SECTION 504 OF THE REHABILITATION ACT

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SECTION 504 OF THE REHABILITATION ACT
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Purpose

• Nondiscrimination statute
• Protects a qualified individual with a disability
  from being discriminated against on the basis of
  the disability in any program that receives
  federal financial assistance
• NOT a funding statute

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Who is Eligible?

• Very broad range of individuals are protected by
  504
• An individual with a disability under 504 means
  any person who
• has a mental or physical impairment that
  substantially limits one or more major life
  activities or
• has a record of such an impairment or
• is regarded as having such an impairment

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Physical or Mental Impairment

• Physical - any physiological disorder or
  condition, cosmetic disfigurement, or anatomical
  loss affecting one or more of the following body
  systems -- neurological, musculoskeletal, special
  sense organs, respiratory, including speech
  organs, cardiovascular, reproductive, digestive,
  genito-urinary, hemic and lymphatic, skin and
  endocrine

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Physical or mental Impairment Cont.

• Mental - any mental or psychological disorder,
  such as mental retardation, organic brain
  syndrome, emotional or mental illness, and
  specific learning disability
• There is NOT a comprehensive list of impairments
  under 504

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Examples of Disabilities Under 504

• orthopedic, visual, speech or hearing impairments
• cancer
• heart disease
• asthma
• dyslexia
• diabetes

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Examples of Disabilities Under 504 Cont.

• broken limbs
• ADHD/ADD
• AIDS
• recovering alcohol or drug addicts
• epilepsy
• muscular dystrophy
• multiple sclerosis
• all disabilities covered by IDEA

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IDEA and 504

• Note any student who qualifies for services
  under IDEA is also covered by 504
• Compliance with IDEA is sufficient in these cases
  to satisfy the requirements of 504

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Major Life Activity

• Learning, caring for ones self, performing
  manual tasks, walking, seeing, hearing, speaking,
  breathing or walking

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Substantial Limitation

• Substantial limitation in any major life
  activities due to a physical or mental impairment
  qualifies an individual for eligibility for
  services under 504
• Environmental, cultural and/or economic
  disadvantages are NOT covered

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Dont Get Snagged on Prongs 2 and 3 of Eligibility

• 2nd and 3rd prongs of 504 eligibility cover
  individuals with a history of a disability or
  those perceived as having a disability
• While a record of an impairment or being
  regarded as having an impairment by a district
  gives rise to anti-discrimination protection
  under 504, these prongs to not oblige the school
  to provide FAPE

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Dont Get Snagged on Prongs 2 and 3 of
Eligibility Cont.

• Since the student qualifying under prong 2 or 3
  does not, in fact, HAVE a mental or physical
  disability, there can be no need for special
  education and related aids and services
• Put more bluntly -- these two prongs of the
  definition are legal fictions.
• District has no duty to refer, evaluate, or place
  a student who qualifies under prongs 2 or 3

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Dont Get Snagged on Prongs 2 and 3 of
Eligibility Cont.

• Example under prong 2 a child suffered from
  bone cancer in his leg at age 6, and went into
  full remission with no substantial relapses. A
  coach may not prevent the child from trying out
  for the team simply because of the childs
  medical history. That would constitute
  discrimination based on the childs record of a
  past disability.

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Dont Get Snagged on Prongs 2 and 3 of
Eligibility Cont.

• Example under prong 3 (this is extremely rare.
  This is a student who does not meet the prong one
  requirement, but is mistakenly regarded by the
  school district as if he did.) A child from a
  family with a history of TB enrolls in school.
  Although the child does not have TB, the teacher,
  who knows the family history, sits the child in
  the back of the class and neither interacts with
  the child nor allows other children to be in
  close proximity to the student. This is
  discrimination based on an incorrect perception
  that the child has a disability

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School District Responsibilities

• Child find - district must undertake efforts to
  identify and locate every qualified person
  residing in the district who is not receiving a
  public education
• Annual notice -- annually, district must take
  appropriate steps to notify handicapped persons
  and their parents or guardians of the districts
  duty

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School District Responsibilities Cont.

