Differences & Distinctions:504s v. IEPs

Amy Vatner, Esq.SPED*NET Wilton

June 4. 2013

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Legal Background Section 504 & Public Schools Overview Referral, Evaluation, & Eligibility

Determination 504 Plan & Placement Procedural Safeguards IDEA vs. 504

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Training Agenda

Legal Background

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What is Section 504?

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Part of the Rehabilitation Act of 1973

National civil rights law, not and education statute

Prohibits discrimination on the basis of disability by any program or activity (including schools, health care housing, postsecondary education) that receives federal financial assistance

“No otherwise qualified individual with a disability in the United States shall, solely by reason of her or his disability,

be excluded from the participation in, be denied the benefits of, or be subjected to discrimination

under any program or activity receiving Federal financial assistance”

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What Section 504 Says

IDEA is a Dept. of Education statute, not civil rights Both may provide services and protections to

students with disabilities Laws have different definitions of “disability” 504 is not a funding statute IDEA is a funding statute – federal and state

allocations

*Individuals with Disabilities Education Act6

Related Laws:IDEA* and Section 504

ADAAA prohibits discrimination of people with disabilities by: All qualifying private employers (Title I) All state and local government programs, including the public schools

(Title II), and All places of public accommodation, including non-religiously

controlled colleges and universities and test agencies (Title III) Section 504 preceded enactment of ADAAA and has generally

been used as basis for disability discrimination protection in schools

Courts and Office of Civil Rights (OCR) have interpreted laws consistently

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Related Laws: Section 504 & Americans with Disabilities Act

Amendments Act (ADAAA) of 2008

ADA Amendments Act of 2008 (ADAAA)

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ADAAA requires that definition of disability be interpreted broadly

OCR enforces Section 504 regulations consistently with the ADA, so the new definition of disability in the ADAAA must be used when determining Section 504 eligibility

Does the student:

have a physical or mental impairment* which substantially limits one or more major life activities?

*or has a record of having an impairment or is regarded as having an impairment

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Person with a Disability: ADAAA/504 Definition

Any physiological condition that affects a bodily system, or any mental or psychological disorder

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504/ADAAA Disability Definition Part 1:

Impairment

No litmus test for what “substantially limits means”

More than material limitation but less than severe limitation (Look to condition, manner,

duration) Mitigating measures may not be considered

(medication) Includes substantially limiting impairments

that may be episodic or go into remission11

504/ADAAA Disability Definition Part 2:

Substantial Limitation

504/ADAAA Disability Definition Part 3:

Major Life Activity

Section 504

Caring for oneself Performing manual tasks Walking Seeing Hearing Speaking Breathing Learning Working

Added by ADAAA Eating Sleeping Standing Lifting Bending Reading Concentrating Thinking Communicating

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Additional Major Life Activities

(Bodily Functions)

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Brain Circulatory Endocrine Reproductive Neurological

Immune system Normal cell growth Digestive Bowel Bladder Respiratory

Section 504 and Public Schools

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If a student has an IEP, she is covered by the IDEA & receiving special ed services

If a student has 504 plan, there are no special ed services

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IDEA vs 504: Big Picture reminders

Intent of civil rights laws is to provide equal opportunity and prevent discrimination based on disability – THINK “leveling the playing field”

Public schools must provide FAPE (free appropriate public education) to each qualified student with a disability

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Section 504 and Public Schools

Overview: The 504 Process

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Referral Evaluation Eligibility

Determination Development of

504 Plan Review Reevaluation

Districts: Have “child find” obligation to evaluate students who they suspect may have a disability

Parents: May want to consider 504 evaluation if their child did not qualify for services under IDEA but has shown a pattern of not succeeding in the general education classroom or has a diagnosis and needs accommodations to fully participate in school activities

Anyone may refer, but parents must CONSENT to eval

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Referral for evaluation

Does the student have a disability under Section 504?

