Presented by:Conde J. Kunzman

SELPA DirectorShasta County

ckunzman@shastacoe.orgJuly 2009

What Is Section 504?Section 504 is a federal civil

rights statue that prohibits

discrimination/harassment on the basis of a disability

What Does Section 504 Actually Say?

“No otherwise qualified handicapped individual… shall, solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…”

29 U.S.C. Subsection 794 (1973)

Section 504 EnforcementSection 504 is

enforced by the U. S. Department of Office for Civil Rights

Violation of Section 504 may also result in civil liability

IDEA Section 504 ADA

Type of legislation:

Funding act Civil rights act SAME as § 504

Original Passage:

1975 1973 1990

Coverage Students 3 years to age 22

Students K – post secondary » employees » facilities

SAME as§ 504

FAPE: Special education+ related services

Special or regular education and related services

Student is compared to the average

SAME as§ 504

AdministeringAgency:

OSEP + SEAs OCR (+EEOC) SAME as§ 504

EligibilityDefinition

2 essential elements 1) 13 categories 2) need for spec ed.

3 essential elements: 1) impairment 2) major life activity 3) substantial

SAME as§ 504

3 Phases of Section 504Stage 1: Awareness

Stage 2: Constriction

Stage 3: Expansion

Stage 1: Awareness

Stage 2: Constriction

Stage 3: Expansion

1970’s disability movement

Court cases:Sutton 1999Toyota 2002

January 1, 2009 - ADAAA

1970’s disability movement

Court cases:Sutton 1999Toyota 2002

January 1, 2009 - ADAAA

PHASE 1Awareness

1973

1977 the regulations needed to enforce Section 504 were signed Accessible buildings Curb cuts

Very little impact on schools

SECTION 504PHASE 2: CONSTRICTION

Sutton v. United Airlines (1999)Mitigating factors considered

when evaluating if a person has a “substantial limitation”

Toyota v. Williams ( 2002)Severely restricted an

individual from engaging activities of central importance & impairment was permanent or long term

IDEA

SECTION 504 STAGE 3: EXPANSIONADA Amendments Act

Effective 1/1/09In rejecting a series of

U.S. Supreme Court decisions, the new law is intended to reinstate the broad scope of protection for individuals with disabilities.

SECTION 504 STAGE 3: EXPANSION

Section 504, unlike the IDEA, “requires a comparison between the treatment of disabled and nondisabled children, rather than simply requiring a certain level of services for each disabled child.”

Mark H. v. Lemahieu (9th Cir. 2008) 513 F.3d 922)

SECTION 504 STAGE 3: EXPANSIONBroadens the definition and coverage

of “disability” under ADA and the Rehabilitation Act.

Ensures that individuals who compensate for their disabilities are protected from discrimination.

Clarifies that “substantially limits” does not mean “significantly restricts.”

EXPANSION - ADA Amendments Act Impairment that limits one major life

need not limit other major life activities in order to be considered a disability.

Impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.

Section 504/ADA Amendments Act Requires disability determinations to be

made without considering mitigating measurese.g., medication, medical supplies,

appliances, low-vision devices, prosthetics, hearing aids and mobility devices.

Excludes ordinary eye glasses and contact lenses

Concentrating

ThinkingLearningReading

ADA Amendments Act Main focus of the ADAAA

EmployeesIraq veterans

Changes may or may not impact K-12 practicesForm D

FORM D The team must focus on the major life activity

as a whole (e.g. learning), not on a particular class (e.g. math) or sub-area (e.g., socialization; study skills)

Substantial limitation means:A. unable to perform a life activity that the

average student of approximately the same age can perform

ORB. significantly restricted as to the condition,

manner or duration under which a particular life activity is performed as compared to the average student of approximately the same age. The impairment must be substantial and somewhat unique, rather than commonplace, when compared to the average student of approximately the same age.

Site ImplicationsIncreased role for school nurse

Make an educated estimate of the mitigation of medication Ask parents to bring in medical information and consider the

contents of the evaluation. The team should modify its position on eligibility if appropriate.

Do a thorough and complete evaluation of students in all areas of suspected disability Forest Grove School District v. T.A.

RtI implications Tier 2 or 3 interventions Special education referral

IDEA regulations regarding consent revocationPerform Child Find obligation

Key PointsCommon regular education interventions such as RtI

may eliminate existence of a “substantial limitation”

Standard is to compare student to an “average student”. This means you compare student against chronological peers in the entire state or country. Different standard of FAPE than I.D.E.A.

Do not consider mitigating factors when determining whether an impairment is substantially limiting

Physician or psychologist opinion as to student’s eligibility status is only one source of information the team should consider. Remember, the team is making an educational decision, not a medical decision.

Students eligible under I.D.E.A. are not entitled to a separate Section 504 plan.

Temporary DisabilitiesDetermination must

be made on a case-by-case basis, taking into consideration the severity and the duration of the impairment, typically 6 months

Procedural RequirementsNotice to parent of evaluation, meeting, and

notice of results/actions. Form AForm DForm F

Appropriate Team Membership, parent and persons knowledgeable about the child, meaning of evaluations and placement options.Form C

Parent rights must be providedForm B

Parent Permission must be received prior to evaluationForm A

Ensure appropriate time limits are setSame as I.D.E.A

School representative and parents should organize and review all data prior to Section 504 meetingForm C

Developing a Section 504 PlanIdentify student’s disability, major life activity

impacted, and educational impact of disability.Design a program to suit student needs

FAPE = special ed. and/or regular education + related services

Be sure accommodations are succinct and realistic

Review each Section 504 Plan at least on an annual basis or upon any significant change in placement.

Local Grievance ProcedureIdentification, evaluation, or placement decisions

may be appealed by a written request.Form J

Mediation may be used to resolve areas of disputeForm B

List your district’s 504 Coordinator Place district’s 504 Coordinator on your website Contact the SELPA office if needed

After mediation or impartial hearing, a written decision must be provided to person making appeal

Child Find RequirementThe District has an

affirmative duty to conduct a “child find” at least annually.

District must “identify and locate” every qualified disabled child residing in its jurisdiction including pre-schoolers, homeless, and those attending private school.

Child Find (con’t)Teachers and

administrators must receive training on the identification of students suspected of having a disability.

School Wide ComplianceAnnually identify and locate all Section 504

qualified students (Child Find)Pamphlet available on SELPA websiteCounty wide tracking mechanism

Annually notify persons who are disabled and their parents of the District’s responsibilities under Section 504.

Provide parents with procedural safeguards.

Useful ReferencesP.A. Zirkel,

Section 504, the ADA and the Schools Two-volume reference updated ANNUALLY and

available from www.lrp.com

P.A. Zirkel,§504 / ADA Eligibility Determinations

West’s Education Law Reporter (in press)

References (con’t)Section 504 and ADA: Providing Student

Access – A Resource Guide for Educators, 3d edition

A guide providing forms and policy templates (including a CD) for use by school districts and available from www.casecec.org

Useful References (cont.)

npl.ly.gov.tw/pdf/6538.pdf

One of the several sources for the specific statutory language, which on legal databases will be available under these official, alternative citations: 122 Stat. 3554 and U.S.C.§ 12101 et seq. (2008)

Thank You.