Section 504 Lessons Learned Oregon Department of Education Office of Educational Improvement & Innovation Winston Cornwall, Education Program Specialist Civil Rights/Equal Educational Opportunity Phone (503) Fax: (503) TDD: (503)

Background Information 504 most frequent civil rights complaints lodged with OCR. Oregon averages one OCR complaint monthly. 504 = 50% Title IX = 25% Title VI = 15% Title VI/ELL = 10%

Key 504 Definition A physical or mental impairment that substantially limits a major life activity. Qualification is based on all three items !

What determines substantially limits? Student must be unable to or significantly restricted as to the condition, manner or duration under which he/she can perform (the major life activity) as compared to the average person. Person who takes inordinately more time than others to complete a task (ADA) Factors team should consider in making decision: –Nature/severity of the impairment, –Duration/expected duration of the impairment, –Permanent/long term impact resulting from the impairment.

What are major life activities? Major life activities (regulatory list): –Seeing, hearing, speaking, breathing, walking –Caring for oneself, performing manual tasks, –Working, learning. Major life activities (determined by courts): –Reproduction (and accompanying activities) –Reading, writing –Thinking, concentrating, sleeping –Interacting with others: Characterized on a regular basis by severe problems, for example consistently high levels of hostility, social withdrawal, or failure to communicate when necessary.

What is a (reasonable) accommodation? Accommodation means reasonable, not perfect. –Auto & Airplane Analogies General examples: –Large print/Braille books for visually impaired –Adapted spoons for the physically impaired –Interpreter for the deaf or hard of hearing Assessment examples –Oral, individual or separate administration, –Extended time or multiple test sessions.

How do 504 & IDEA compare? Section 504 –Civil Rights Act –No federal funding –Basic state school funding –504 Coordinator –“Substantially limits” –Accessibility regulated –Evaluation from variety of sources –Reevaluation required before significant change –No provision for independent evaluation –Requires grievance procedure –Requires due process IDEA –Education Act –Federal funding formula –Increased state support –Special Education Director –Specific categories –Requires modifications –Comprehensive evaluation assessing all related areas –Reevaluation required every three years –Provides for independent evaluation if disagreement –No grievance procedure req. –Requires due process

How do 504 & IEP plans compare? 504 Plans –Education designed to ensure equal opportunity –Regular education with accommodations and modification –Team “knowledgeable about child” (teachers, counselor, building administrator, others as dictated by impairment analysis and/or accommodation Individual Ed. Plans –Education designed to confer benefit performance –Specially designed instruction to mitigate adverse performance impact –Team “knowledgeable about child” and assessment related to suspected disability (teachers, counselor, special education teachers and aides, other specialists

Key Factors for Compliance Procedural safeguards are perhaps the most important factor with regard to 504 considerations 504 Plan is essentially a contract (and thus is a literal document) Educators generally considered expert with regard to specific decisions made in the 504 Plan 504 is a non-discrimination law, thus comparative treatment and access to services district-wide are essential

Areas of Concern Procedural safeguards and requirements are crucial: –District policy (504/Non-discrimination) –Notice obligations –Record requirements –Grievances, appeals and hearings Impact, not intent is the barometer for discrimination –Responses to unintentional actions resulting in adverse or disparate impact is a major problem regarding students!

Accommodations Yelm (WA) Community Schools 2004 Accommodations listed “as needed” upheld. –Parent asserts district did not modify grades, assignments and testing and consult with the Spec. Ed. teacher. –IEP provides for services on an “as needed” basis. –OCR investigation show teachers provided accommodations except the first two weeks of school.

Damages Mark H./Rie H. v. Lemahieu Hawaii 2005 Parents can’t get 504 damages for IDEA violations –Assert discrimination claim for two students with autism. –Parents receive a favorable award for IDEA claim. –Dist. developed inappropriate IEPs/procedural violations. –Claim “ incompatible with the intent….of 504 & IDEA. –504 corrects discrimination “within IDEA framework.” –No evidence of deliberate indifference by the district.

Discipline Seattle (WA) School District No Strong grades, academic performance don’t obviate need for 504 evaluation. –Dist. denies student with bipolar disorder 504 evaluation. –Student expelled from prior high school for behavior. –Dist. should have evaluated after receiving disability notice. Failure to develop plan is denial of FAPE. –Dist. agrees to train its staff, provide compensatory ed. –Also re-enroll, promptly follow appropriate evaluation procedures and plan for a suitable education program.

Discipline Oak Harbor (WA) School District Evaluation delay results in ‘significant change’ in placement –District denies FAPE when it change placement without satisfying 504 change of placement procedures. –Excludes student from science class for discipline. –Suspends student for 12 days w/o an evaluation. –Parent request evaluation, but district delayed for a year. –District continues to use plan not based on current eval. –OCR concludes evaluation required before action.

Discrimination Hawaii (HI) State Dept. of Ed OCR approves disability complaint procedures –Procedures disseminated to the public and available on Internet. –Describe steps in filing, investigation and resolutions. –Inform on timelines, on-site visits and corrective actions. –OCR concludes procedures were prompt and equitable; investigations adequate, reliable and impartial.

Section 504 and IDEA Eastmont (WA) School District No District follows kindergartener’s 504 plan, correct procedural errors –IEP provisions addressing needs of student with Type I diabetes were appropriately implemented. –Rejected claim dist. failed to implement plan and communicate with parents. –District monitored symptoms and blood sugar levels. –School nurse provided training and communicated with parents.

Section 504 and IDEA Eastmont (WA) School District No District follows kindergartener’s 504 plan, correct procedural errors –Dist. fails to comply with 504 procedural requirements. –No notice of changes in the student placement when it implemented the plan and made changes in the plan. –No notice of due process rights. –District agrees to review/revise 504 procedures. –Description of specific procedures it must follow to provide notice to parents before implementing changes.

Section 504 and ELL (Title VI) Eugene (OR) School District 4J 2007 District does not respond to student’s needs in a reasonable, timely and effective manner. –Delays occurred in basic assessment and evaluation for services. –Communication w/parents was not in a language they understood. –Delays and limited communication with parents regarding implementation of the plan.