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SECTION 504: WHAT ELEMENTARY PRINCIPALS NEED TO KNOW Presented by: JIM WALSH jwalsh@wabsa.com www.WalshAnderson.com IDENTIFICATION OF STUDENTS Key Points: With the broader coverage of the law, there will be more “504 students” than in the past. 504 coverage is NOT limited to those with an “educational need.” 504 identification involves a comparison. Compare the student’s performance of the major life activity to that of “most people in the general population.” Students who have a “record of” a disability, or who are “regarded as” having a disability are entitled to non‐discrimination, but not an accommodation plan. DEFINITIONS The basic definitions remain the same. DISABILITY—The term “disability” means, with respect to an individual— (A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in paragraph (3)). 42 U.S.C. §12102(4)(a)(1). Here is the list of “major life activities” with the new ones in bold: …[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working. 42 U.S.C. §12102(4)(a)(2)(A). The term “major life activities” also includes “the operation of a major bodily function” as follows: For purposes of paragraph (1), a major life activity also includes the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. 42 U.S.C. §12102(4)(a)(2)(B). © Walsh Anderson 2014 Page 2 of 18 NEED? OR SUBSTANTIAL LIMITATION? Notice that 504 does not limit its coverage to students with an “educational need.” “Educational need” is a term associated with the Individuals with Disabilities Education Act (IDEA). We often use the term “educational need” when referring to students who need “specially designed instruction” due to a disability. That’s IDEA‐speak. Section 504 has always dealt with a much broader range of activities. Schools, like any other covered entity, have to ensure that their services are equally available to those who are substantially limited in any of these major life activities. Thus Section 504 may require you to accommodate the needs of a student who has a disability which has nothing to do with his or her instructional needs. Examples: asthma, severe allergies, diabetes, eating disorders. Rather than “educational need,” Section 504 uses the term “substantially limits.” An IMPAIRMENT is not a DISABILITY unless it SUBSTANTIALLY LIMITS the person in the performance of a major life activity. Congress was not happy with the narrow interpretation the courts applied to the term “substantially limits” and directed the EEOC to provide a broader definition. EEOC has now issued its final regulations under the ADA, which include the following at 76 Federal Register No. 58, page 16978: (i)
The term “substantially limits” shall be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA. “Substantially limits” is not meant to be a demanding standard. (ii) An impairment is a disability within the meaning of this section if it “substantially limits” the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered a disability. Nonetheless, not every impairment will constitute a disability within the meaning of this section. (Emphasis added). COMPARISON GROUP While the new definitions call for a broader, more generous coverage, one thing has not changed: 504 requires a comparison of the student to “most people in the general population.” This means that you measure the student against chronological peers in the entire state or country.  The fact that the student does not measure up to his own potential does not mean that the student is “substantially limited.” © Walsh Anderson 2014 Page 3 of 18  The fact that the student does not do as well as her older sister does not mean that the student is “substantially limited.”  The fact that the student is performing poorly compared to the kids in your very high performing district does not mean that the student is “substantially limited.” The proper question is: how does this student perform when we compare this student with “most people” in the general population? Remember that the comparison is not about school performance in general, but rather, the specific major life activity under consideration. “RECORD OF” AND “REGARDED AS” The reference in the law to those who have “a record” of a disability refers to those who do not currently meet the definition of “person with a disability” but did in the past. The most common situation schools encounter with regard to this prong of the definition is with the student who has been dismissed from the special education program—the student has a “record” of a disability. Those who are “regarded as” having a disability are erroneously so regarded. In other words, they also do not currently have an impairment that substantially limits a major life activity, but they may be erroneously regarded by others as such. The ADA Amendments define the term: (A) has a physical or mental impairment that does not substantially limit major life activities but that is treated by a recipient as constituting such a limitation; whether or not the impairment limits or is perceived to limit a major life activity. (B) [being regarded as having an