If so, what are the student’s individual education needs?

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Purpose of Evaluation

Use valid tests conducted by trained personnel

Assess all areas of educational need Accurately reflect achievement rather than

disability Be completed in a reasonable amount of

time Include process for periodic reevaluation

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Section 504 Evaluation Requirements

Medical diagnosis is not needed for Section 504 eligibility (team can make placement without it)

If 504 placement team determines a diagnosis is required, the evaluation must be conducted at no cost to the parents

If a child does have a medical diagnosis, it does not automatically qualify the student for 504 services

Look at IMPACT and not DIAGNOSIS

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Medical Diagnosis and 504

Student has a diagnosis from an outside clinician. Is student entitled to a 504 plan on this basis alone?

Question: Outside diagnosis

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Student has no formal diagnosis, but is struggling in school, has severe problems staying focused in class. Can the student receive a 504 plan without a formal diagnosis?

Question: No diagnosis, but problems

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People who: are knowledgeable about the student, can interpret data, and know the placement options

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504 Team

Might include:•Principal•Social Worker•Counselor•Psychologist•Nurse•Other School Staff•Parent (not required as under IDEA!)

The team must consider all factors affecting a student’s ability to receive FAPE:Evaluation data (aptitude and achievement tests)Teacher recommendationsPhysical conditionChild’s social & cultural backgroundAdaptive behaviorOther sources of information (parents, doctors, etc.)

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Determining 504 Eligibility

More than just the physical setting Plan describes all modifications and

accommodations to be provided to meet student’s individual needs

Written plan is not required, but is considered good practice (AND YOU SHOULD DEMAND IT!!)

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Placement

Description of the disability How disability addressed in the school List of accommodations/modifications and

services Names of teachers who will put plan into effect

Remember, the plan doesn’t have to grant everything, it’s about leveling the playing field and the school has some defenses it can claim

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What’s in the 504 Plan

Examples include:Removal of physical barriersExtended time for testingAdjustment of class scheduleRest periodsUse of aids (calculators, recorders, notetakers, modified textbooks, etc.)Individualized homework assignments

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Accommodation & Modifications

Work with student to figure out the 3-5 most important things that could change about his/her school day

Parent or provider can have this conversation

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Sit down with student and have a meaningful conversation

Physical therapy Counseling, psychological, or social work services Assistive technology Speech & language services Occupational therapy Medical Services Staff training

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Related Services: DON’T let them tell you services

aren’t part of 504!!

Required:

“Periodically” (not defined in 504, may use IDEA timelines)

Before changing placement (includes education setting or significant change in service level)

Suspension of more than 10 days

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Reevaluation

Procedural Safeguards

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Ensure parents are properly notified regarding their children’s education

Provide process for parents to disagree with school’s decision

Require districts to review their own compliance with Section 504 requirements

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Procedural Safeguards

U.S. Department of Education Office of Civil Rights complaint (must be filed within 180 days)

Legal action in Federal Court

General grievance with District-designated 504 Coordinator

Impartial Hearing for disagreements over identification, evaluation & placement only (not the 504 plan itself!)

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4 Dispute Resolution Options

School Districts must:

establish grievance procedures for resolving complaints

designate a 504 Coordinator to ensure compliance

inform parents and students about the grievance process

AGAIN – this is for more general complaints of discrimination (including access to programs)

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504 Coordinator and Grievance Procedures

Districts may not retaliate against individuals for: asserting rights under 504 opposing disability discriminationparticipating in a complaint process or hearing

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No Retaliation

IDEA vs. 504

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IDEA/504 Diagram

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All Studen

ts

Students with disabilities

504-eligibl

e studen

ts

IDEA-eligibl

e studen

ts

Section 504

IDEA

Funding? No Federal & State

Eligibility Determination

General disability definition

Disability categories & need for special education and related services

Evaluations Initial & “periodic”

Initial & triannual

FAPE Needs met as adequately as those without disabilities

Individualized educational program from which child receives educational benefit

Plan 504 Plan IEP in writing

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Side-by-Side Comparison

After High School

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Who must comply?

