Division of Exceptional Student Education and Student Support

Miami-Dade County Public Schools

Rationale

▪ Section 504 of the Rehabilitation Act of 1973 protects students with disabilities

▪ Students in programs receiving federal dollars are guaranteed certain protections

▪ As we receive federal dollars, it is incumbent upon the District to enforce these protections

▪ Individuals may be personally liable for purposely discriminating against a student

Section 504 Overview and Discrimination Examples

Legal Obligations Referral Evaluation Eligibility Accommodation Plan Common Errors

Section 504 of the Rehabilitation Act of 1973 protects students with disabilities and defines a person with a disability as any person

▪ who has a physical or mental impairment that substantially limits one or more major life activity (Prong 1),

▪ has a record of such impairment (Prong 2),

▪ or is regarded as having an impairment (Prong 3).

As applied to public schools, Section 504 broadly prohibits discrimination of students with disabilities by guaranteeing their right of full participation and access to a free appropriate public education. Schools are required to provide services that will “level the playing field” to allow students with disabilities full participation and opportunity for benefit.

The following two slides provide examples of discrimination against students with disabilities

What are some of the examples from your own experience?

Denying credit to a student whose excused absenteeism is related to his/her disabling condition.

Expelling a student and denying access for behavior caused by his/her disability.

Refusing to dispense medication to a student who could not attend school otherwise.

Disallowing participation in a science laboratory activity / class because the lab stations are not accessible.

Refusing to provide amplification for a student with a hearing impairment in a lecture hall despite an accommodation plan requiring additional amplification.

Prohibiting field trip/extracurricular activities participation when reasonable accommodations can be made.

Other laws have been enacted to also protect the rights of students with disabilities

Many of the same provisions-FAPE, plan documentation, procedural safeguards-may be found in the Individuals with Disabilities Education Act (IDEA)

Fundamental difference is that IDEA is an affirmative entitlement for evaluation, eligibility, specialized instruction and related services, whereas Section 504 is a prohibition against discrimination

Section 504 seeks to remove barriers to discrimination

Section 504 has a “intentional discrimination” standard that can be proven by showing deliberate indifference to a student’s disabling condition

Any student qualifying for IDEA is protected under Section 504 and does not require a separate Section 504 plan as the Individual Education Plan (IEP) will meet the plan requirement for Section 504

IDEA SECTION 504

TYPE OF LEGISLATION Funding Act Civil Rights Act

ORIGINAL PASSAGE 1975 1973

CO VERAGE Students PK-12 PK-Post Secondary

FAPE Yes Yes

ADMIN. AGENCY OSEP, SEAs OCR, SEAs

ELGIBILITY DEFINITION Two Essential Elements:1. Listed classification2. Need for Special

Education

Three Essential Elements:1. Impairment2. Major Life Activity3. Substantial Limitation

Ramirez v. District of Columbia, 32 IDELR 87 (D.D.C. 2000)

▪ Parents of 9 year old with cerebral palsy sued district under ADA and Section 504 claiming that school had failed to provide child with proper access to bathroom

▪ Student could not maneuver wheelchair through doorway to restroom and either crawled on the floor or had to be carried

▪ District court ruled that district failed to provide child with proper access and that carrying student was an ineffective and unacceptable method of providing access

▪ Court held that district was required to comply with minimal architectural standards and determined that it had failed to do so

▪ Basis of decision: There is a general preference for independent movement over personal assistance to the extent that it is possible.

Student with autism on a 504 plan was required to take and pass a statewide assessment examination in order to receive a standard HS diploma. The student did not meet the examination standards.

OCR concluded no violation as the student was given an opportunity to learn the material and skills required for the assessment and was also provided with accommodations during assessment.

The district did not discriminate against the student because His teacher gave lessons that followed state guidelines for the

assessment, including strategies for the writing process, multiple choice section and grammar section.

Additionally, the student was provided with various testing accommodations and

Had at least two more chances to pass the assessment.

What it means – 504 does not prevent education agencies from establishing general diploma and graduation requirements that are applicable to students with disabilities and nondisabled students

Generally, when a parent, teacher, or other member of the school staff raises a concern about a student’s unique need for special help, a meeting should be requested to consider whether the student has such a disability under Section 504.

If the team determines that the student does have such a disability that substantially limits a major life activity, they will then identify what types of support or accommodations are appropriate to meet the student’s needs and write a Section 504 Plan if required

The district must comply with very specific Section 504 requirements since we receive federal financial assistance.