impairment] shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less. Schools are not required to develop a plan to accommodate students who have a “record of” or are “regarded as” having a disability. Instead, the school is required to ensure that no discrimination occurs due to the “record” or the erroneous perception. MITIGATING MEASURES Key Points: Mitigating measures are not to be taken into account when determining if a student should be identified. Exception: glasses and contact lenses. Mitigating measures should be considered when developing a plan for a student. © Walsh Anderson 2014 Page 4 of 18 When determining if a student should be identified as a student with a disability under Section 504, “mitigating measures” are to be ignored. This is one of the main points of the new provisions. Congress specifically and directly rejected the reasoning of the U.S. Supreme Court on this issue. So under the new amendments, students are disabled under Section 504 if they have a physical or mental impairment that WOULD substantially limit them in a major life activity IF THEY WERE NOT taking advantage of mitigating measures. Exception to that general rule: ordinary eyeglasses and contact lenses. There are examples of “mitigating measures” listed in the law: The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as— (I) medication, medical supplies, equipment, or appliances, low‐vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies; (II) use of assistive technology; (III) reasonable accommodations or auxiliary aids or services; or (IV) learned behavioral or adaptive neurological modifications. 42 U.S.C. §12102(4)(a)(4)(E)(i). DYSLEXIA Key Points: Students with dyslexia may qualify for special education under IDEA. Broader coverage for 504 means that most students with dyslexia who do not meet IDEA standards will meet 504 standards. Dyslexia is a physical or mental impairment, so some students with dyslexia will be served under Section 504. It is also a form of a learning disability, so some students with dyslexia will be served under IDEA. Under state law, students with dyslexia are entitled to some degree of special treatment even before they are identified under either 504 or IDEA. DYSLEXIA AND SPECIAL EDUCATION If the student needs specially designed instruction due to one of the disabilities that qualifies for IDEA services, the student is eligible for special education services. The federal law lists 13 basic categories of disability that can qualify. Dyslexia is not one of those 13. However, “specific learning disability” is one of the 13 categories, and that term is defined as follows: © Walsh Anderson 2014 Page 5 of 18 The term [specific learning disability] means a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, that may manifest itself in an imperfect ability to listen, think, speak, read, write, spell or do mathematical calculations, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental dysphasia. The regulation lists dyslexia as a condition that is included in the definition of LD, but that does not mean that every student who has dyslexia also has a learning disability. The student still has to meet state criteria for having a learning disability. Each state is permitted to define the term. Here is the Texas regulation defining “learning disability” for special education purposes: (9) Learning disability. (A) Prior to and as part of the evaluation described in subparagraph (B) of this paragraph and 34 CFR §§ 300.307 to 300.311, and in order to ensure that underachievement in a child suspected of having a specific learning disability is not due to lack of appropriate instruction in reading or mathematics, the following must be considered: (i)
data that demonstrates the child was provided appropriate instruction in reading (as described in 20 U.S.C. § 6368(3)), and/or mathematics within general education settings delivered by qualified personnel; and (ii)
data‐based documentation of repeated assessments of achievement at reasonable intervals, reflecting formal evaluation of student progress during instruction. Data‐based documentation of repeated assessments may include, but is not limited to, response to intervention progress monitoring results, in‐class tests on grade level curriculum, or other regularly administered assessments. Intervals are considered reasonable if consistent with the assessment requirements of a student’s specific instructional program. (B) A student with a learning disability is one who: (i)
has been determined through a variety of assessment tools and strategies to meet the criteria for a specific learning disability as stated in 34 CFR § 300.8(c)(10), in accordance with the provisions in 34 CFR § 300.307 to 300.311; and (ii)
does not achieve adequately for the child’s age or meet state‐
approved grade‐level standards in oral expression, listening © Walsh Anderson 2014 Page 6 of 18 comprehension, written expression, basic reading skill, reading fluency skills, reading comprehension, mathematics calculation, or mathematics problem solving when provided appropriate instruction, as indicated by performance on multiple measures such as in‐class tests, grade average over time (e.g., six weeks, semester); or norm‐or‐criterion referenced tests; statewide assessments; or a process based on the child’s response to scientific, research‐based intervention; and (I)
