Rhode Island Educators Leadership Series

Thomas P. DiPaola Ph.D. Associate Professor

Doctoral Program in Education LeadershipJohnson and Wales University

tdipaola@jwu.edu401 598 2026

Who is that Masked Man?

Life Changing ExperienceLife Friendly Schedule

Johnson & Wales UniversitySchool of Education

M.A.T., M.Ed., Ed.D., Professional DevelopmentWine & Cheese Open House

School of Education Info Sessions 4-6 pmTuesday, February 23, 2010 -- Johnson & Wales Inn

SeekonkThursday, February 25, 2010 -- Radisson Airport Hotel

WarwickR.S.V.P. Jaime DiPaola 401-598-1993, Jaime.DiPaola@jwu.edu

The Alan Shawn Feinstein Graduate School at JWU

• 4:30 Welcome and introduction• 4:45 You make the call• 5:00 How did we get here from there?

Overview of the Rehab Act Section 504,

ADA and the IDEA• 5:45 Dinner• 6:15 You make the call• 6:30 Being proactive: taking measures to

prevent discriminatory practices • 7:30 Adjourn

Monday February 8, 2010

• Smith V. Robinson

• Savana Redding

• Overview of Section 504

History of Disability Law

• 1973 Section 504 of the Vocational Rehabilitation Act reauthorized 2002

• 1975 Education of the Handicapped Children’s Act (EAHCA) (P.L.94-142) (now the IDEIA)

• 1990 P.L. 94-142 reauthorized and becomes IDEA

• 1990 Americans with Disabilities Act (ADA) reauthorized 2008

• 2004 IDEA reauthorized and becomes IDEIA

Section 504 of the Rehabilitation Act

C.F.R. Part 104

and the IDEIAOffice of Special Education Programs (OSEP) - Home Page

basic legal overview/comparison

Rehabilitation Act-Section 504 Requires:

“No otherwise qualified individual

with disabilities in the United States shall, solely by reasons of her or his disability, be excluded from the participation in, be denied the benefits or, or be subjected to discrimination under any program or activity receiving Federal financial assistance...”

(29 USC Sec. 794)

Otherwise Qualified Individual:

• has a physical or mental impairment

• which substantially limits one or more

major life activities,

• has a record of such impairment, or

• is regarded as having such an

impairment.

Purpose of Section 504 of the Rehab Act

• "level the playing field"

• eliminate impediments to full participation by persons with disabilities of all ages

• prevent intentional or unintentional discrimination against:

persons with disabilities,

persons who are believed to have disabilities, or

family members of persons with disabilities.

Purpose of IDEIA

• ensure a free and appropriate education (FAPE) (IEP)

• for children with disabilities ages (Birth)3-21 who fall within one of the 13 specific disability categories as defined by the law

• disability adversely affects the child's educational performance and/ or ability to benefit from general education (not limited to academic performance)

504• Requires schools to eliminate barriers that

would prevent the student from participating fully in the programs and services offered in the general curriculum.

IDEIA• Provides individual supplemental educational services and supports in addition to what is provided to students in the general curriculum to ensure that the child has access to and benefits from the general curriculum.

Doe v.Withers 1993

• Pierce Law on Doe v Withers

• St. Petersburg College PD for Faculty

• How did we get to where we are

exclusion

integration

accountability for results• How do we make this work well

being proactive

policies and procedures

initial and ongoing PD• Where do we go from here

universal design

removal from general education as a last resort

completion of the cultural shift

Essential components & requirements of IDEIA & Section 504

– Child find: preschool, in school, nonpublic school– Evaluation: LD and RTI– Eligibility– FAPE– LRE: Access to the Curriculum and HQT– IEP– 504 plan– Implementation– Violations– Procedural Safeguards

• Notice• Records• Due process

– Review– Outcomes: Perf Results – Exiting services/protection

The 504 Process

• Child Find

• Referral

• Evaluation

• Placement

• Reasonable Accommodations

Don’t forget employees, family members and members of the community

In Bounds

• You may ask questions to determine whether an employee can perform specific job functions. The questions should focus on the employee's ability to perform the job, not on the disability condition.

• You may ask an employee to describe or demonstrate how he/she would perform specific job functions with or without an accommodation.

• When there is reason to believe that an employee will not be able to perform a job function because of a known disability, you may ask that person to describe or demonstrate how he/she would perform a job-related function. An employee's disability would be a "known disability" either because it is obvious (for example, the employee uses a wheelchair), or because the employee has voluntarily disclosed that s/he has a hidden disability (requested an accommodation plan).

