SECTION 504 Rehabilitation Act of 1973 Developed by Contra Costa SELPA

Section Facilitated by Contra Costa SELPA Staff

Section Purpose The purpose of this training is to teach and inform administrators, general and special education teachers and staff of the requirements under Section 504 of the Rehabilitation Act of 1973.

Section Agenda The Law Requirements Free and Appropriate Public Education Definitions Eligibility Evaluation and Qualifying Elements of a 504 Plan Discipline District Requirements Procedural Requirements Administrator or Designee

Section A Broad Civil Rights Law: Rehabilitation Act of 1973 Prohibits discrimination in many areas including handicapped persons by schools receiving federal financial assistance. It includes all programs or activities of a school which receives federal funds.

Section Section 504 Ensures That education provides a full range of accommodations for student with special needs in order to participate and benefit from general education and activities.

Section Summary If a school district is meeting the needs of children without disabilities to a greater extent than it is meeting the needs of students with disabilities, then discrimination is occurring.

Section District Requirements School districts are required to annually identify and serve every qualified handicapped person residing within the district’s jurisdictional boundaries and to take appropriate steps to notify such person of the district’s duties under Section 504.

Section District Requirements (cont.) Equal access, with accommodations, if appropriate, includes all areas of curricular and extra curricular activities, programs, and services available to other students. All educational programs must be accessible to disabled students, including daycare, after- school care programs, sports, dances and other extracurricular activities.

Section District Requirements (cont.) The Office of Civil Rights had concluded that qualified disabled children may not be categorically denied the opportunity to participate in non-educational programs on the basis of their disabilities. Parents of children with disabilities may not be required to supply aides or babysitters during non-educational programs when the same requirement does not apply to parents of children without disabilities.

Section District Requirements (cont.) Parents of children with disabilities may not be charged more for non-educational programming than the parents of children without disabilities. (OCR) Senior Staff Memo, 17 IDELR 1233 (1990).)

Section Definition: Discrimination Based on Disability No otherwise qualified individual with a disability…shall, solely by reason of his or her disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.

Section Free and Appropriate Public Education School districts must provide a free and appropriate public education to each qualified handicapped person regardless of the nature or severity of the person’s handicap. (Section )

Section FAPE (cont.) The provision of an appropriate education is the provision of regular or special education and related aids and services that: Are designed to meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons are met and Are based upon the adherence to procedures that satisfy the requirements of the law (Section (B)(1))

Section Definition: Handicapped Any person who has a physical or mental impairment which substantially limits one or more major life activities; has a record of such an impairment or is regarded as having an impairment.

Section Definition: Physical Impairment Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following systems:  Neurological  Musculoskeletal  Special sense organs  Cardiovascular  Reproductive  Genito-urinary  Hermic and lymphatic  Skin and endocrine  Digestive

Section Definition: Mental Impairment Any mental or psychological disorder such as: Mental retardation Organic brain syndrome Emotional or mental illness Specific learning disability

Section Definition: A Major Life Activity Functions such as caring for oneself Performing manual tasks Walking Seeing Hearing Speaking Breathing Learning Working Sitting Standing Lifting Reaching Thinking Concentrating Interacting with others Reading

Section Major Life Activities (cont.) Major life activities are “those basic activities” that the average person in the general population can perform with little or no difficulty.

Section Definition:Substantial Limitations In determining whether a student’s disability substantially limits a major life activity entitling the student to FAPE, the district must focus on both: Learning and Behavior

Section Definition: Substantial Limitations (cont.) Learning In determining whether a student’s mental or physical impairment “substantially limits” the major life activity of “learning,” the district should compare the student’s academic progress to that of the “average child,” not a child of similar intellectual potential.

Section Definition: Substantial Limitations (cont.) A student is not “substantially limited” simply because the student is not reaching his or her potential.

Section Definition: Substantial Limitations (cont.) Behavior To determine whether a student’s mental or physical impairment “substantially limits” a major life activity, the district must consider whether the student’s behavior substantially limits the student’s ability to participate in school (e.g., attend school without suspensions or expulsions; participate in non-academic activities).

Section Eligibility If the student meets the definition of a qualified handicapped person, the student is eligible for 504 accommodations. If a student is achieving at or above grade level, there is no substantial limitation in learning and is not eligible for 504 accommodations.

Section Eligibility (cont.) Determining disability in the corrected state In a trio of related cases, the Court has ruled that mitigating measures such as corrective lenses or medication must be taken into account when judging whether a student or employee is disabled. The student or employee must be judged in the corrected state.

