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The ADA, IDEA, and Section 504 in Education:

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Title: The ADA, IDEA, and Section 504 in Education:


1
The ADA, IDEA, and Section 504 in Education
  • Understanding the laws, advocacy strategies and
    current issues for our children with disabilities

2
Laws Protection for people with disabilities
3
NCLB
  • No Child Left Behind / 2002
  • A federal Education Law.
  • For ALL students, with a focus on traditionally
    under-served students.
  • School accountability to increase school
    performance and outcomes.
  • Requirements for highly-qualified teachers and
    paraprofessionals.
  • Process to change school or get remediation if
    school fails to meet Adequate Yearly Progress
    (AYP)

4
FERPA
  • Family Educational Rights Privacy Act
  • A federal Education Privacy Law.
  • For ALL students.
  • Right to inspect and review any and all
    records the district keeps. Timeline in CA
    within 5 days
  • Right to request correction of records that are
    inaccurate or misleading.
  • Right to consent to disclosures of personally
    identifiable information contained in education
    records.

5
504
  • Section 504 of the Rehabilitation Act / 1973
  • A federal Anti-Discrimination Law.
  • Protects ALL people with a disability that
    impairs one or more major life activity (learning
    is one).
  • Prohibits discrimination in ANY program that
    receives federal dollars.
  • Provides accommodations to remove discriminatory
    barriers.
  • In education, a 504 Plan removes barriers to
    learning and opportunities.

6
IDEA
  • Individuals with Disabilities Education Act /
    1975
  • A federal Education Law.
  • For students with at least one of 13 qualifying
    categories of disability.
  • Who ALSO need specialized support and instruction
    to benefit from education.
  • Provides a special education plan IEP -
    specialized instruction- related supportive
    services
  • IEP must be individualized to meet a students
    unique needs.

7
The ADAThe Americans with Disabilities Act /
1990
A civil rights law to prohibit discrimination
solely on the basis of disability in employment,
public services, and accomodations. Protects
Any individual with a disability who (1) has a
physical or mental impairment that substantially
limits one or more life activities or (2) has a
record of such impairment or (3) is regarded as
having such an impairment.  Note the person
must be qualified for the program, service, or
job.
8
The ADAThe Americans with Disabilities Act /
1990 (cont.)
  • ADA provided additional protection in combination
    with actions brought under Section 504.
     Reasonable accommodations are required for
    eligible students with a disability to perform
    essential functions of the job.  
  • ADA protections apply to nonsectarian private
    schools, but not to organization or private
    schools, or entities controlled by religious
    organization
  • Applies to any part of the special education
    program that may be community-based and involve
    job training/placement. Also applies to Childcare
    centers and recreation programs.

9
How do the ADA, 504 and IDEA relate to each other?
The Americans with Disabilities Act of 1990
(ADA), the Individuals with Disabilities
Education Act (IDEA), and Section 504 of the
Rehabilitation Act of 1973 represent three
attempts to improve the living conditions of
those with disabilities, to ensure equal access,
and to promote inclusion. Go to
http//www.dredf.org/advocacy/comparison.html For
a comparison of these laws.
10
What is Section 504?
Section 504 covers disabled persons in programs
receiving federal funds - public schools
explicitly, but also - publicly-funded
programs such as day care programs, -
after-school programs and even some private
schools To be eligible for services and to
ensure a Free and Appropriate Public Education
(FAPE) and protection against discrimination
under Section 504, a student must have a physical
or mental impairment that substantially limits
one or more major life activities. 29 U.S.C. 706
(8)(B) broader physical disability
definition.
11
SECTION 504Leveling the playing field
  • A student is entitled to a Free and Appropriate
    Public Education (FAPE)
  • This can consist of special services and program
    modifications
  • 504 Plan
  • Designed to reasonably accommodate the students
    condition so that his/her needs are met as
    adequately as the needs of students without
    disabilities.
  • Provided in the Least Restrictive Environment
    (LRE)
  • --Removes Barriers, Provides equal access--
  • EXP Ramp into the school to access learning
    like other students, Computer access so student
    can show what she knows.

