The 411The 411 on 504on 504

Karen HaaseH di & Sh ltHarding & Shultz

(402) 434-3000khaase@hslegalfirm.com

H & S School Law

@KarenHaase

Emerging Trend :Cases re Staff Members

Ridley Sch. Dist. v. M.R. (E.D. Pa. 2011)

T W v Sch Bd (11th Cir (Fla ) T.W. v. Sch. Bd. (11th Cir. (Fla.) 2010)

Reinhardt v. Albuquerque Pub. Sch. Bd (10th Cir (N M ) 2010)Bd., (10th Cir. (N.M.) 2010)

Primary DifferencesPrimary Differences Definition of disability is unique to Definition of disability is unique to

each statute No funding under 504

504 504 encompasses - Students - Employees - Patrons

Similarities School districts must evaluate and

determine eligibility Both require q

- transportation, - accommodation/

modification- related services

LRE requirement

When is a district required to make a 504 referral?

When district believes that the student has a physical or mental impairmenthas a physical or mental impairment that substantially limits one or more major life activities ANDmajor life activities AND

Student is in need of either regular ed with supplementary services or special ed. and related services

Letter to Mentink, 19 IDELR 1127 (OCR 1993)

When is a district required to make a 504 referral?

When district believes that the student has a physical or mental impairmenthas a physical or mental impairment that substantially limits one or more major life activities ANDmajor life activities AND

Student is in need of either regular ed with supplementary services or special ed. and related services

Letter to Mentink, 19 IDELR 1127 (OCR 1993)

When is a district required to make a 504 referral?

When district believes that the student has a physical or mental impairmenthas a physical or mental impairment that substantially limits one or more major life activities ANDmajor life activities AND

Student is in need of either regular ed with supplementary services or special ed. and related services

Letter to Mentink, 19 IDELR 1127 (OCR 1993)

What constitutes a “substantial limitation?”

504 regs do not define: “The Department does not believe that aDepartment does not believe that a definition of this term is possible at this time.” Appendix A, p. 419.

Phrase is to be defined by local yeducation agency Letter to McKethan, 23 IDELR 504 (OCR 1994).IDELR 504 (OCR 1994).

What constitutes a “substantial limitation?”

Congress: a major life activity is substantially limited when “thesubstantially limited when “the individual's important life activities are restricted as to the conditions, manner or duration under which theymanner or duration under which they can be performed in comparison to

t l ”most people.” [House Report No. 101-485(II) p. 52.].

“Disability” as Defined by Section 504

A person has a disabilityA person has a disability under Section 504 if he or she has a mental orshe has a mental or physical impairment, has a record of sucha record of such impairment, or is regarded as having suchregarded as having such an impairment which substantially limits onesubstantially limits one or more major activities.

Why was Section 504 Changed?

Sutton v. United Air Lines, Inc., 527 U S 471 (1999)U.S. 471 (1999)

The ADA Amendments Act of 2008 increased the number of individuals who qualify for accommodation under both the Americans With Disabilities Act and Section 504 of the Rehabilitation Act of 1973.

What are the Major Changes?

First, the definition of “major life activity” has expandedactivity has expanded

Now include but are not limited to:C i f lf f i l t kCaring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing lifting bending speaking breathingstanding, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and workingcommunicating, and working.

What are the Major Changes?

Second, interpretation of “substantially limits” has been changedlimits has been changed

- Must evaluate impairment that is episodic or in remission in active stateremission in active state

- Must not consider mitigating measures

Examples of Episodic Impairments

Asthma Chron’s Disease Chron s Disease IBS Any other disease that can “come and Any other disease that can come and

go” or has good and bad ddays

Mitigating Measures Don’t Count

A student may be eligible under Section 504 even if the student’sSection 504 even if the student’s disability or condition is controlled or mitigated, whether by medication, technology, etc.medication, technology, etc.This means you may be evaluating

a hypothetical student

Examples of Mitigating Measures

Medication Medical supplies, equipment, appliances

L i i d i (NOT di l Low-vision devices (NOT ordinary eyeglasses or contacts)

Prosthetics Hearing aids/cochlear implants Learned behavioral or adaptive neurological

difi timodifications Reasonable accommodations or other auxiliary

aids or services

What about Temporary Impairments?

A “transitory impairment” is defined as an impairment with an actual or

d d i f i h lexpected duration of six months or less. “Any impairment the duration of

i i iwhich is less than six months would not constitute a disability.” James A. Garfield (OH) Local School Dist 52Garfield (OH) Local School Dist., 52 IDELR 142 (OCR Feb. 19, 2009).

What if the major life activity impaired is not learning?

The child may still need a 504 plan The focus is on the effect on the The focus is on the effect on the

student, not the type of disability “Students may have a disability that “Students may have a disability that

in no way affects their ability to learn, yet they may need extra help of some kind from the system to access learning.”

Letter to McKethan, 23 IDELR 504 (OCR 1994)

Is it possible for a student to be 504 in one district and not

li ibl i th ?eligible in another? Yes Yes Each district is responsible for p

determining for itself what the phrase “substantially limits” meansphrase substantially limits means

Letter to McKethan, 23 IDELR 504 (OCR 1994)

Can we just provideCan we just provide modifications without creating

a 504 plan? No Remember: disability education law

is about PROCESS not RESULTS Example: Temple (TX) ISD, 25 IDELR 232

(OCR 1996)(OCR 1996)

Can a student’s absences trigger a 504 referral and evaluation?

Yes If districts suspects absences are due p

to a disability, the district should refer and evaluaterefer and evaluate

Note that just because a student has a disability does not mean all thea disability does not mean all the absences are disability-related

The Nuts and Bolts of the 504 Process

Referral Consent Consent Eligibility Determination 504 Plan Di i li Discipline Due Process Rightsg

Can a Parent Demand a 504 Plan instead of an IEP?

No When a child qualifies under

IDEA district satisfies theIDEA, district satisfies the provisions of 504 through the IEP

Letter to McKethan, 25 IDELR 295, 296 (OCR 1996)Lyons v. Smith 20 IDELR 164, 167 n. 11 (DCDC 1993)

Special Problems with Some Health Impairments

Diabetes Asthma Peanut and other allergies