• Referral process -- must have a referral process
  in place
• Evaluation system --
• preplacement evaluation
• evaluation must be done prior to any subsequent
  change in placement
• periodic reevaluation

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School District Responsibilities Cont.

• Evaluation criteria -- has a broader meaning than
  just formal test instruments
• no requirements for evaluation to address
  specific areas or to include specific tests
• must use a variety of data
• FAPE -- must provide free appropriate public
  education

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School District Responsibilities Cont.

• Placement -- placement decisions must be made by
  a group of knowledgeable persons and must be
  based on a variety of data
• 504 committee consists of a group of persons
  knowledgeable about the child, the meaning of the
  evaluation data and the placement options
• no requirement that the group include parent
• plan should be in writing and should be specific

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School District Responsibilities Cont.

• LRE -- services must be provided in the least
  restrictive environment
• Parent procedural rights -- these include notice,
  an opportunity for parents to examine relevant
  records, an impartial hearing and a review
  procedure. Compliance with IDEA meets these
  requirements

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School District Responsibilities Cont.

• Hearing procedure -- district must develop a
  process by which 504 complaints can be heard and
  decided.
• hearing officer must not be an employee of
  district or related to board members
• hearing officer must be paid by district as an
  independent contractor

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OCR Examples of Accommodations

• A student with a long-term, debilitating medical
  problem such as cancer may need a class schedule
  that allows for rest and recuperation following
  therapy

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OCR Examples of Accommodations Cont.

• A student with a chronic medical problem such as
  kidney or liver disease may have difficulty
  walking distances or climbing stairs. This
  student may require a parking space close to
  school entrances, extra time between classes or
  other types of accommodations to conserve the
  students energy

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OCR Examples of Accommodations Cont.

• An emotionally or mentally ill student may need
  an adjusted class schedule to allow time for
  regular counseling or therapy
• A student with arthritis may have persistent
  pain, tenderness or swelling in the joints and
  may require a modified physical education program

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OCR Examples of Accommodations Cont.

• A student with epilepsy who has no control over
  seizures, and whose seizures are stimulated by
  stress or tension, may need accommodations for
  stressful activities as lengthy academic testing
  or competitive endeavors in PE

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504 and the Student with ADHD

• Does every student identified with ADD/ADHD
  qualify for services under 504? Not on the basis
  of ADD/ADHD alone. There must also be a
  substantial impairment of a major life activity.

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504 and the Student with ADHD Cont.

• Must a district evaluate every child suspected of
  having ADD/ADHD for services under 504? There is
  no absolute right to an evaluation under 504. If
  the parent requests an evaluation, but the
  district does not believe that the child is in
  need of special services, it may refuse to
  evaluate. Parent must be informed of their
  rights to challenge the decision.

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504 and Discipline

• OCR letters have issued policy letters which
  make it clear that the process to be followed
  under 504 is similar to the one followed under
  IDEA
• A series of short-term suspensions that are each
  10 days or fewer in duration may create a pattern
  of exclusions that constitute a significant
  change in placement

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504 and Discipline Cont.

• Three factors are relevant to the determination
  as to whether a series of short-term suspensions
  constitute a change in placement
• Length of each suspension
• Total amount of time the student is excluded from
  school
• Proximity of the suspensions to each other

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504 and Discipline Cont.

• For removals constituting a change in placement,
  the 504 committee must conduct a MDR to determine
  if the misconduct was related to the disability

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Consequences for Violating 504

• OCR is watchdog for Section 504
• Parent may file complaint with OCR alleging the
  district has failed to identify, evaluate and/or
  provide appropriate services to a student
• OCR will investigate

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Consequences for Violating 504 Cont.

• Investigation may be short and simple or it may
  take months to complete and require hundreds of
  hours of staff time and thousands of pages of
  documentation
• If OCR finds the district has discriminated, the
  district can voluntarily comply or risk loss of
  all federal funds

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Consequences for Violating 504 Cont.

• Parent may request Section 504 due process
  hearing
• different from IDEA hearing
• Parent may file a lawsuit alleging a violation of
  504
• under certain circumstances, the district may be
  liable for damages or other relief

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SECTION 504 OF THE REHABILITATION ACT