(II)
does not make sufficient progress when provided a process based on the child’s response to scientific, research‐based intervention (as defined in 20 U.S.C. § 7801(37)), as indicated by the child’s performance relative to the performance of the child’s peers on repeated, curriculum‐based assessments of achievement at reasonable intervals, reflecting student progress during classroom instruction; or exhibits a pattern of strengths and weaknesses in performance, achievement, or both relative to age, grade‐
level standards, or intellectual ability, as indicated by significant variance among specific areas of cognitive function, such as working memory and verbal comprehension or between specific areas of cognitive function and academic achievement. 19 TAC § 89.1040(c)(9)(B). A diagnosis of dyslexia does not, by itself, make a student eligible for special education. Dyslexia is a spectrum disorder, meaning that for some students the condition will produce conditions that satisfy the LD definition. For others, this will not be the case. If they do not meet the state’s definition of LD, they cannot be classified as such due to dyslexia. DYSLEXIA AND 504 Students who have dyslexia but do not qualify under IDEA are strong candidates for identification under 504. Reasonable accommodation is provided under Section 504 to those students who 1) have a physical or mental impairment which 2) substantially limits the student 3) in a major life activity. There are three parts to that definition. Physical or mental impairment. Dyslexia is a physical or mental impairment. © Walsh Anderson 2014 Page 7 of 18 Major life activity. “Learning” is a major life activity. “Reading” is a major life activity. So dyslexia is a condition which may amount to a physical or mental impairment which substantially limits a major life activity. Substantially limits. The other part of the definition involves the degree of impairment. It must substantially limit the student. If the school concludes that the student’s dyslexia does not substantially limit the student, the student should not be identified under Section 504. One of the problems here lies in the definitions. A disability under 504 must “substantially limit” the student in a major life activity. Our state law definition of dyslexia, however, only requires “difficulty.” Here is the Texas definition of dyslexia: “Dyslexia” means a disorder of constitutional origin manifested by a difficulty in learning to read, write or spell despite conventional instruction, adequate intelligence, and sociocultural opportunity. T.E.C. 38.003(d)(1). Thus a student who is having “difficulty in learning to read” may be considered dyslexic under state law, and yet not have so much difficulty that they are “substantially impaired” in a major life activity. Thus you have three types of students with dyslexia: 1) those who meet our state definition of LD, including the need for “specially designed instruction” and thus qualify under IDEA; 2) those who do not qualify as LD but are substantially limited in a major life activity and thus qualify under Section 504; and 3) those who have “difficulty in learning” but are not “substantially limited” in learning or reading, and thus qualify for services required by the State of Texas. The Procedures Concerning Dyslexia and Related Disorders, contains the following statements with regard to dyslexia and 504: Is every student suspected of having dyslexia “disabled” within the meaning of §504? No, not in all cases. To be a person with a disability within the meaning of §504 the student must have a disability that is substantially limiting, affects a major life activity…..and affects the student’s education. Thus a student with dyslexia may be considered to have a disability within the scope of §504 if the condition substantially limits the student’s learning. That is the current version of the Handook. However, the Handbook is up for revision in 2014, with final approval expected in the summer. The revised handbook, in DRAFT stage, puts it this way: © Walsh Anderson 2014 Page 8 of 18 Is every student suspected of having dyslexia “disabled” within the meaning of Section 504? To be a person with a disability within the meaning of Section 504, the student must have a disability that is substantially limiting, affects a major life activity (such as caring for ones’ self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working (34 C.F.R. 104.3(j), and affects the student’s education. Reading is now a major life activity. Congress added to the list in the Americans with Disabilities Act Amendments Act of 2008 (ADAAA). The list now includes major bodily functions as well as eating, sleeping, standing, lifting, bending, reading, concentrating, thinking, and communicating (42 U.S.C. 12101(2)(A). Therefore, a student with dyslexia may be considered to have a disability