Kathy's section 504 power point

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AN OVERVIEW OF THE LAW AND
REGULATIONS
Section 504 of the
Rehabilitation Act of 1973
October 23, 2015
Presented by
KATHY PERRICO
MASSILLON
CITY
SCHOOL
DISTRICT

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TOPICS TO BE COVERED
• Overview
• Child Find
• Evaluation
• Is the child disabled?
• Does the child need accommodations?
• The Accommodation Plan
• Notice of Procedural Safeguards
• Discipline
• Nonacademic Services, Extracurricular Activities,
and Physical Education

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OVERVIEW
• Section 504 prohibits an entity that receives federal
funding, such as a public school district board of
education, from discriminating against a person based on
that person’s disability.
• If a student is “disabled” as that term is defined in
Section 504 and, because of the disability, requires
accommodations to have an equal opportunity to
participate in and obtain a benefit from the board’s
programs, the board and parents must complete an
accommodation plan that describes those
accommodations.

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OVERVIEW
• Section 504 itself does not require a school board to
provide a disabled student with a free appropriate public
education (“FAPE”). The U.S. Department of
Education’s (“USDOE”) implementing regulations,
however, require the provision of FAPE.
• Therefore, Section 504 is commonly interpreted to
require a school board to provide “accommodations” to
a disabled student, not just “reasonable
accommodations,” that are necessary to provide the
student with an equal opportunity to participate in and
benefit from the educational program.

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CHILD FINDMASSILLON
CITY
SCHOOL
DISTRICT

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CHILD FIND
• Although Section 504 does not contain any language
regarding “child find,” USDOE Section 504 regulations
require a school board annually to:
1. Attempt to identify and locate every qualified child
with a disability residing in the district who is not
receiving a public education, and
2. Take appropriate steps to notify disabled students
and their parents of the board’s duty to provide
FAPE.

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EVALUATIONMASSILLON
CITY
SCHOOL
DISTRICT

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EVALUATION OF STUDENTS
• Section 504 does not contain any language concerning
the evaluation of students. Nevertheless, USDOE
regulations require a school board to:
“conduct an evaluation…of any person who, because of
handicap, needs or is believed to need special education
or related services before taking any action with respect
to the initial placement of the person in regular or
special education and any subsequent significant change
in placement.”

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• Although its own regulation requires an evaluation only
if the student needs or is believed to need special
education and related services, USDOE believes an
evaluation is required even if the child does not need
special education and no one suspects the child to need
special education.
• The evaluation team should address:
(1) Is the child “disabled” under Section 504?
If so,
(2) Does the child need accommodations?; and
(3) What is the child’s educational placement?

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The evaluation is completed by an evaluation team,
which includes the parents and board personnel who are
knowledgeable about the student, evaluation data, and
options for placement and accommodations.
As discussed below, a child may be disabled under
Section 504 but may not need accommodations.

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EVALUATION
IS THE CHILD
DISABLED?
MASSILLON
CITY
SCHOOL
DISTRICT

IS THE CHILD DISABLED?
“Disability” includes:
(1) Having a physical or mental impairment that
substantially limits one or more major life activities;
(2) Having a record of having a physical or mental
impairment that substantially limits one or more
major life activities; or
(3) Being regarded as having a physical or mental
major life activities.

• Note the difference between Section 504’s definition
of “disability” and IDEA’s definition of “child with a
disability.”
• IDEA defines “child with a disability” to mean a child
who has one or more specified disabilities and, by
reason thereof, needs special education and related
services.
• In contrast, Section 504 separates the determination
of “disability” from the determination of need for
accommodations.

• “Substantially limits” is not defined in Section 504 or
USDOE’s implementing regulations.
• The U.S. Supreme Court, in several cases involving the
Americans with Disabilities Act (“ADA”), defined
“substantially limits” in the definition of “disability”
to mean “prevents or severely restricts.”

• In 2008, Congress contemplated amending the ADA
to define “substantially limits” to mean “materially
restricts,” which is a lower standard than “prevents or
severely restricts.”
• The ADA Amendment Act, however, did not include a
definition of “substantially limits.”
• Congress, however, included several uncodified
“Findings and Purposes” statements that the Supreme
Court was too restrictive when it defined “substantially
limits” to mean “prevents or severely restricts.”