12
LEA REQUIREMENTS
? Recipients of federal monies must provide
FAPE ? Must provide regular or special education
? LEA must appoint a 504 Coordinator ? LEA
must develop implement Section 504 policies and
procedures (LEAs may adopt IDEA procedures for
504.) ? LEA must provide parent/guardian with
procedural safeguards ? Annually identify and
locate all students with disabilities (Child
Find) ? Have Grievance Procedures
13
Free Appropriate Public Education (FAPE)
Section 504/ADA
  • Requires FAPE be provided to each student that
    qualifies under Section 504
  • Defines FAPE as general education, special
    education and related aids services,
  • Services must be individually designed and
    provided so they meet the educational needs of
    the student
  • Students have the same access to all
  • programs, the same as a student
  • without disabilities

14
504 Plan describes services, accommodations
modifications
Students may receive services, accommodations and
modifications for equal access to educational
opportunities afforded all students. Accommodatio
ns are program adjustments made to remove
disability-related barriers to full participation
in school leveling the playing field Academic
modifications may be necessary even if major
activity of learning is not affected. Ex
P.E. curriculum changes, school
schedule Nonacademic AND extracurricular
activities are included. Ex field trips,
athletics and assemblies. ALL determined by
students individual needs.
15
Services, Accommodations and Modifications
  • Accommodations for children with diabetes might
    include
  • Ability to leave class when needed
  • Free access to food and water
  • Preferential seating
  • Administration of health protocols in class
  • Additional time to complete assignments
    without penalty
  • Ability to make up work missed to fulfill
    health-related needs or doctors appointments
    without penalty.

16
RELATED SERVICES
  • Examples of Related Services
  • Physical Therapy
  • Occupational Therapy
  • Counseling
  • Assistive Technology
  • Speech or Language Services

17
Relationship of Protective Laws
ADA
IDEA-eligible students are protected
by ALL these laws just
discussed. A Student with an
IEP may also need accommodations
to prevent discrimination.
SECTION 504
IDEA Special Education
School Focus
Community Focus
18
IDEA Disabilities
  1. Autism
  2. Deafness / HH
  3. Deaf-Blindness
  4. Hearing Impairment
  5. Mental Retardation
  6. Multiple Disabilities
  7. Orthopedic Impairment
  1. Other Health Impairment
  2. Serious Emotional Disturbance
  3. Specific Learning Disabilities
  4. Speech or Language Impairment
  5. Traumatic Brain Injury
  6. Visual Impairment / Blindness

19
Section 504 Impairment Categories
  • HIV/AIDS
  • Tuberculosis
  • Arthritis
  • Asthma
  • Allergies
  • Diabetes
  • Obesity
  • Epilepsy
  • Heart Disease
  • Chronic Fatigue
  • Pregnancy
  • Orthopedic
  • It depends
  • Special EducationQualified Students
  • Conduct Disorder
  • Temporary Disability
  • ADD/ADHD
  • Drug and Alcohol
  • Migraine Headache
  • TBITraumatic Brain Injury
  • Cerebral Palsy
  • Cancer
  • Multiple Sclerosis

THIS LIST IS A SAMPLE OF IMPAIRMENTS AND IS NOT
AN EXHAUSTIVE LIST
20
Section 504 vs. IDEA
SECTION 504 IDEA
Civil Rights Law Educational Law
No Federal Federal/State
No Consent to Implement Required Consent Required
No Labels Labels of Disability
Evaluations Evaluations
Periodic Re-Eval Re-Eval every 3 years
FAPE FAPE
504 Plan IEP
Placement/LRE Placement/LRE
Discipline Discipline
21
Section 504 is NOT Special Education
  • IDEA
  • The student must have a disability that falls
    into one or more specific qualifying conditions.
  • The students disability must adversely affect
    educational performance.
  • Full, comprehensive evaluation, including
    psychological evaluation.
  • Parent consent required
  • Strict timelines
  • Section 504
  • The student must have a physical or mental
    impairment.
  • The students disability must prevent equal
    access to or benefit from the schools programs
    or services.
  • Evaluation using relevant information from a
    variety of sources. Decision by a group of
    knowledgeable persons.
  • Parent consent required
  • Reasonable timelines

22
Cant Have Both
  • It should be noted that students who qualify for
    special education services under IDEA will NOT
    automatically qualify as a handicapped person
    under Section 504.
  • A parent cannot turn down IDEA services in place
    of Section 504 services.

