1. Differences & Distinctions: 504s v. IEPs Amy Vatner, Esq. SPED*NET Wilton June 4. 2013 1

2.  Legal Background  Section 504 & Public Schools Overview  Referral, Evaluation, & Eligibility Determination  504 Plan & Placement  Procedural Safeguards  IDEA vs. 504 2 Training Agenda

3. Legal Background 3

4. What is Section 504? 4  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

5. “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” 5 What Section 504 Says

6.  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 Act 6 Related Laws: IDEA* and Section 504

7.  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 7 Related Laws: Section 504 & Americans with Disabilities Act Amendments Act (ADAAA) of 2008

8. ADA Amendments Act of 2008 (ADAAA) 8  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

9. 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 9 Person with a Disability: ADAAA/504 Definition

10.  Any physiological condition that affects a bodily system, or any mental or psychological disorder 10 504/ADAAA Disability Definition Part 1: Impairment

11.  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 remission 11 504/ADAAA Disability Definition Part 2: Substantial Limitation

12. 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 12

13. Additional Major Life Activities (Bodily Functions) 13  Brain  Circulatory  Endocrine  Reproductive  Neurological  Immune system  Normal cell growth  Digestive  Bowel  Bladder  Respiratory

14. Section 504 and Public Schools 14

15.  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 15 IDEA vs 504: Big Picture reminders

16.  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 16 Section 504 and Public Schools

17. Overview: The 504 Process 17  Referral  Evaluation  Eligibility Determination  Development of 504 Plan  Review  Reevaluation

18.  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 18 Referral for evaluation

19.  Does the student have a disability under Section 504?  If so, what are the student’s individual education needs? 19 Purpose of Evaluation

20.  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 20 Section 504 Evaluation Requirements

21.  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 21 Medical Diagnosis and 504

22.  Student has a diagnosis from an outside clinician. Is student entitled to a 504 plan on this basis alone? Question: Outside diagnosis 22

23.  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 23

24. People who:  are knowledgeable about the student,  can interpret data, and  know the placement options 24 504 Team Might include: Principal Social Worker Counselor Psychologist Nurse Other School Staff Parent (not required as under IDEA!)

25. The team must consider all factors affecting a student’s ability to receive FAPE:  Evaluation data (aptitude and achievement tests)  Teacher recommendations  Physical condition  Child’s social & cultural background  Adaptive behavior  Other sources of information (parents, doctors, etc.) 25 Determining 504 Eligibility

26.  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!!) 26 Placement

27.  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 27 What’s in the 504 Plan

28. Examples include:  Removal of physical barriers  Extended time for testing  Adjustment of class schedule  Rest periods  Use of aids (calculators, recorders, notetakers, modified textbooks, etc.)  Individualized homework assignments 28 Accommodation & Modifications

29.  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 29 Sit down with student and have a meaningful conversation

30.  Physical therapy  Counseling, psychological, or social work services  Assistive technology  Speech & language services  Occupational therapy  Medical Services  Staff training 30 Related Services: DON’T let them tell you services aren’t part of 504!!

31. 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 31 Reevaluation

32. Procedural Safeguards 32

33.  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 33 Procedural Safeguards

34.  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!) 34 4 Dispute Resolution Options

35. 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) 35 504 Coordinator and Grievance Procedures

36. Districts may not retaliate against individuals for:  asserting rights under 504  opposing disability discrimination  participating in a complaint process or hearing 36 No Retaliation

37. IDEA vs. 504 37

38. IDEA/504 Diagram 38 All Students Students with disabilities 504- eligible students IDEA- eligible students

39. Section 504IDEA Funding?NoFederal & State Eligibility Determination General disability definition Disability categories & need for special education and related services EvaluationsInitial & “periodic”Initial & triannual FAPENeeds met as adequately as those without disabilities Individualized educational program from which child receives educational benefit Plan504 PlanIEP in writing 39 Side-by-Side Comparison

40. After High School 40

41. Who must comply?  Section 504: recipients of Federal funds  ADA:  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) 41 General Overview: Section 504 and ADAAA

42.  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 42 There are No IEPs after High School, but waiving a 504 isn’t magic either

43.  Services are not received by entitlement  Students must request and demonstrate eligibility – there are no child find obligations anymore 43 Self-Advocacy is Critical

44.  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 44 Postsecondary Institutions & 504

45.  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 45 College Eligibility Determination

46. 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 46 Disability Documentation Student Responsibility: Assessment to identify disability and functional limitations and need for academic adjustment or auxiliary aids or services

47. High SchoolCollege Eligibility Determination Evaluation conducted or paid by school district Documentation supplied by student Legal Responsibility Provide FAPEEnsure non- discrimination Procedural Safeguards Due process or OCR complaint Internal grievance or OCR complaint 47 Side-by-Side Comparison

48.  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 48 Tips for a Smooth Transition

49.  ADA Amendments Act of 2009 ADA Amendments Act of 2009  Section 504, Title II, and Students with Disabilities in Public Schools (OCR) Section 504, Title II, and Students with Disabilities in Public Schools  The 411 on Disability Disclosure Workbook (National Collaborative on Workforce and Disability) The 411 on Disability Disclosure Workbook  Section 504 of the Rehabilitation Act of 1973 Regulations Section 504 of the Rehabilitation Act of 1973 Regulations  Transition of Students with Disabilities to Postsecondary Education: A Guide for High School Educators (OCR) Transition of Students with Disabilities to Postsecondary Education: A Guide for High School Educators  Free Appropriate Public Education for Students with Disabilities: Requirements under Section 504 of the Rehabilitation Act of 1973 (OCR) Free Appropriate Public Education for Students with Disabilities: Requirements under Section 504 of the Rehabilitation Act of 1973  OCR Complaint Processing Procedures OCR Complaint Processing Procedures  Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (OCR) Frequently Asked Questions About Section 504 and the Education of Children with Disabilities  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) Commonly Asked Questions About Child Care Centers and the Americans with Disabilities Act  Americans with Disabilities Act Questions and Answers (EEOC) Americans with Disabilities Act Questions and Answers 49 References

50. 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 50 Office for Civil Rights

51. Amy Vatner, Esq. Alyce Alfano, Esq. Alfano Education Law Group www. alfanoedlaw.com (860) 313-5005 51 Contact Information