• Thus, “substantially limits” should be read to mean
“materially restricts,” not “prevents or severely
restricts.”
• With the threshold for “disabled” so lowered, the focus
of the evaluation should be on whether the student
needs accommodations to have an equal opportunity to
participate in and receive benefit from the educational
program.

• Section 504 does not define “major life activities,” but
USDOE’s Section 504 regulations define the phrase to
include:
“Functions such as caring for one’s self, performing
manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working.”
• This is a non-exhaustive list.

• Note that “major life activities,” and the concept of
“disability,” is not limited to the major life activity of
“learning.” A student may have no difficulty learning,
but may nevertheless be disabled under Section 504
and may need accommodations.

• When Congress amended the ADA effective in 2009,
it expanded the definition of “major life activities” to
include (new parts of the definition are in bold-type):
“Caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting,
bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and
working.”

• The ADA also defines “major life activities” to include:
“the operation of a major bodily function” including
without limitation “functions of the immune system,
normal cell growth, digestive, bowel, bladder,
neurological, brain, respiratory, circulatory, endocrine,
and reproductive functions.”

• Even though the USDOE has not updated the
definition of “major life activities” in its Section 504
regulations, the ADA’s expanded definition of “major
life activities” should be used when evaluating whether
a student is “disabled” under Section 504.

Episodic impairments or impairments in remission
• Pursuant to the 2009 amendments to the ADA, which
should be applied to Section 504, an impairment that
is episodic or in remission is still a disability if it
substantially limits a major life activity when active.
• In other words, a child may be “disabled” even though
the disabling impairment is episodic or in remission.

• Use the rule from the ADA that the determination of
whether an impairment substantially limits a major
activity (i.e., that the person is disabled) must be made
without considering the ameliorative effects of
mitigating measures such as medication, medical
supplies, equipment or appliances, prosthetics, hearing
aids and cochlear implants, mobility devices, or
assistive technology.
• It is permissible to consider the ameliorative effects of
eyeglasses and contact lenses.

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EVALUATION
DOES THE CHILD NEED
ACCOMMODATIONS?
MASSILLON
CITY
SCHOOL
DISTRICT

DOES THE CHILD NEED ACCOMMODATIONS?
• If the evaluation team determines that the child is
disabled, the team must then decide whether the child
needs accommodations to have an equal opportunity
to participate in and obtain a benefit from the
educational program.
• Whether the child needs accommodations is a separate
determination. It does not automatically follow that a
“disabled” student needs accommodations.

• The team can and should consider the ameliorative
effects of all mitigating measures (i.e., medication,
medical supplies, equipment or appliances, etc.) when
determining whether accommodations are necessary.
• In other words, a child who is disabled may not need
accommodations (may not need an accommodation
plan) if mitigating measures provide the child with an
equal opportunity to participate in and benefit from
the educational program.

• When the student’s disabling condition is episodic,
whether the team completes an accommodation plan
depends on how often the disability is “active” and the
likelihood that it will be active during the school year.
• If the team decides not to implement an
accommodation plan immediately because the
disabling condition is not “active,” the team should
consider preparing a contingent accommodation plan
that can be implemented promptly if and when the
disabling condition becomes “active.”

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THE
ACCOMMODATION
PLAN
MASSILLON
CITY
SCHOOL
DISTRICT

THE ACCOMMODATION PLAN
• If the team determines that the student needs
accommodations, those accommodations should be
described in an accommodation plan.
• Some examples of accommodations are:
(1) Extended time to complete assignments and tests;
(2) Provision of class notes;
(3) Modification of the board’s tardy and absence
policy;
(4) Special transportation;
(5) Reduction of work to “essential concepts.”

• The accommodation plan should define key terms (i.e.,
“class notes,” “essential concepts”).
• The plan should quantify when possible (i.e., how
much extra time for tests and assignments; when will
the student be provided with class notes?).
• The plan should specify who is responsible for each
accommodation, including the student’s responsibilities
(e.g., “Student shall present his agenda planner to
teacher at the end of each class. Teacher shall check
the planner to ensure that it correctly notes assignment
due dates and the dates of quizzes and tests.”).

• The accommodation plan should describe the
student’s placement.
• USDOE regulations state that a disabled student:
(1) Must be educated with regular education students
to the maximum extent appropriate given the disabled
student’s needs; and
(2) Should be placed in the regular education
classroom unless the education of the student, with
supplementary aids and services, cannot be achieved
satisfactorily.