within the scope of Section 504 if the condition substantially limits the student’s reading. The current Handbook also states that “Whether a student is eligible for 504 accommodations is a separate determination from the determination that the student has dyslexia.” Page 18. The DRAFT revision puts it slightly differently: If the student’s difficulties are unexpected, the [504] committee must then determine if the student has dyslexia. If the student has dyslexia, the committee also determines whether the student has a disability under Section 504. Bottom line: almost all students with dyslexia will be entitled to services under either IDEA or 504. DISCIPLINE Key Points: 504 discipline is much like IDEA discipline. Manifestation determinations are required. Special rules apply to drug and alcohol offenses. Section 504 contains many of the same features as IDEA with regard to the discipline of students. In fact the 5th Circuit Court of Appeals held as far back as 1981 that 504 requires a manifestation determination prior to any long term exclusion from services. This was before the term “manifestation determination” became common and long before it was enacted into federal law in IDEA. That happened in 1997. © Walsh Anderson 2014 Page 9 of 18 The case was S‐1 v. Turlington, one of the first to address the issue of the long term expulsion of a student with a disability. Citing both 504 and the predecessor to IDEA, the court made several key points: Accordingly, we hold that under the EHA [now the IDEA], Section 504, and their implementing regulations: (1) before a handicapped student can be expelled, a trained and knowledgeable group of persons must determine whether the student’s misconduct bears a relationship to his handicapping condition; (2) that an expulsion is a change in educational placement thereby invoking the procedural protections of the EHA and Section 504; (3) that expulsion is a proper disciplinary tool under the EHA and Section 504, but a complete cessation of educational services is not. A manifestation determination is required prior to a change of placement. Although the 5th Circuit decision only dealt with expulsions, the OCR has required a manifestation determination prior to any “change of placement” due to a disciplinary infraction. In Texas, this could include a long term assignment to the DAEP. There are special rules for the discipline of students based on drug and/or alcohol use. If a school disciplines a student based on the student’s use of illegal drugs, the student thereby loses the protection that Section 504 would normally provide. In other words, even if the student is qualified under Section 504 and recognized as such by the school district, the student can be disciplined for drug use to the same extent as any other student and without the procedural protections that Section 504 calls for. The definition of a student with a disability excludes illegal drug users when the school acts on the basis of such use. 29 U.S.C. 705(20)(C)(i) and (iv). If a school disciplines a 504‐identified student for alcohol use it may do so to the same extent as it would with a non‐disabled student. The student is not excluded from the definition of a student with a disability, but the law specifically permits disciplinary action to the same degree that it would be taken with non‐disabled students. 29 U.S.C. 705(20)(C)(iv). SECTION 504 & IDEA ELIGIBILITY Once you are diagnosed by a doctor or psychologist, you are eligible under 504—right? Wrong. There is a big difference between the diagnosis of a condition and an impairment that substantially limits the individual. Neither a doctor’s diagnosis nor a DSM‐V diagnosis alone makes a student eligible under 504. There have been several cases involving students with ADD or ADHD seeking the protections of 504 and/or the ADA. The Bercovitch case is one example. In concluding that the private school student was not disabled within the meaning of the ADA, the First Circuit stated: © Walsh Anderson 2014 Page 10 of 18 On the facts of a specific case, a plaintiff diagnosed with ADHD may have a mental impairment within the meaning of the statute. [FN18] See 28 C.F.R. § 36.104 (1997). But that impairment must also limit a major life activity to a substantial degree… FN18 …. [ADHD] is listed as a ‘mental disorder’ in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM‐ IV). We particularly note that the DSM‐IV admonishes that because of the ‘imperfect fit between the questions of ultimate concern to the law and the information contained in a clinical diagnosis[,] in most situations, the clinical diagnosis of a DSM‐IV mental disorder is not sufficient to establish the existence for legal purposes of a 'mental disorder,' 'mental disability,' 'mental disease,' or 'mental defect.' In determining whether an individual meets a specified legal standard ... additional information is usually required beyond that contained in the DSM‐IV diagnosis.... It is precisely because impairments, abilities, and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment or disability. DSM‐IV at xxiii. Bercovitch v. Baldwin School, 133 F.3d 141 (1st Cir. 1998). How should the school respond to “504 prescriptions” from physicians? When the parent brings in a medical diagnosis, school officials should follow up by gathering more information and making an eligibility decision. But that eligibility decision is up to the knowledgeable group put together by the school. 