Section Eligibility (cont.) As a result of this corrected state case-by- case standard, the Court ruled that students with correctable impairments such as poor eyesight, diabetes and heart disease were not disabled under the facts of each case. Because each situation must be considered on a case-by-case basis, however, the Court’s rulings do not apply to every student or worker with such impairments. Therefore, this may limit students who are eligible for Section 504 Plans.

Section Evaluation Draws on a variety of resources Administered by trained personnel Placement is made by a group of people who are knowledgeable about the student May not require district to do standardized testing “… is regarded as having an impairment” may be all that is required

Section Students who do not qualify under the Individuals with Disabilities Education Act (IDEA ’97) may qualify under Section 504 Examples: Students with Attention Deficit Disorder Students with Attention Deficit and Hyperactivity Disorder All who qualify under IDEA are eligible under Section 504 Qualifying: IDEA Or Section 504

Section Qualifying: Attention Deficit Disorder A student is eligible for Section 504 if the ADD or ADHD impacts the student’s educational program and substantially limits a major life activity, such as learning Depends on the severity of the condition

Section Qualifying:Attention Deficit Disorder (cont.) A student who has a disability under Section 504: Is entitled to receive any special education services the placement team decides are necessary for the student to receive FAPE. May receive related aids and services in the regular education setting. Must be provided regular or special education programs, including modifications and supplementary aids and services, based on individual needs. Must have a Section 504 Plan which specifies appropriate specialized instruction or services

Section Qualifying: If an Evaluation is Warranted … Section 504 requires evaluation procedures to ensure: Evaluation materials have been validated for the specific purpose for which they have are used and are administered by trained personnel. Evaluation materials include those that assess educational need and not merely a single general intelligence test. Tests that are used do not reflect a student’s impaired sensory, manual or speaking skills.

Section A student exiting special education has already been determined to have a disability. The district should initiate a Section 504 evaluation to determine whether the student has a disability which substantially limits one or more major life activities. Qualifying: If an Evaluation is Warranted …

Section Qualifying: If an Evaluation is Warranted … A district only has an obligation to evaluate if it suspects that the student has a disability that would result in Section 504 eligibility. The parent must be provided with written notice of the district’s decision and inform the parent of due process rights under the District’s Section 504 Policies.

Section Qualifying: If an Evaluation is Warranted … Parents have a right to: Contest determination Examine relevant records An impartial hearing Have an attorney present An opportunity for review

Section Qualifying: The District Shall Ensure That… Documentation is maintained Placement decision is made by a group of persons knowledgeable about the student Parent has access to records Parent receives notification but is not required to participate in meetings Parent is provided notification of parent rights under the district’s Section 504 policies

Section Specific Steps … Supporting evidence that the condition substantially limits the ability to learn The student is entitled to accommodations to the general education curriculum A 504 plan is developed Accommodations are implemented The 504 plan is periodically reviewed and reevaluated

Section Elements of a Legal Section 504 Plan Section 504 requires that schools design an individualized program to meet the student’s need. (34 CFR (b)(1).) A 504 Plan must address the five following concerns: Disability Assessment Procedures Educational Impact FAPE LRE

Section Section 504 Plan (cont.) Disability Nature of the student’s disability and the major life activity it limits Assessment Procedures The basis for determining the disability Evaluation procedures are documented in the plan (34 CFR (b).)

Section Section 504 Plan (cont.) Educational Impact Description of how the disability affects the child’s education FAPE Requirement that the school will provide services that “are designed to meet the individual needs of handicapped persons as adequately as the needs of non-handicapped persons are met” (34 CFR (b)(1).)

Section Section 504 Plan (cont.) Least Restrictive Requirement The LRE requirement is similar to that which is mandated under IDEA (34 CFR )

Section Discipline & Section 504 The Office of Civil Rights has opined that the same procedural protections available to students eligible under IDEA ’97 are available to students eligible under Section 504. The Office of Civil Rights recommends that districts maintain a formal, written discipline policy for students who are disabled under Section 504.

Section Discipline & Section 504 Section 504 does not contain a “stay put” provision If a dispute arises regarding disciplinary action against a student eligible under Section 504, the student is not entitled to remain in his/her current educational placement pending the outcome of the dispute

Section Change in Placement Honig v. Doe The suspension or expulsion of a disabled student may constitute a change in placement. 34 EHLR sec (a) An individual evaluation must be conducted before any action is taken with respect to either the initial placement of a disabled student in a regular or special education program or to any subsequent significant change in that placement, including removal from school for more than 10 school days in a school year.