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NOTICE OF
PROCEDURAL
SAFEGUARDS
MASSILLON
CITY
SCHOOL
DISTRICT

NOTICE OF PROCEDURAL
SAFEGUARDS
• Although Section 504 does not contain language about
procedural safeguards, USDOE regulations require a
board to establish a system of procedural safeguards
regarding the identification, evaluation, and placement
of students who, because of disability, need or are
believed to need special education or related services.
• Just like for evaluation, USDOE believes its regulation
applies even to disabled students who do not need, and
are not believed to need, special education or related
services.

• According to USDOE regulations, procedural
safeguards include:
(1) “Notice,”
(2) The opportunity for parents to examine relevant
records;
(3) An impartial hearing with participation by legal
counsel; and
(4) “A review procedure.”
SAFEGUARDS

• Best practice is to use prior written notice for decisions
regarding evaluation and identification, and for
disagreements about placement and accommodations.
SAFEGUARDS

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DISCIPLINE OF
DISABLED STUDENTS
UNDER SECTION 504
MASSILLON
CITY
SCHOOL
DISTRICT

• Both Section 504 and the USDOE’s implementing
regulations are silent about disciplining students who
are “disabled” under Section 504. As such, neither the
law nor the regulations mention the concept of a
manifestation determination review (“MDR”).
DISCIPLINE

• The USDOE Office for Civil Rights (“OCR”), however,
interprets the requirement in its regulations that a school
board complete an “evaluation” before making a
“significant change of placement” to mean that the board
must complete an MDR before it implements a “significant
change of placement” for disciplinary reasons.
• In other words, OCR interprets the term “evaluation” in
the Section 504 regulations to include an MDR.
DISCIPLINE

• OCR interprets “significant change of placement” in
its Section 504 evaluation regulation to mean the same
thing as “change of placement” in IDEA: a
“significant change of placement” is a change of
placement of more than 10 consecutive days (i.e., an
expulsion) or a change of placement of more than 10
non-consecutive days where the series of short-term
removals is a “pattern of removal.”
DISCIPLINE

• In other words, when disciplining a student who is
“disabled” under Section 504, apply IDEA
requirements pertaining to:
(1) Pattern of removal; and
(2) Manifestation determination review.
DISCIPLINE

DISCIPLINE
PATTERN OF REMOVAL
• Complete an MDR if the most recent discipline is part
of a pattern of removal (and is, therefore, a change of
placement).
• The building administrator, not the team, decides
whether there is a “pattern of removal.”

DISCIPLINE
PATTERN OF REMOVAL
Factors to consider when deciding whether a series of
removals is a “pattern of removal”:
1. The total number of days the student has been
removed;
2. Whether the student’s behavior is “substantially
similar” in some or all of the incidents;
3. The length of each removal;
4. The proximity in time of each removal.

DISCIPLINE
PATTERN OF REMOVAL
The administrator’s determination whether a series of
removals is a “pattern of removal” is subject to due
process review (at least under IDEA), so you should
inform the parent of the determination using a PR-01
with notice of procedural safeguards.

DISCIPLINE
MANIFESTATION DETERMINATION REVIEW
• An MDR must be completed if the disciplinary removal
is a “change in placement” (IDEA) or a “significant
change of placement” (Section 504).
• The MDR is completed by the MDR team, which is a
school administrator, the parent, and relevant members
of the IEP team.
• The entire IEP team need not be involved in the MDR.

DISCIPLINE
• The MDR team must review “all relevant information in
the child’s file, including the child’s IEP, any teacher
observations, and any relevant information provided by
the parents.”

DISCIPLINE
The MDR team must find that the misconduct was a
manifestation of the child’s disability if it answers “yes”
to any of these questions:
1. Was the misconduct “caused by” the child’s
disability?
2. Did the misconduct have a “direct and substantial
relationship” to the child’s disability?
3. Was the misconduct a “direct result” of the
school’s failure to implement the IEP?