504 regulations address this: In interpreting evaluation data and in making placement decisions, a recipient shall (1) draw upon information from a variety of sources, including aptitude and achievement tests, teacher recommendations, physical condition, social or cultural background, and adaptive behavior, (2) establish procedures to ensure that information obtained from all such sources is documented and carefully considered, (3) ensure that the placement decision is made by a group or persons knowledgeable about the child, the meaning of the evaluation data, and the placement options, and (4) ensure that the placement decision is made in conformity with Section 104.34. [which refers to LRE and related issues]. 34 CFR 104.35(c), emphasis added. We recommend a three‐step process anytime parents bring in a doctor’s recommendation or a report from any qualified outsider, such as a psychologist, dyslexia expert, or autism specialist. First, say “thank you.” Second, ask the parent to sign a release authorizing the school to contact the doctor or other person for more information. The release is necessary for the school to disclose confidential information about the student. Third, follow up with some simple, straightforward questions to the doctor or other expert. We call this “mild cross‐
examination.” © Walsh Anderson 2014 Page 11 of 18 What about the parent who refuses idea services but wants 504? This issue was addressed by OCR in 1996: Essentially, there are two groups of students who are “qualified students with a disability” under Section 504. The first group includes students who qualify for regular or special education and related services under Section 504 and additionally are eligible for services under the IDEA. The second group would include students who are qualified for purposes of Section 504 but do not have a disability recognized by the IDEA. For the first group of students (qualified for services under Section 504 as well as under the IDEA), the implementation of an IEP developed under the IDEA is how the Section 504 requirements . . . are met. Some other means of providing an appropriate education under Section 504 must be available for those students in the second group (qualified under Section 504 but not under the IDEA). Therefore . . . by rejecting the services developed under the IDEA, the parent would essentially be rejecting what would be offered under Section 504. The parent could not compel the district to develop an IEP under Section 504 as that effectively happened when the school followed the IDEA requirements. 25 IDELR 295 (OCR 1996). That is OCR’s view. The courts are split. We have three federal court decisions on this issue and they disagree with each other: Lamkin v. Lone Jack C‐6 School District, 58 IDELR 197 (W.D. M.o. 2012) The parents of a special education student revoked consent for IDEA services and sought Section 504 eligibility from the District. The District refused to provide Section 504 eligibility/services to the student subsequent to the parents revocation of consent for IDEA services. The Court ruled in favor of the District and held that the parents revocation of consent for IDEA services was tantamount to revocation under Section 504 citing OCR’s 1996 Letter to McKethan as persuasive. Kimble v. Douglas County School District RE‐1, 60 IDELR 221 (D.C. Col. 2013) The court held that a student was entitled to protection under 504/ADA even after the parent revoked consent for IDEA services. After such a revocation, while the student is not entitled to an IEP under IDEA, the school is still obligated to offer a “plan” under 504. In this case, the school did that, and effectively offered under 504 the same services it had offered under IDEA. The parent rejected the plan. Thus the parents could not hold the district liable for refusing to accommodate the student when the district had offered to do so. © Walsh Anderson 2014 Page 12 of 18 D.F. v. Leon County School Board, 62 IDELR 167 (N.D. Fla. 2013) The court held that withdrawal of consent for services under IDEA does not waive or forfeit the right to non‐discrimination and/or services under 504 and the ADA. The court held that this was not a “waiver” because the parent specifically requested services for the hearing impaired student under 504 when she withdrew consent for IDEA services. The court noted that “waiver” is “an intentional relinquishment of a known right. An explicit request for services can hardly constitute a waiver of those services.” As to “forfeiture” the court noted that “there is no basis for asserting that by withdrawing consent to offered IDEA services, the plaintiff forfeited the right to different services that allegedly were available under a different federal statute.” Key Quote: So this