Section 504: Implementing Recent Changes through Compliant Procedures

Pueblo City SchoolsJanuary 31, 2012

 Kathleen Sullivan

Associate Executive DirectorColorado Association of School Boards

Section 504 “No otherwise qualified individual with a disability 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.”

What does eligibility for 504 protection mean?

• Team

• Plan for FAPE

• Procedural safeguards

Interaction with RtI

Evaluation

• Districts must evaluate a student who, “because of disability, needs or is believed to need special education or related services.” 34 C.F.R. § 104.35.

Evaluations

• Consent—implied requirement

• Frequency—“periodic” and prior to a “change of placement”

• No IEE right

Eligibility Standard

No change in the text of the definition of

"disability”:

1. A physical or mental impairment 2. that substantially limits 3. one or more major life activities.

2008 Amendments

• Include impairments that are episodic or in remission

• Prohibit consideration of mitigating measures

• Expand the list of major life activities

Physical or Mental Impairments

• Diseases: AIDS, tuberculosis, hepatitis B

•Conditions: asthma, diabetes, heart disease, eating disorders, hearing impairment

• Physical impairments: paraplegia, missing paired organs

Alcohol and Drug Use

• Drug addiction, if not a current user

• Once the student is participating in, or has completed, a supervised drug or alcohol rehabilitation program and is no longer using illegal substances can claim eligibility under Section 504

• Regardless of eligibility, can be disciplined including removal from school

Physical or Mental Impairment

Expanded to include:

• Temporary, not transitory and minor, actual or expected duration of more than 6 months

• Episodic or in remission if it would qualify when active.

Substantially Limits

504 regulations do not contain a definition.

Interpreted as “significantly restricted as to the condition, manner, duration” under which an individual can perform a particular MLA as compared to the average person in the general population.

Major Life Activity• Amendments’ non-exhaustive list: 

“caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

• Adds major bodily functions: immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.

Mitigating Measures

• OK = Eyeglasses or contact lenses

• No = Others, including medication, prosthetics, hearing aids, mobility devices, assistive technology, auxiliary aids and services, and learned behaviors

 

Mitigating Measures

• Student with ADHD, diabetes, asthma, and a hearing impairment functions well in the classroom with Ritalin, insulin, an inhaler, and hearing aid.

• Would the student be substantially limited in a major life activity without his medications or the use of his hearing aid?

Plan

• FAPE ≠ reasonable accommodations.

• Modifications: “do not affect the essential nature of a program and must be made to eliminate discrimination.”

• Most fully integrate the student into the life of the school and enable access to the benefit of all programs, activities, and services.

Drafting Appropriate Accommodations

• Begin each one with a noun.• Bad: Haley will have preferential seating.• Good:The teacher will assign Haley a seat

close to instructor.

• Be specific.• Bad: Haley will have extended time on tests.• Good:Haley will receive 50% more time to complete tests.

Upon student request, Haley will receive 50% more time to complete tests.

Preparing for a Successful Meeting

• Gather relevant factual information.• Make copies of all information to

share.• Prepare staff for the meeting by

sharing expectations for participation.

Implementing Plans

• Inform teachers of the plan’s content.• Check for understanding.• Collect data.• Convene follow-up meeting(s) to

address staff/parent/student concerns or lack of progress.

Additional Section 504 Protections

• Discipline = manifestation determinations

• Protections extend to all programs and services, including summer school and field trips

• Disability based harassment

Steps to Compliance

• Adopt the new analysis• Keep up to date on federal and

state activity • Refresh training and confer with

colleagues