Section Change in Placement (cont.) A series of suspensions that are each 10 days or fewer in duration may create a pattern of exclusions that constitute a significant change in placement. Relevant factors to consider The length of each removal The total amount of time the student is removed from school The proximity of the removals to each other

Section Change in Placement (cont.) Before expelling a student who has a 504 Plan: Conduct an evaluation to determine: Whether the misconduct is a result of the disability Whether the current placement is appropriate Convene a meeting to determine: Whether a behavior plan is necessary Whether modifications in the student’s educational program or placement is necessary

Section Change in Placement (cont.) Requirements Written notice to parents Determination that the student’s misconduct was not a manifestation of the disability The basis for that determination An explanation of applicable procedural safeguards, which includes the rights of the parents To initiate an impartial Section 504 hearing To seek administrative or judicial review

Section Change in Placement (cont.) Discipline An evaluation must be conducted prior to any significant change of placement (e.g., suspensions of more than ten (10) school days and expulsion).

Section Use of Drugs Current illegal use of drugs is not covered under Section 504 or ADA Disciplinary action pertaining to the use or possession of drugs is the same as for non- disabled students A person with a history of drug use who has been successfully rehabilitated or is participating in a rehabilitation program and not using drugs is covered under both laws.

Section Drug And Alcohol Problems An individual who possesses illegal drugs or alcohol, but is not currently using either one, must be afforded procedural protections, including a reevaluation of the disability to determine if the misconduct was a manifestation of the disability, and appropriate procedures must be followed to institute a significant change in placement, if necessary.

Section Section 504 District Requirements Assign a Section 504 Coordinator (Required if a school district has 15 or more employees) Adopt written grievance procedure Prompt and equitable resolution of complaints Train all staff to implement policy

Section Procedural Requirements For The District Provide parents with notice when a change in placement is considered Provide parents with an opportunity to examine relevant records Provide parents with an impartial hearing to resolve disputes Provide parents with information entitling them to counsel at the hearing Provide parents with information that the hearing must be subject to a review procedure

Section Remedial Procedures Parents may file complaints with the Office of Civil Rights. Parents may request hearings before impartial hearing officers. Parents may file lawsuits in state or federal courts. There is no duty to first file an OCR complaint or request an impartial hearing If the student qualifies under both Section 504 and IDEA, the student must first pursue all available IDEA remedies.

Section Alternative Dispute Resolution 1. Resource Parents ( Parent to Parent Support) 2. Program Specialists (Placement Specialist Support) 3. Facilitated IEPs 4. Solutions Panel 5. Local Mediation The opportunity to resolve disputes at the lowest level and in the most timely manner under neutral, non-adversarial conditions.

Section Alternative Dispute Resolution Contact the SELPA Coordinator of Dispute Resolution at (925) ext. 13

Section For the Administrator or Designee Step by step procedure Step 1: If a concern is voiced regarding a student (both externally and internally) the concern is documented in Section 504 screening and referral form and is given to the designated building team. Step 2: Parent notification of Section 504 team referral and Section 504 parent rights are sent. (file the documentation)

Section Administrator or Designee (cont.) Step 3: The team reviews the student’s records and history, consults with the classroom teacher and other professional as appropriate and determines the student’s current level of participation in academic and non-academic areas of the school program. Step 4: Given available information, the team determines whether a student is or is not disabled under Section 504.

Section Administrator or Designee (cont.) Step 5: Complete the evaluation in all areas of concern and gather pertinent information from all other professionals (e.g., teachers, doctors, psychologists, etc.). Step 6: The team reviews all evaluation results and other information and determines eligibility.

Section Administrator or Designee (cont.) Step 7: If the team determines that the student is not eligible, provide the parent with a copy of the Section 504 parent rights. If the team determines the student eligible: Develop a plan for the student to assure full participation. Specify modifications and/or accommodations or services to be provided to the student Provide the parents with a copy of the plan. Provide the parents with a copy of the Section 504 parent rights.

Section Administrator or Designee (cont.) Step 8: Designate a building staff person to serve as case manager to monitor: Implementation of the plan Student participation and Progress

Section Administrator or Designee (cont.) Step 9: Review annually by the team. Reevaluation is required before a significant change of placement: Expulsion Suspensions that exceed more than 10 school days within a school year Graduation Removal from a fully integrated curriculum to a resource room (vice versa) Home instruction as placement

The Contra Costa SELPA would like to thank you for your interest in this topic and for your attendance at this training.