23
504 EVALUATIONS Review of RecordsCan be
Formal Evaluations like IDEA Parent Permission
must be given for all Initial Section 504
Meetings
24
RECORDS INVOLVED COULD INCLUDE, BUT NOT LIMITED
TO
  • Formalized testing such a Dyslexia assessment or
    outside evaluation information
  • Dr. Diagnosis
  • Current and past grades
  • Teachers reports and notes
  • Information from parents and other agencies
  • State assessment scores or other school
    administered test
  • Observations, discipline records, attendance
    records, RTI records
  • Health records and adaptive behavior information

25
Section 504 Team Regulations require a
group of persons, at least 2, including those
knowledgeable about the child, the meaning of
evaluation data, and the placement options.
26
Section 504 Team Parents are not
requiredNo maximum of people requiredNo
guidance on the level of knowledge about the
child that is required
27
A Qualified Handicapped Individual is a person
who
  • Has a physical or mental impairment which
    substantially limits one or more major life
    activities
  • Has a record of such an impairment or
  • Is regarded as having such an impairment.
  • Substantial Key Question to Remember Does
    the
  • Student have an equal opportunity to participate
    in
  • And benefit from his/her education compared to
    non-
  • Disabled peers?

28
ADAAA 2008 greatly reduced the bar for Section
504 qualification
  • It underscores Congress express intent that the
    question of whether an individuals impairment
    qualifies as a disability should not demand
    extensive analysis. (P.L. 110- 325, 2(b))
  • An impairment can be a disability even if
    episodic or in remission. ? E.g., epilepsy or
    cancer. ? if it meets the substantially
    limits standard when the impairment is active.
    (P.L. 110-325, 4).

29
Illustration of Regarded as Disabled
  • Anna, a student with mild diabetes controlled by
    medication, is barred by the staff from
    participation in certain sports because of her
    diabetes. Even though Anna does not actually have
    an impairment that substantially limits a major
    life activity, she is protected under Section 504
    because she is treated as though she does.

30
A Record of Impairment
  • For the purposes of protection
  • EXAMPLES of individuals who have a record of an
    impairment are persons who have histories of
    mental or emotional illness, learning
    disabilities, asthma, heart disease, cancer, etc.
    (who are recovering or managed by medication) and
    students in special education.

31
3 QUESTIONS 1. Does the student have,
regarded as having, or has a record of having a
physical or mental impairment?2. Does the
impairment substantially reduce or lessons a
students ability to access learning in the
educational setting because of a learning,
behavior, or health-related condition?3. What
major life activity does it limit?
32
Section 504 Disability Defined
Physical or Mental Impairment Physical or Mental Impairment Major Life Activities Record of Impairment Regarded Impairment
Physiological disorder, contagious disease, cosmetic disfigurement or anatomical loss in one or more system Neurological Musculoskeletal Respiratory Cardiovascular Reproductive Digestive Bowel Genito-urinary Hemic Lymphatic Skin Endocrine Immune System Normal Cell Growth Bladder Reproductive Functions Mental or psychological disorder including Mental retardation Organic brain syndrome Emotional or mental illness Specific learning disabilities Mental or psychological disorder including Mental retardation Organic brain syndrome Emotional or mental illness Specific learning disabilities Major life activities include Self-care Manual tasks Walking Seeing Hearing Speaking Breathing Sitting Standing Reaching Thinking Concentrating Reading Communicating Interacting with others Learning Working Eating Sleeping Lifting Bending The individual has A history of impairment    A record of having been misclassified as having an impairment The individual has An impairment not limiting a major life activity, but treated as disabled by the covered entity    No impairment, but treated as disabled by the covered entity
Substance Abuse (recovering alcoholic or addict Major life activities include Self-care Manual tasks Walking Seeing Hearing Speaking Breathing Sitting Standing Reaching Thinking Concentrating Reading Communicating Interacting with others Learning Working Eating Sleeping Lifting Bending
Does not include current, illegal drug
or alcohol abusers. Non-exhaustive list.
33
Disability determinations must be made without
considering mitigating measures.
  • Mitigating measures measures that help correct
    or ameliorate an individuals physical or mental
    condition.
  • Examples medication, medical supplies, and
    equipment, low vision and hearing devices,
    prosthetics, use of assistive technology and
    reasonable accommodations.
  • Exception ordinary corrective lenses that fully
    correct visual acuity or eliminate refractive
    error, as distinguished from low vision devices
    that magnify, enhance, or otherwise augment a
    visual image. (P.L. 110-325, 4)