Under Section 504, the trigger for completing the
“evaluation,” i.e., the MDR, before making a significant
change of placement for disciplinary reasons is that the
student is disabled, not that the student has an
accommodation plan.
In other words, if the 504 team decided that a student was
disabled but did not need accommodations, an MDR must
still be completed before making a significant change of
placement for disciplinary reasons.
DISCIPLINE

• If the student’s misconduct was a manifestation of the
child’s disability, the expulsion cannot occur. To do so
would be deemed disability discrimination.
• Under IDEA, the IEP team must complete a
Functional Behavioral Assessment and implement a
Behavior Intervention Plan to address the misconduct.
• Unlike IDEA, there is no provision in Section 504 or
its regulations for a 45 school-day interim alternative
educational setting for weapons or drug offenses, or
for causing serious bodily injury.
DISCIPLINE

• Another difference between Section 504 and IDEA is
when the MDR must be completed.
• Under IDEA, the MDR must be completed within 10
school days of the decision to change placement, i.e.,
within 10 schools of the decision to expel the child.
• Under Section 504 regulations, as interpreted by OCR,
the MDR must be completed before the significant
change of placement, i.e., before the expulsion hearing.
DISCIPLINE

OCR believes that its Section 504 regulations control over
IDEA (and USDOE’s regulations that implement IDEA) on
the issue of when the MDR for a student with an IEP must
occur.
OCR believes that the MDR for a special education student
must be completed before the expulsion hearing, even though
Congress (in IDEA) and the USDOE (in its regulations
implementing IDEA) provide that the MDR must occur
within 10 school days of the decision to change the child’s
placement.
DISCIPLINE

DISCIPLINE
INTERIM ALTERNATIVE EDUCATIONAL SETTING
Under IDEA, but not Section 504, the superintendent
can, in certain limited circumstances, order a disabled
child into an interim alternative educational setting
(“IAES”) for up to 45 school days even if the misconduct
was a manifestation of the child’s disability.

DISCIPLINE
Under IDEA, the superintendent may order an IAES if
the child:
1. Carried or possessed a “weapon” at school, on
school premises, or at a school function;
2. Knowingly possessed, used, sold, or solicited the
sale of a controlled substance (not alcohol) at
school, on school premises, or at a school function;
or
3. Inflicted “serious bodily injury” on another person
at school, on school premises, or at a school
function.

DISCIPLINE
“Weapon” in this context means a “dangerous weapon,”
which means a “weapon, device, instrument, material, or
substance, animate or inanimate, that is used for, or is
readily capable of, causing death or serious bodily injury,
except that it does not include a pocket knife with a blade
of less than 2 ½ inches in length.”

DISCIPLINE
“Serious bodily injury” means a bodily injury that
involves:
1. A substantial risk of death;
2. Extreme physical pain;
3. Protracted and obvious disfigurement; or
4. Protracted loss or impairment of the function of a
bodily member, organ, or mental facility.

DISCIPLINE
The superintendent may order a 45 school day IAES, but
the IEP team must meet to determine what and where
that setting is, and how services will be delivered.

If the student’s misconduct was not a manifestation of
the student’s disability, the expulsion can be imposed.
Under IDEA, educational services must be provided
starting on day 11 of the disciplinary removal.
DISCIPLINE

DISCIPLINE
(IDEA ONLY)
Whether during an expulsion or a 45 school day IAES,
the services provided must allow the child to make
progress on his or her IEP goals and objectives and in the
general curriculum.
Thus, under IDEA an “expulsion” is better thought of as
a change in placement without parental consent.

DISCIPLINE
In contrast to IDEA, there is no provision in Section 504
or its regulations that educational services must be
provided during an expulsion, i.e., starting on day 11 of a
disciplinary removal. A Section 504 student who is
expelled need not receive any educational services (unless
non-disabled students receive services during expulsions).

DISCIPLINE
(IDEA ONLY)
Under IDEA, but not Section 504, there are certain
circumstances where a child who has not been identified
as a child with a disability is, nevertheless, entitled to the
discipline “protections” of IDEA.
Under IDEA, a child not yet identified as a child with a
disability is entitled to discipline “protections” if the
school district “had knowledge…that the child was a child
with a disability” before the child’s misconduct occurred.

DISCIPLINE
(IDEA ONLY)
A school district is deemed to have “had knowledge” if, before
the misconduct, the child’s:
1. Parent expressed concerns in writing to supervisory or
administrative personnel, or a teacher of the child, that
the child is in need of special education or related
services; or
2. Parent requested a multi-factored evaluation; or
3. Teacher or district personnel have expressed specific
concerns about the child’s pattern of behavior directly
to the special education director or other supervisory
personnel.