plaintiff’s complaint states a claim on which relief can be granted. And that is so regardless of which side is right on a different issue: whether a parent’s withdrawal of consent to an IEP developed under the IDEA also terminates the right to a free appropriate public education (“FAPE”) under the Rehabilitation Act. Comment: For those of you keeping score, it is now 2‐1. Two courts have held that revocation of consent under IDEA does not terminate all rights that might be asserted under 504/ADA. One court held that it does. This short opinion is well reasoned. The court carefully distinguishes between the right to FAPE under 504 vs. the right to other services. The court does not express an opinion about the FAPE issue, instead noting the two other cases and their opposite conclusions. Here, the parent revoked consent for IDEA services and simultaneously requested “technology that would assist the plaintiff in hearing in the classroom.” The court held that the parent neither waived nor forfeited the right to that technology. This is an important decision. If you encounter this situation, contact your school’s attorney for an individual analysis. Shouldn’t the school try 504 first, before special ed under IDEA? Not necessarily. We think if the school 1) suspects a disability and 2) suspects a need for specially designed instruction, the school should seek consent to do an IDEA evaluation. Child find is a basic requirement under IDEA. The school district has the legal duty to locate, identify and evaluate every eligible student. The school district must have procedures in place so that kids experiencing difficulty will be referred for evaluation as appropriate. If it is later determined that the student met IDEA eligibility criteria, and yet, has not been served under IDEA, the district will have some legal problems. Districts can be held liable for what they should have known and should have done. If the student should have been served under IDEA was not, the district is vulnerable. Serving such students under 504/ADA does not remove that vulnerability. In a 1996 case, the Eighth Circuit ruled that the school cannot ignore IDEA eligibility and identify the student under 504 instead. The Court put it this way: © Walsh Anderson 2014 Page 13 of 18 Although an individual who is eligible for services under IDEA may also qualify for assistance under the Rehabilitation Act of 1973, the school district must comply with both statutes . . . . Under the statutory scheme, the school district is not free to choose which statute it prefers. Yankton School District v. Schramm, 93 F.3d 1369, 24 IDELR 704 (8th Cir. 1996). Consistent with the Eighth Circuit, the Second Circuit has ruled that a school district’s offer of a 504 accommodation plan was not an adequate substitute for an IEP under the IDEA. In that case, the parents were awarded reimbursement for expenses incurred in unilaterally placing their daughter in a residential facility as a result of the school district’s failure to identify the child as ED under the IDEA. The Court had this to say: [T]he District’s proposed accommodation plan under Section 504 of the Rehabilitation Act cannot be considered appropriate in light of Treena’s needs. The district court properly concluded that she was entitled to benefits under the IDEA. Hence, the District should have devised an IEP to meet Treena’s unique needs in compliance with the provisions of the IDEA, and its proposed plan under Section 504 of the Rehabilitation Act was not an adequate substitute. Muller v. Committee on Special Education of the East Islip Union Free School District, 145 F.3d 95, 28 IDELR 188 (2d Cir. 1998). There is a Tenth Circuit decision to the same effect. The case involved a student who was served under 504. As you can see from the quote below, he could have been served under IDEA. As a result, he should have made his claim under IDEA: The fact that Scottie has not been identified under the IDEA does not mean that relief for his claims is unavailable under the statute. He suffers from Epstein‐Barr virus, which his doctor described as similar to mononucleosis, and which causes him ‘debilitating fatigue’ if he sustains activity for even a short amount of time. This condition has not improved from fifth‐grade to eleventh‐grade, requiring him to receive homebound services for those years. He thus appears to be eligible under the IDEA as having an ‘[o]ther health impairment,’ which the statute's regulations define as having ‘limited strength [or] vitality . . . that [i]s due to chronic or acute health problems . . . and [a]dversely affects a child's educational performance.’ 34 C.F.R. § 300.7(c)(9)(i)‐(ii). Appellant has not demonstrated that Scottie is ineligible under the IDEA, and Appellant states in her briefs that he ‘has never been assessed [for IDEA eligibility].’ Therefore, Appellant could have filed a complaint with the school district pertaining to his identification or evaluation under the statute, and then utilized the IDEA's procedural machinery to address the alleged deficiencies in the provision of his FAPE. Cudjoe v. Independent Sch. Dist. No. 12, 297 F.3d 1058, 37 IDELR 91 (10th Cir. 2002). © Walsh Anderson 2014 Page 14 of 18 We take all this authority to mean that kids who might meet eligibility under IDEA should be considered for services under IDEA. If (1) the major life activity we are concerned about is “learning” and (2) the student is showing signs of a possible disability, you have a student who may be eligible under both IDEA and 504/ADA. Remember, special education eligibility is based on a need for specially designed instruction, including specially designed instruction in nonacademic skills (behavior, daily living skills, communication, social skills, organizational skills, etc.). The cases cited above clearly tell us that IDEA is the preferred route. This is likely due to the fact that courts view IDEA as conferring greater benefits. 504 and the ADA are non‐
discrimination statutes. As unfunded civil rights statutes, they can do nothing more than prohibit discrimination. This was observed by U.S. Supreme Court in the first 504 case ever to be considered by the Court: If these regulations were to require substantial adjustments in existing programs beyond those necessary to eliminate discrimination against otherwise qualified individuals, they would do more than clarify the meaning of § 504. Instead, they would constitute an unauthorized extension of the obligations imposed by that statute. Southeastern Community College v. Davis, 99 S.Ct. 2361 (1979). IDEA, on the other hand, is a statute that provides funding to states that agree to comply with its requirements. This means that Congress can require more than equal protection or non‐
discrimination. As the Tenth Circuit explains: [S]ection 504 is prohibitory, forbidding exclusions from federally‐funded programs on the basis of handicap, rather than mandatory, creating affirmative obligations. [Cite omitted]. The EAHCA [now IDEA], by contrast, because of its focus on appropriate education, imposes affirmative duties regarding the content of the programs that must be provided to the handicapped. Because Section 504 forbids exclusion from programs rather than prescribing the programs’ content it reaches grosser kinds of misconduct than the EAHCA. Timms v. Metropolitan School District of Wabash County, Indiana, 722 F.2d 1310 (7th Cir. 1983). What’s the downside to identifying a student under 504 when that’s what the parents want? There is no problem with doing this when the student meets eligibility criteria under 504. But there are significant problems with labeling a student “504” when the student does not meet the legal criteria. This will lead to an over‐identification of students under 504/ADA. For each identified student, the school must 1) conduct evaluations from time to time; 2) comply with procedural safeguards; 3) maintain paperwork to demonstrate compliance; 4) conduct 504/ADA Committee meetings prior to any significant change of placement; and 5) conduct manifestation determinations prior to certain disciplinary actions. For each such student, the school opens the door to charges of non‐compliance, due process hearings, and suits for damages. The school receives no federal or state funding to assist with these burdens. © Walsh Anderson 2014 Page 15 of 18 An even bigger problem: oftentimes when schools do this, they fail to follow through after the initial identification. Thus we may find that we have a student who has been officially identified by the district as needing 504 services, and yet, no services are being provided. That’s a lawsuit waiting to happen. Remember to provide written notice of a proposal to evaluate for special education even if the parents decline to provide consent for the evaluation. The IDEA implementing regulations require the district to provide written notice to the parents a reasonable time before the district proposes or refuses initiations or changes to the student’s identification, evaluation, educational placement, or the provision of FAPE. 34 C.F.R. §300.503. The notice “must include: (1) A description of the action proposed or refused by the agency; (2) An explanation of why the agency proposes or refuses to take the action; (3) A description of each evaluation procedure, assessment, record, or report the agency used as a basis for the proposed or refused action; (4) A statement that the parents of a child with a disability have protection under the procedural safeguards of this part and, if this notice is not an initial referral for evaluation, the means by which a copy of a description of the procedural safeguards can be obtained; (5) Sources for parents to contact to obtain assistance in understanding the provisions of this part; (6) A description of other options that the IEP Team considered and the reasons why those options were rejected; and (7) A description of other factors that are relevant to the agency’s proposal or refusal.” 34 C.F.R. §300.503(b). Note: Your special education department maintains the forms for written notice of proposal to evaluate. Procedural Safeguards: 34 C.F.R. 300.504 requires the provision of a copy of the procedural safeguards to the parents upon initial referral or parent request for evaluation. 