34
Who is EXCLUDED
  • ADAAA 2008 clarifies that minor and transitory
    impairments are not protected disabilities.
  • Transitory actual or expected duration of 6
    months or less
  • Minor e.g., broken arm
  • SEE NEXT SLIDE

35
Review on a Case by Case Basis for State
Assessment Purposes
  • A student may need a 504 plan for assessments ?
  • HOWEVER, the school divisions should ask ?
  • Is there another means of providing the child
    with a broken arm the state assessment? ?
  • Is there another testing window at a later date?
    If so, test the child then.
  • Remember Virginias requirement that
    accommodation must be provided in classroom to
    qualify for testing accommodations.

36
Who is EXCLUDED
  • Persons who are current drug users OCR Senior
    Staff Memorandum, 17 EHLR 609 (1991)
  • Additional exclusions - OCR Senior Staff
    Memorandum, 19 IDELR 869 (1993)
  • Transvestitism, transsexualism, pedophilia,
    exhibitionism, voyeurism, gender identity
    disorders not resulting from physical
    impairments, or other sexual behavior disorders ¾
  • Compulsive gambling, kleptomania, or pyromania ¾
  • Psychoactive substance use disorders resulting
    from current use of illegal drugs

37
Section 504 Eligibility is NOT Automatic, but may
be considered IF
  • Suspension or expulsion is being considered and
    you dont have a basis to consider eligibility
    under IDEA
  • Retention is being considered
  • A student shows a pattern of not benefiting from
    the instruction being provided
  • A student is referred for evaluation but it is
    determined not to do an evaluation under IDEA OR
    when a student is evaluated and is found
    ineligible under IDEA
  • A parent requests evaluation for a
  • Section 504 plan

38
Section 504 Eligibility is NOT Automatic, but may
be considered IF
  • A student is chronically absent due to medical/
    health issues
  • A student develops a medical condition that may
    need help, especially a chronic health condition
  • A student requires more time for homework and
    in-school assignments
  • The student has substantial difficulty
    organizing, planning, and completing assignments
  • The student is identified as at risk or
    exhibits the potential for dropping out of
    school
  • A disability of any kind is suspected or
  • A new building or remodeling is being considered.

39
THE SECTION 504 PLAN
40
Issues for Team Consideration
  • The following factors are considered by a team
    knowledgeable about the student and the
    disability
  • Evaluation results
  • Section 504/ADA eligibility (remember the list
    was expanded January 2009)
  • The students unmet needs
  • Services and/or accommodations based on
    eligibility
  • Possible staff inservice
  • Least Restrictive Environment (LRE)
  • Remember, you can no longer consider mitigating
    circumstances.

41
504 Accommodation Plan
  • Who creates it?
  • Whoever works with the student (think outside the
    box to include the bus driver, cafeteria staff,
    lunch monitors) that might encounter a situation
    where the impairment manifests itself.
  • Consider all school environments and
    requirements.
  • Get input from a variety of sources, including
    the nurse, student, parent.

42
WHO GETS A COPY?
  • Each teacher serving the student (dont forget
    second semester teachers)
  • Other school staff who will need to implement
    provisions of the Plan (bus drivers, lunch
    aides, nurse, etc.)
  • Student, if able to understand and self-advocate

43
WHERE IS IT KEPT?
  • Cumulative file, so it is sent along with other
    records when records are requested by another
    school
  • A copy is sent to Department of Exceptional
    Programs

44
WHEN IS IT REVIEWED?
  • Once a year
  • If classes are changed or added that may have an
    impact on the Plans appropriateness/effectiveness
  • If the impairment changes significantly
  • If the building/class location
  • changes