DISCIPLINE
(IDEA ONLY)
The school district will not be deemed to have “had
knowledge” if:
1. The child’s parent:
a. Has not allowed a multi-factored evaluation;
or
b. Has refused special education and related
services; or
2. The child has been evaluated and determined not
to be a child with a disability.

DISCIPLINE
(IDEA ONLY)
Some examples of the “protections” to which a child not
yet identified is entitled:
1. Educational services starting on day 11 of the
removal;
2. Completion of an MDR (if the child is ultimately
identified);
3. Due process hearing (arguably limited to child
find).

DISCIPLINE
(IDEA ONLY)
If the parent requests an MFE or special education after
the misconduct, the child can be disciplined like a regular
education student, but the district must complete an MFE
in an expedited manner (unless the district gives prior
written notice that it refuses to complete an MFE).
The child remains expelled while the expedited MFE is
completed. No educational services need be provided.

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NONACADEMIC
SERVICES,
EXTRACURRICULAR
ACTIVITIES, AND
PHYSICAL EDUCATION
MASSILLON
CITY
SCHOOL
DISTRICT

• USDOE regulations define “nonacademic and
extracurricular services and activities” to include
“counseling services, physical recreational athletics,
transportation, health services, recreational activities,
special interest groups or clubs sponsored by the
[school district], referrals to agencies which provide
assistance to handicapped persons, and employment of
students, including both employment by the [board]
and assistance in making available outside
employment.”

• USDOE regulations state that “in providing or
arranging for the provision of nonacademic and
extracurricular services and activities, including meals,
recess periods, and [other services such as athletics and
special interest groups and clubs], a [board] shall
ensure that [disabled] persons participate in such
activities and services to the maximum extent
appropriate to the needs of the [disabled] person in
question.”

A board of education must “provide nonacademic and
extracurricular services and activities in such a manner as is
necessary to afford [disabled] students an equal opportunity
for participation in such services and activities.”
“In providing physical education courses and athletics and
similar aid, benefits, or services to any of its students, a
[board] may not discriminate on the basis of [disability]. A
[board] that offers physical education courses or that
operates or sponsors interscholastic, club, or intramural
athletics shall provide to qualified [disabled] students an
equal opportunity for participation.”

OCR’S JANUARY 25, 2013 “DEAR COLLEAGUE LETTER” ON
EXTRACURRICULAR ATHLETICS
HTTP://WWW2.ED.GOV/ABOUT/OFFICES/LIST/OCR/LETTERS/COLLEAGUE-201301-
504.HTML
• A board must make reasonable modifications and
provide those aids and services that are necessary to
ensure an equal opportunity to participate in
extracurricular athletics.

OCR’S JANUARY 25, 2013 “DEAR COLLEAGUE
LETTER” ON EXTRACURRICULAR ATHLETICS
• “Equal opportunity to participate” does not mean:
(1) Making a fundamental alteration to the program or
nature of the activity;
(2) Giving a student with a disability an unfair
advantage;
(3) Reducing or changing a required level of skill or
ability for participation; or
(4) Compromising student safety.

• USDOE regulations state that “a [board] may offer to
[disabled] students physical education and athletic
activities that are separate or different from those
offered to [nondisabled] students only [when
participation with the use of supplementary aids and
services in the regular environment cannot be achieved
satisfactorily] and only if no qualified [disabled] student
is denied the opportunity to compete for teams or to
participate in courses that are not separate or different.”

OCR’S JANUARY 25, 2013 “DEAR COLLEAGUE
LETTER” ON EXTRACURRICULAR ATHLETICS
• A board “should” (i.e., is encouraged but not required
to) create additional, i.e., separate or different,
extracurricular athletic opportunities for disabled
students who cannot participate in existing programs
even with reasonable modifications or aids and
services.
• If a board creates additional extracurricular athletic
opportunities, it must support those opportunities
equally with its existing programs.

• The accommodation plan should distinguish between
accommodations needed to provide the student with
FAPE from accommodations required to provide the
student with an equal opportunity to participate in
nonacademic and extracurricular activities.
• If accommodations are needed for participation in
nonacademic and extracurricular activities, but such
participation is not required to provide the student
with FAPE, the accommodation plan should explicitly
state this.

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QUESTIONS?
MASSILLON
CITY
SCHOOL
DISTRICT

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