• You may ask about an employee’s non-medical qualifications and skills, such as his/her education, work history, and required certifications and licenses.

• You may ask if the employee can meet attendance requirements.  

Out of Bounds

• Have you ever been treated for mental health problems?

• Are you disabled?• Do you have a disability that would interfere with

your ability to perform the job?• How many days were you sick last year?• Do you have high blood pressure?• How much alcohol do you drink each week? Have

you ever been treated for alcoholism?(Alcoholism, past or present, and past drug addiction can be a protected disability, unlike current use of unlawful drugs, which is not protected.)

Out of Bounds

• Asking an obviously disabled employee questions about how the disability happened, what the prognosis is, or how the condition and impairment affects the employee's daily life activities.

• Can you stand? Can you walk? (These questions are probably too broad to be directed to ability to perform a job function, and instead are regarded as inquiries into the existence of a disability.)

• What medications are you currently taking?

Reauthorization of Americans with Disabilities Act (ADA) w/ impact on

Section 504 for schools

• Substantially Expanded Effective January 1, 2009

• Expands Class of Individuals Covered by the ADA

expressly requires that courts construe disability "in favor of broad coverage . . . to the maximum extent permitted" by the ADA. The implied directive is that courts are to err in favor of coverage.

ADA

• Key Elements of ADA

• Health Lawyers on the ADA

• Great Lakes ADA

Reauthorization of Americans with Disabilities Act (ADA) w/ impact on

Section 504 for schools• a broader interpretation of the term "major life activities" by

adding specific examples and expanding the phrase to include "operation of a major bodily function."

• New and non-exhaustive list of major life activities includes "caring for oneself, performing manual tasks, seeing, hearing, eating, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.”

• According to the ADAAA, major bodily functions now include “functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.”

• Intent is to ensure that certain medical conditions—such as high blood pressure, diabetes, epilepsy and asthma—are considered conditions that affect major life activities.

Reauthorization of Americans with Disabilities Act (ADA) w/ impact on

Section 504 for schools• "Substantially Limited" Standard to Be Softened

The ADAAA does not, however, describe what the correct definition or test should be. Instead, it instructs the EEOC to modify its regulations

• Mitigating Measures No Longer to Be Considered

U.S. Supreme Court held that mitigating factors, such as medications and prosthetics, could be considered in determining whether an individual is disabled under the ADA. Rejecting this standard, the ADAAA explicitly states that corrective measures should not be taken into account in determining whether a person's impairment substantially limits a major life activity, even if such measures allow the individual to successfully manage his or her impairment. Therefore, an employer will still need to accommodate an individual who is fully able to perform his or her job duties while taking medication or using prescribed medical devices. The only exception is that usage of "ordinary eyeglasses and contact lenses" can be considered in determining whether a person has a visual disability.

Reauthorization of Americans with Disabilities Act (ADA) w/ impact on

Section 504 for schools• Expansion of Coverage for Persons "Regarded

as" Disabled

ADA protects employees from being discriminated against for being "regarded as" disabled. A U.S. Supreme Court decision held that for an employee to prove discrimination based on a perceived disability, he or she had to show that the impairment in question actually limited or was perceived to limit a major life activity.

The ADAAA overturns that decision by requiring that the employee need only show that the employer perceived the employee as impaired, whether or not the impairment actually limits or is perceived to limit a major life activity.

Addressing the gap between legal requirements and staff and/or

customer expectations– How to avoid needless conflict

Prevention:

Training and Technical Assistance

– Addressing conflict

Intervention:

Stop, Look, Listen

– Developing and maintaining relationships between the school district & parent(s)

Common Mistakes of Educators and School Districts

• Failing or refusing to communicate andactively coordinate with outside expertsworking with a child

• Assuming a patronizing and/or antagonisticand/or insulting attitude toward parents

• Failing to observe procedural timelinesand notice requirements

• Failing to modify an IEP or a 504 Plan that isnot working

• Failing to implement an IEP or a 504 Plan, and worse

• trying to cover up that failure

Resources

• Disability Discrimination 504 ADA IDEIA

• 504 FAQs Protecting Students with Disabilities

• Disability Resources USDOE

• US Access Board

• New England ADA Center

• 504 and ADA Wrightslaw

Q&A

• Be Proactive: Don't Wait for the Ball to Come to You

You Can't be Perfect One Day Someone is Better