504 HEARINGS Key Point: Know what policy to use when a parent makes a complaint or requests a hearing. Impartial hearings are available when parent appeals from the decision of the 504 Team. Local policies govern other complaints. © Walsh Anderson 2014 Page 16 of 18 Most school districts in Texas have adopted policies as promulgated and recommended by the TASB. The policies designated as “LEGAL” are not technically adopted by the local board as policy. Instead, the intent of the LEGAL portion of the policies is to spell out in one location the various laws and regulations pertinent to the topic. Thus the LEGAL portion of the policy manual is more of a reference guide than a statement of policy choices by the local school board. The LOCAL policies are adopted by the local school board. Below are the most common policies adopted by Texas school districts with regard to hearings and complaints under Section 504. FB LEGAL FB LEGAL lays out the basic requirements of non‐discrimination based on race, religion, color, sex, national origin or disability. With regard to disability‐based discrimination these include:  The naming of an individual “to coordinate its efforts” to comply with Section 504 and the ADA. In most districts, this person is referred to as “the 504 Coordinator.” Many districts also have 504 Coordinators for each campus.  A requirement that the district adopt and publish grievance procedures for prompt and equitable resolution of student complaints alleging discrimination under these statutes.  A requirement that there be no retaliation against a person who asserts rights protected by the ADA/504 or who cooperates in an investigation. FB LOCAL As adopted by most school districts, FB LOCAL includes the following:  The name and contact information for the district’s 504 Coordinator.  The creation of a “Section 504 Committee” comprised of at least two people.  A requirement that the 504 Coordinator and members of the Section 504 Committee receive training about the procedures and requirements for serving students.  Procedures for referral of students, evaluation, placement, parent consent, 504 hearings and modifications on state mandated tests. FNG LEGAL FNG LEGAL sets out the requirement that districts that receive federal financial assistance, or employ 15 or more persons adopt “grievance procedures that incorporate appropriate due process standards and that provide for the prompt and equitable resolution of complaints” alleging any violations of Section 504. © Walsh Anderson 2014 Page 17 of 18 FNG LOCAL FNG LOCAL is the policy pertaining to student and parent complaints and grievances. However, as adopted by most school districts in Texas, FNG LOCAL excludes complaints and grievances of disability discrimination, harassment or retaliation. The most typical version of the policy says: This policy shall not apply to: 1. Complaints alleging discrimination or harassment based on race, color, gender, national origin, disability or religion. [See FFH]. ……. 8. Complaints concerning identification, evaluation, or educational placement of a student with a disability within the scope of Section 504. [See FB]. Thus FNG LOCAL is not the starting point for a parent or student complaint under Section 504/ADA. However, as noted below, if the parent or student is dissatisfied with the district’s disposition of a complaint filed under FFH LOCAL, they can then make an appeal under FNG LOCAL. FFH LOCAL FFH LOCAL, as adopted by most districts in Texas addresses discrimination, harassment, and retaliation involving students. The policy calls for complaints to be reported to a district official. The district then conducts an investigation, issues a report, and takes corrective action if need be. If the parent or student is dissatisfied with the outcome of the investigation he or she may then file an appeal under FNG LOCAL. FB LOCAL FB LOCAL is the applicable policy for a “504 Hearing.” FNG LOCAL defers to FB LOCAL for complaints about the “identification, evaluation, or educational placement of a student with a disability within the scope of Section 504.” This language is drawn from the federal regulations that require “procedural safeguards” for parents of students with disabilities, including the right to an “impartial hearing.” Thus hearings under FB LOCAL must be conducted in accordance with the federal regulations, which means that they must be conducted by someone not employed by the district. FFH LOCAL, on the other hand, deals with more general complaints of discrimination, harassment or retaliation. These can be handled internally by district officials. If the parent is not satisfied with the outcome, the parent can then appeal pursuant to FNG LOCAL, again through internal district personnel. *The information in this handout was created by Walsh, Anderson, Gallegos, Green and Treviño, P.C. It is intended to be used for general information only and is not to be considered specific legal advice. If specific legal advice is sought, consult an attorney. © Walsh Anderson 2014 Page 18 of 18