504 Evaluation Issues Jefferson Parish School Board August 23, 2017 Wayne T. Stewart, J.D., Ph.D. 8/23/2017 © 2017 Hammonds, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

RTI and Evaluation Referrals School districts need to have “data sufficient for the SBLC to recommend that a comprehensive individual evaluation be conducted by pupil appraisal personnel.” The trigger for initiating a 504 evaluation is suspicion that a student has a disability under 504. 8/23/2017 © 2017 Hammonds, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

SBLC & 504 Suspicion SBLC Team may not suspect a student of having a disability requiring specialized instruction per the IDEA; however, this is not an all or nothing proposition Any student with a physical or mental impairment that limits a major life activity should be referred for possible 504 evaluation, and, if determined eligible and necessary, receive services via a 504 Plan 8/23/2017 © 2017 Hammmons, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

Parental Requests for Evaluation A parent’s request for Section 504 (or IDEA) evaluation does NOT mean the student must be evaluated. The first step is that the parent’s request must be considered by SBLC. 8/23/2017 © 2017 Hammonds, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

Parental Requests for Evaluation HOWEVER, IDEA and Section 504 require responsive WRITTEN notice to the parent whether the system will (1) grant the parent’s request for evaluation by offering parent to sign a consent for evaluation form; OR (2) deny the request for evaluation – consistent with IDEA notice requirements. See 34 C.F.R. § 300.503. 8/23/2017 © 2017 Hammonds, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

IDEA v. Section 504: Major Difference IDEA: disability (per an IDEA category) AND need for “specialized instruction” 504: focus on eligibility (i.e., physical or mental impairment that substantially limits major life activity) for purposes of NON-DISCRIMINATION in programs, services, and activities in public schools 8/9/2017 ©2017 Hammonds, Sills, Adkins & Guice, LLP. For Educational Use Only

IDEA v. Section 504: Major Difference IDEA: If a child does not NEED “specialized instruction”, then the child does not qualify legally 504: In contrast, eligibility is separate from determination of need for supplementary aides and services. It’s possible that a student who is eligible under 504 gets nothing – based on no “need”. In other words, it’s a two-step process. 8/9/2017 ©2017 Hammonds, Sills, Adkins & Guice, LLP. For Educational Use Only

IDEA v. 504: Evaluations While the eligibility criteria differ, the general evaluation process parameters are very consistent: Individualized determinations Non-discriminatory assessment (e.g., language, race, culture) Reliable and valid assessment processes and tests Multiple measures to make eligibility determination Parental consent required for initial evaluation Evaluators are “knowledgeable” (e.g., meet established and formal State, national, or professional certification or licensure criteria) 8/23/2017 © 2017 Hammonds, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

IDEA v. 504: Evaluations/Services Additional consistencies between the laws: Established procedures Decision by group (i.e., “team”) of persons – NOT individuals Placement in least restrictive environment (LRE) Decisions made in conformity with mandates regarding: Academic Setting Non-academic settings 8/23/2017 © 2017 Hammonds, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

How Much Info is Enough ? Team decision Multi-source 8/23/2017 © 2017 Hammmons, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

Automatic / Per Se 504 Eligibility ? Not really OCR: Virtually all students with certain impairments should qualify under 504 8/23/2017 © 2017 Hammmons, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

Medical Diagnosis NOT Necessary Diagnosis may not be sole source of 504 eligibility determination Cannot DELAY evaluation School’s responsibility to pay for it, if school deems medical evaluation or diagnosis necessary 8/23/2017 © 2017 Hammmons, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

Grades/Academic Success Grades alone are NOT sufficient to determine disability status Grades and academic success are only one indicator – does not show what efforts and/or resources were needed to obtain success 8/23/2017 © 2017 Hammmons, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

How Do You “Unmitigate” ? Detailed History Documents Interviews In-school AND out-of-school activities and behaviors Research on course of impairment when not mitigated Condition, manner & duration 8/23/2017 © 2017 Hammmons, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

504 Evaluation Time Lines NO explicit time lines under 504 MAY Default to Bulletin 1508 60 business days HOWEVER, must consider reasonableness of time to gather information & to determine whether disability suspected if disability suspected, time taken to evaluate 8/23/2017 © 2017 Hammmons, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

IDEA v. 504: Procedural Protections Generally, IDEA affords parents and students greater procedural protections However, 504 procedural protections are quite broad 8/23/2017 © 2017 Hammonds, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

IDEA v. 504: Procedural Protections Procedural rights must be provided to parents at least yearly and typically any time there is a meeting which address the identification, evaluation, placement, or any other provision of FAPE for the child Any time you proposed to do something or decline to do what a parent wants regarding any provision of FAPE, you must give written notice to the parent – IDEA requires the notice be consistent with 34 C.F.R. § 300.503 Notice under 504 should mirror the requirements under IDEA 8/23/2017 © 2017 Hammonds, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

Over-Identification: Section 504 Over-identification of students as students with a disability under Section 504 can occur by assuming either of the following: All children with a diagnosis have a disability under 504; or All children with an impairment are substantially limited in a major life activity. The U.S. Fifth Circuit Court of Appeals stated, “Merely having an impairment does not make one disabled for purposes of the ADA.” 8/23/2017 © 2017 Hammonds, Sills, Adkins & Guice, LLP. For Educational Purposes Only.

QUESTIONS ? 8/23/2017 © 2017 Hammonds, Sills, Adkins & Guice, LLP. For Educational Purposes Only.