45
Implementation within the General Education
EnvironmentACCOMMODATIONS and MODIFICATIONS
46
ORGANIZATION/MANAGEMENT
  • There may be a need to modify
  • Instructional day (i.e., allow more time to pass
    in the hall modify class schedule)
  • Classroom organization/structure (i.e., adjust
    students placement in classroom reduce external
    stimuli change classroom management style)

47
COMMUNICATION
  • There may be a need to modify
  • Parent / student / teacher communications (i.e.,
    Journals, meetings, duplicate sets of texts.)
  • Staff communications (i.e., Building team
    meetings, network with other staff, identify
    resource staff)
  • School / community agency communication (i.e.,
    assist in agency referrals)

48
POLICY AND PROCEDURES
  • There may be a need to modify the school policies
    procedures to
  • Allow additional excused absences for health
    reasons.
  • Adjust transportation, parking arrangements.
  • Approve early dismissal for service agency
    appointments.

49
TEACHING STRATEGIES
  • There may be a need to modify
  • Teaching methods (i.e., Adjust testing
    procedures individualize assignments use
    technology)
  • Teaching materials (i.e., Use materials that
    address students learning style adjust reading
    level of assignments)

50
STUDENT ENVIRONMENT
  • There may be a need to modify
  • Classroom/building climate for health purposes
    (i.e., use air purifier control temper ature
    accommodate specific allergies)
  • Classroom/building to accommodate equipment needs
    (i.e., develop evaluation plan for students who
    use wheelchairs schedule classes in accessible
    areas)

51
STUDENT PRECAUTIONS
  • There may be a need to modify building health and
    safety procedures
  • For example
  • To accommodate special diets and
  • To administer medication appropriately.
  • See Specialized Health Care Procedures, Virginia
    Department of Health and Virginia Department of
    Education.

52
DISCIPLINE The same protections available to
students with disabilities under IDEA are
available to students qualified under Section 504.
53
EXCEPTIONS
  • Students who are disabled solely by virtue of
    alcoholism or drug addiction.
  • These students are excluded from Section 504
    consideration if they are current users.
  • BUT -- Persons who have completed or are
    participating in a supervised rehabilitation
    program and continue to refrain from abuse may be
    qualified for Section 504.

54
An LEA may discipline a Section 504 student
without applying due process procedures if
  • The school is disciplining the student with
    respect to the use or possession of illegal drugs
    or alcohol and
  • The student is currently engaged in the use of
    illegal drugs or alcohol and
  • The disciplinary action taken with respect to the
    disabled student is the same as those taken with
    nondisabled students in similar
  • situations.

55
UNDERSTANDING THIS PROVISION
  • Currently engaging in use is quite narrow.
  • In such cases, parents cannot resort to a due
    process hearing under Section 504 to contest the
    disciplinary action.
  • NOTE OCR distinguishes between use and
    possession. Possession of illegal drugs or
    alcohol at school does not automatically equate
    with current use of drugs or alcohol.

56
BEHAVIOR IMPROVEMENT PLANS
  • Individual BIP provisions supplant the use of the
    regular discipline code.
  • Failure to discipline students in accordance with
    his/her BIP constitutes a failure to properly
    implement the Section 504 plan, which is a denial
    of FAPE.

57
BEHAVIOR IMPROVEMENT PLANS
  • Individual BIP provisions supplant the use of the
    regular discipline code.
  • Failure to discipline students in accordance with
    his/her BIP constitutes a failure to properly
    implement the Section 504 plan, which is a denial
    of FAPE.
  • A BIP ensures that a student with a disability is
    able to maintain successfully the placement that
    has been determined to appropriately meet his
    educational needs.

58
A BMP is considered a related service under
Section 504 according to the 6th Circuit Court of
Appeals. See Morgan v. Chris L., 25 IDELR 227,
6th Cir. 1997.
59
FUNCTIONAL BEHAVIOR ASSESSMENTS (FBA)
  • FBAs are not mandated by Section 504
  • They are mandated by MCPS Procedures
  • OCR believes that A BIP developed without
    conducting a FBA does not meet the requirements
    of FAPE due to
  • Teams must develop a BIP on the behaviors being
    exhibited by the student which then provided
    equal access
  • Unless a Team determines the function of the
    exhibiting behavior then a BIP that meets
  • the needs of the student cannot be
  • developed