These legal obligations apply to all students within the age range served by the district.

Conduct appropriate initial evaluations Evaluations include review of all student

records Establish standards and procedures for the

identification and evaluation process Conduct periodic reevaluations of students

with disabilities

Provide FAPE through the provision of a Section 504 plan to meet the individual educational needs of eligible students as adequately as the needs of nondisabled students are met (“leveling the playing field”).

Provide education to students with disabilities in the least restrictive environment (LRE).

▪ Generally means the general education environment when a student does not demonstrate a need for supplementary aids and services in order to achieve satisfactorily.

Provide students with disabilities equal access to nonacademic and/or extracurricular activities

▪ Includes providing equal opportunity in areas such as counseling, physical recreational athletics, transportation, health services, recreational activities, special interest groups or clubs, field trips, referrals to other agencies, and employment

Establish and implement a system of procedural safeguards regarding the identification, evaluation, placement, or provision of FAPE to a student

Ensure behavior is not a manifestation of a student’s disability during disciplinary proceedings

Provide transportation under specific individual circumstances and conditions

Provide equal access to parents who may have a disability

To be equally effective, aids, benefits, and services do not have to produce identical results, but must afford equal opportunity to obtain the same results in the most integrated setting appropriate.

Good grades are not the only factor required to consider in determining whether a student with a disability needs reasonable accommodations to level the playing field.

School Board of Miami-Dade County 2260.01

▪ Students experiencing difficulty in the classroom should initially be referred to the School Support Team.

▪ The SST shall determine whether it is appropriate to refer the student for possible 504 eligibility/services.

▪ Students with obvious physical or health needs that require accommodations need not go through the SST process to be referred for Section 504 eligibility determination

Parent or school-based team initiates a request based on

▪ Suspicion a student may have a disability

▪ Documentation of physical or mental impairment

▪ A student exhibits chronic health condition

▪ Persistent academic, learning, or behavioral problems

▪ Behaviors that result in suspension or expulsion when behavior management has been ineffective

▪ Failure to demonstrate sufficient improvement with evidence-based interventions implemented with fidelity

▪ A student is evaluated but ineligible under IDEA (not an automatic consideration)

In most circumstances, a request for evaluation from the parent or a school-based team triggers the obligation to evaluate a student for problems related to a suspected disability

Provision of interventions through a multi-tiered system of supports does not supplant the district’s responsibility to evaluate under Section 504

If the school suspects that the student might be eligible under IDEA, then an evaluation that meets IDEA standard should be conducted

If upon parent request for a Section 504 evaluation, the team determines that an evaluation is not required, the school must provide a refusal to evaluate and provide the parents with their procedural safeguards.

Team includes staff knowledgeable about the student, the evaluation(s) and the accommodations. Required members are:▪ Staffing Specialist

▪ 504 Coordinator

▪ Teacher

▪ Parent, and,

▪ Student as age appropriate

Schools must identify person in the role of 504 Coordinator (generally the Assistant Principal or designee)

Teacher, front office staff and support staff should know the name of the 504 Coordinator to appropriately refer parents

Team may include the following personnel:

▪ General and Special Education Teachers

▪ Behavior Management Teachers

▪ School Counselors

▪ Administrators

▪ School Psychologist

OCR – Recommends districts to obtain parental consent for initial evaluation

Consent should be obtained at beginning of meeting (or during SST) since all data discussed will be used in determining Section 504 eligibility

Evaluation must be sufficient to provide information to determine the existence of a disability

504 Team determines what data is necessary If additional data is required, the team may request

and indicate on the parental consent form

May require less complex data when making decision for a temporary impairment

If the Section 504 Team believes that the student with a disability may need special education, a special education referral should be initiated

Team members should consider all student records and information about student that is readily available

504 Team must draw from a variety of sources:

504 Team must draw from a variety of sources:

▪ May include a formal assessment

▪ District / State / Achievement Assessments

▪ Report Card Grades

▪ Teacher and Parent Observations

▪ Classroom Performance / Portfolio

▪ FAB / BIP

▪ Medical Information (not required to be on Form #1920)

▪ Adaptive Behavior

▪ RtI/MTSS data

▪ Other

The evaluation should include sufficient information to determine

▪ 1) the physical or mental impairment at issue

▪ 2) the major life activity(ies) or bodily function(s) impacted by the impairment, and,

▪ 3) if the impairment substantially limits the major life activity(ies)

A student may be eligible as a student with a disability under Section 504 if

▪ they have a physical or mental impairment that substantially limits one or more major life activity (Prong 1),

▪ have a record of such impairment (Prong 2),

▪ or is regarded as having an impairment (Prong 3).

