psychological processes involved in the understanding or in using language, spoken or written.”

– Manifests in an “imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.”

Student requires special education and related services


20 U.S.C. § 1401(30)

Practice Pointer

Reading Fluency

• The 2006 federal regulations added reading fluency skills to list of qualifying areas for eligibility determinations

• If district uses either RTI or discrepancy model, district must determine whether student is performing adequately for age/grade level in all qualifying areas, including reading fluency skills


34 C.F.R. § 300.309

Students at the Border

SLD: Section 504 Eligibility

Two Part Analysis:

• Physical or mental impairment

– Comments to Section 504 Regulations

state that SLD constitutes a physical or

mental impairment

• Must substantially limit a major life

activity


20 U.S.C. § 1401(30); 34 C.F.R. Part 104, Appendix A

Practice Pointer

A student may not qualify under

Section 504 if he/she is successful in

the general education setting without

special education supports, despite

demonstrating a discrepancy

between ability and performance


51

Students at the Border SLD: Section 504 Eligibility

Facts - Fourth grade:

• SST team referred student for comprehensive special education assessment

• IQ score of 92

• Achievement scores ranged from 85 to 110

• Assessor concluded no severe discrepancy between ability and achievement

• District found student ineligible for IDEA services


52

Student v. Tracy Joint Unified School District (OAH 2007)


Facts - Fifth grade:

• GPA ranged from 2.0 to 2.5

• District found student ineligible for IDEA

services

• Parent disagrees

• Obtained IEE that concluded student qualified

as SLD due to processing disorders and a

severe discrepancy in math calculations



cont.


OAH Ruling:

No severe discrepancy based on private

and district assessments

Student ineligible for IDEA services

under category of SLD


cont.


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Eligible under Section 504?

Probably not. Unlikely that there is a

physical or mental impairment – Earned average grades

– Failed to show discrepancy between ability and

performance


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cont.


Facts:

• Student originally eligible as SLD

• Convened IEP meeting to review additional assessments

• Student skills commensurate with overall cognitive functioning

• Received passing grades

• Team concluded no severe discrepancy or processing deficiency

• Ineligible under category of SLD


Lancaster School District v. Student (OAH 2007)


OAH Ruling:

Ineligible for IDEA services under

eligibility category of SLD


cont.





Probably not. Unlikely that there is a

physical or mental impairment – Earned average grades

– Failed to show discrepancy between ability and

performance


58

cont.


Students at the Border ADD/ADHD: IDEA Eligibility

• Student qualifies for IDEA services under “Other Health Impaired” if he/she has: – Limited strength, vitality or alertness, including a heightened

alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, such as attention deficit disorder, or attention deficit hyperactivity disorder, among others, which adversely affects a student’s educational performance

• Student requires special education and related services


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20 U.S.C. § 1401(3); 34 C.F.R. § 300.8(c)(9)

Students at the Border

ADD/ADHD: Section 504 Eligibility

Two Part Analysis:

• Physical or mental impairment

– According to OSERS, ADD and

ADHD constitute a physical or mental

impairment

• Must substantially limit a major life

activity


Office of Special Education and Rehabilitative Services (OSERS 1991)

Students at the Border ADD/ADHD: Section 504 Eligibility

Facts:

• In March 2006, parents requested special education assessment due to possible ADD or ADHD

• Health assessment did not show impulsive behavior

• In class, student showed lack of concentration

• Student performed at average academic level

• In July 2006, student obtained medical diagnosis of ADHD


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Santa Monica-Malibu Unified School District (OAH 2006)


OAH Ruling:

Student had ADHD based on medical

diagnosis

However, student ineligible under IDEA

because condition did not “adversely

affect educational performance”


Santa Monica-Malibu Unified School District (OAH 2006)




Probably not.

• Due to medical diagnosis, OSERS would

consider student to have physical or mental

impairment

• However, no showing of substantial limitation

of a major life activity


63

cont.


Facts:

• Second grade – Diagnosed with ADHD

– Participated in general education setting

– Assessed for and placed in GATE program

– Scored average or above on standardized and ability tests

• Fourth grade – Earned As, Bs, and Cs


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Student v. Bonita Unified School District (OAH 2006)


Facts: • Fifth grade

– Scored “basic” and “proficient” on STAR testing

– Earned all As and Bs

– Promoted to middle school

• Sixth grade – Scored “basic” and “proficient” on STAR testing

– Earned a C in English and a D in Social Studies

• Seventh grade – Scored “proficient” in STAR testing

– Earned all Cs

– Parents advised district of ADHD and anxiety disorder


65

cont.


OAH Ruling: Despite ADHD diagnosis, student

ineligible under IDEA

Failed to show need for special education and related services

Poor grades were attributed to failure to complete homework, not inability to learn



cont.




Possibly.

• Student has a physical or mental impairment

• Student may be able to show that the ADHD substantially limits a major life activity, such as the ability to “concentrate” or “focus”



Students at the Borders Physical Disabilities

IDEA Eligibility

• Qualifying physical disabilities: – Deafness

– Hearing impairment

– Blindness

– Other visual impairments

– Orthopedic impairments


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Section 504 Eligibility

• Student must have a physical or mental impairment that substantially limits a major life activity

– Some physical impairments may not be obvious

• Cannot take into account mitigating measures


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Section 504 Discrimination

• May not prevent eligible Section 504

student from participating in

programs/activities due to inaccessibility to

district facilities

• Must provide reasonable accommodations

to allow student to participate in

programs/activities outside of school day


34 C.F.R. §§ 104.4; 104.12; 104.21

Students at the Borders

Section 504 & IDEA are safety nets.

However, the best outcome is

when they are not needed!


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Thank you!

Davina S. Woods,504 Compliance Officer

Hancock County Schools

[email protected]

706.444.7403

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mailto:[email protected]

IDEA & Section 504 · 2019-05-28 · IDEA vs. Section 504 Eligibility Under Section 504 Major Life...

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