60
FUNCTIONAL BEHAVIOR ASSESSMENTS (FBA)
  • FBAs are not mandated by Section 504
  • They are mandated by MCPS Procedures
  • OCR believes that A BIP developed without
    conducting a FBA does not meet the requirements
    of FAPE due to
  • Teams must develop a BIP on the behaviors being
    exhibited by the student which then provided
    equal access
  • Unless a Team determines the function of the
    exhibiting behavior then a BIP that meets
  • the needs of the student cannot be
  • developed

61
MANIFESTATION DETERMINATIONREVIEW
62
MANIFESTATION DETERMINATION REVIEW (MDR)
  • The school division must conduct a MDR before
    suspending a student with a disability for more
    than 10 days.
  • Such a disciplinary action is considered a
    significant change in placement, triggering the
    re-evaluation requirements.
  • 34 C.F.R. 104.35(a) OCR Staff Memorandum, 16
    EHLR 491, OCR 1989 Broward County (FL) Sch.
    Dist., 36 IDELR 159 (OCR 2001).

63
MANIFESTATION DETERMINATION REVIEW (MDR)
  • Factors to consider when determining if there is
    a pattern or removals
  • Length of each suspension
  • Proximity of the suspensions to each other
  • Total time the student is excluded from school.
  • Alachua County (FL) School District, 27 IDELR
    961, OCR 1997.

64
MANIFESTATION DETERMINATION REVIEW (MDR)
  • Section 504 does not impose an obligation to
    provide continuing services for properly expelled
    students.
  • However, it is discriminatory to not provide
    services if services are provided in these
    instances to nondisabled students.
  • If the school division has adopted IDEA
    requirements to comply with Section 504, IDEA
    directs the school divisions obligations.

65
BUS SUSPENSIONS
  • Section 504 parallels IDEA provisions that a bus
    suspension counts as a removal if FAPE is
    interrupted.
  • According to OCR, only the schools offer to
    provide alternative transportation erases the
    removal..

66
BUS SUSPENSIONS
  • If the student comes to school on his/her own, or
    the parent brings the student, and the school
    does not offer an alternative (reimbursement or
    alternative form of transportation), OCR
    considers the student removed from his placement
    that day even if the student is there.
  • See OCR 1991 Mobile County (AL) Sch. Dist. 18
    IDELR 70

67
KEY POINTS
  • Accommodations that meets the need of the student
  • Reasonable Accommodations
  • Equal Access
  • Refusal to implement a 504 Plan is willful
    discrimination and a Section 1983 Violation
  • Current drug and alcohol use automatically
    cancels 504 protections
  • Review MCPS 504 Guidelines
  • FERPA Confidentiality provisions apply to
  • Section 504

68
KEY POINTS
  • Students that move-in with existing 504 Plan
    should be implemented as written. After period
    of reasonable data collection time, can revise
    on MCPS forms.
  • Health Care Plans or Section 504 Plans?
  • A 504 Plan can be a Health Care Plan

69
MCPS FORMS
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  • BE VERY SPECIFIC WHEN FILLING THIS SECTION OUT
  • AREA OF CONCERNS
  • Should NOT be the Dr. Diagnosis
  • All Interventions/Accommodations being used up to
    this point should be listed and described, if
    necessary

72
  • Evaluation Tool can be
  • Observations
  • Grades
  • Dr. Report or Diagnosis
  • Parent provided testing
  • Be Specific when describing the findings

73
  • Both Criteria need to be marked YES to be found
    Eligible
  • Make sure your evaluation data supports your
    answers
  • Make a note if MORE EVALUATION data is needed to
    make a decision Table the decision if more data
    is needed

74
  • THIS SECTION WILL BE CHANGED TO REFLECT A
    PARAGRAPH FORMAT FOR DESCRIBING SEVERITY AND
    DURATION

75
  • RELATED SERVICES SECTION IS FOR PT, OT, SLI, AND
    BIP SERVICES

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CHANGES TO THE FORMS
  • Permission to Conduct Initial Evaluation
  • Rating scales on Life Activities will be
    paragraph format instead of a number scale
  • More Data Needed section will be added under
    Eligibility Determination Section

85
Questions/Dialogue
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