Section 504: recipients of Federal fundsADA:

Private employers (Title I) All state and local government programs (Title II) Public accommodations, including non-religiously

controlled colleges and universities and test agencies (Title III)

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General Overview: Section 504 and ADAAA

After a student graduates high school or turns 21, IDEA no longer applies

With a 504, student still must self-advocate with postsecondary institution

Legal obligations of employers and postsecondary institutions are very different from K-12 public schools

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There are No IEPs after High School, but waiving a 504 isn’t

magic either

Services are not received by entitlement

Students must request and demonstrate eligibility – there are no child find obligations anymore

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Self-Advocacy is Critical

Cannot deny admission to qualified (academic and technical standards) students on basis of disability

Must make necessary changes to policies and procedures (academic adjustments such as substitution of courses, classroom accommodations, or waiving full-time financial aid requirements for students who must take fewer courses at a time)

Must ensure student is not discriminated against because of absence of needed auxiliary aids (i.e. notetakers, interpreters, audio text)

Not required to provide personal accommodations (attendants, devices for personal use, etc.) nor fundamentally alter a program

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Postsecondary Institutions & 504

IDEA or 504 services in high school do not guarantee eligibility for accommodations in postsecondary education (colleges entitled to make own determination!)

Student must self-identify and provide documentation of disability

Must be qualified student: meet the academic and technical standards for admission

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College Eligibility Determination

College Responsibility:Set reasonable standards for documentation and specify how much documentation is needed Use an “interactive process” to determine appropriate

academic adjustments and auxiliary aids and services that meet the student’s individual needs

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Disability Documentation

Student Responsibility:•Assessment to identify disability and functional limitations and need for academic adjustment or auxiliary aids or services

High School CollegeEligibility Determination

Evaluation conducted or paid by school district

Documentation supplied by student

Legal Responsibility

Provide FAPE Ensure non-discrimination

Procedural Safeguards

Due process or OCR complaint

Internal grievance or OCR complaint

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Side-by-Side Comparison

Contact the college’s disability or student services office and ask what their procedures are for requesting accommodations or auxiliary aides

Provide a copy of documentation of disability and need for academic adjustment or auxiliary aid or service

Utilize summary of performance required under IDEA Put any requests in writing as soon as possible! Remember that it is the student’s responsibility to follow

the procedures Communicate and work cooperatively

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Tips for a Smooth Transition

ADA Amendments Act of 2009 Section 504, Title II, and Students with Disabilities in Public Schools (OCR) The 411 on Disability Disclosure Workbook (National Collaborative on Workforce and

Disability) Section 504 of the Rehabilitation Act of 1973 Regulations Transition of Students with Disabilities to Postsecondary Education: A Guide for High Schoo

l Educators (OCR)

Free Appropriate Public Education for Students with Disabilities: Requirements under Section 504 of the Rehabilitation Act of 1973 (OCR)

OCR Complaint Processing Procedures Frequently Asked Questions About Section 504 and the Education of Children with Disabiliti

es (OCR)

Academic Adjustments & Auxiliary Aids & Documentation (OCR) Students with Disabilities: High School to College (OCR) Commonly Asked Questions About Child Care Centers and the Americans with Disabilities

Act (DOJ)

Americans with Disabilities Act Questions and Answers (EEOC)

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References

http://www2.ed.gov/about/offices/list/ocr/index.html

National OCR Headquarters: 800-421-3481

Boston regional OCR office: (617) 289-0111

Complaint Information:http://www2.ed.gov/about/offices/list/ocr/qa-complaints.html

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Office for Civil Rights

Amy Vatner, Esq.Alyce Alfano, Esq.

Alfano Education Law Groupwww. alfanoedlaw.com

(860) 313-500551

Contact Information