Prong 1 – Current Impairment that Substantially Limits a Major Life Activity

▪ Physical or Mental Impairment

▪ Temporary Impairments

▪ Impairments That Are Episodic

▪ Impairments That Are In Remission

Age and conditions resulting from cultural, environmental, or economic factors are notconsidered disabilities under Section 504

Any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems:

Neurological Genito-Urinary Musculoskeletal Hemic / Lymphatic Special sense organs Skin Respiratory Endocrine Speech Organs Cardiovascular Digestive Lymphatic Reproductive

Any mental or psychological disorder such as

▪ Mental Retardation

▪ Organic Brain Syndrome

▪ Emotional Illness

▪ Mental Illness

▪ Specific Learning Disabilities

A Temporary Impairment is an impairment with an actual or expected duration of 6 months or less

Case by case basis, considering both the duration and the extent to which it actually limits a major life activity

Students with Temporary Impairments are ineligible for the McKay Scholarship

Temporary Impairment must be indicated on a 504 Plan

An impairment that is episodic is a disability if it would substantially limit a major life activity when active.

Cannot deny eligibility simply because the disability may ebb and flow in severity.

▪ Allergies

▪ Asthma

▪ Migraines

▪ Cystic Fibrosis

▪ Auto-immune disorders

▪ Sickle-Cell

An impairment that is in remission is a disability if it would substantially limit a major life activity when active.

Requires the Section 504 Team to look back at the time when the impairment was not in remission rather than current data.

▪ Cancer

After it is established that the student has a current physical or mental impairment, they must determine if a major life activity or bodily function is impacted and to what degree the impairment limits the activity.

Students are protected from discrimination under Section 504 and may be entitled to FAPE via a Section 504 plan if one is deemed necessary by the Section 504 team

MAJOR LIFE ACTIVITY

Caring for Oneself Walking Seeing

Hearing Speaking Breathing

Learning Working Performing Manual Tasks

Eating Standing Lifting

Bending Reading Concentrating

Concentrating Thinking Sleeping

Major Bodily Functions Immune System Normal Cell Growth

Digestive Bowel Bladder

Neurological Brain Respiratory

Circulatory Endocrine Reproductive Functions

No operational definition of “substantially limits”. Each educational agency should make its own determination of what the phrase means as long as it is less onerous than the “significantly restricted” definition that Congress rejected in the ADAAA.

Condition, manner, or duration under which the average student of the same age / grade level in the general population can perform the same life activity

An impairment alone is not a disability Webster Definition of Substantial includes:

▪ Real, true

▪ Important, essential

▪ Considerable in quantity

▪ Significantly great

Mitigating Measures are services or things provided to the student or used by the student to decrease the impact of the impairment.

▪ Substantial limitation must be determined without regard to the ameliorative effects of mitigating measures Must screen out the positive impact of mitigating measures

▪ Decisions shall be made without regard to the ameliorative effects of mitigating measures :

▪ Medication Hearing Aids

▪ Cochlear Implants Mobility Devices

▪ Prosthetics Assistive Technology

▪ Oxygen Equipment

▪ Assistive Technology

▪ Low Vision Devices (except eyeglasses/contact lenses)

▪ Reasonable Accommodations

Individuals with a history or record of a physical or mental impairment that substantially limits one or more of the individual’s major life activities are also protected from discrimination under Section 504

▪ May create eligibility for students who have no current need for accommodation plans

▪ Students staffed out of special education should be reviewed for Section 504 on a case-by-case basis

Regarded as having a physical or mental impairment when in fact such impairment may or may not actually exist are protected from discrimination under Section 504.

▪ Misclassification ELL

Students are protected under 504 even though they are not individuals with a current substantial disability for which accommodations may be necessary and therefore would not require a 504 Accommodation Plan.

All eligible Section 504 students receive a copy of their Procedural Safeguards.

DiscriminationProtection

Disciplinary Safeguards

Section 504 Plan

Disability that substantially limits and requiresservices

X X X

Disability that substantially limits

X X

Disability that does not substantiallylimit

X

Record of disability X

Regarded as having a disability

X

Student does not have to demonstrate need for services to be Section 504 eligible.

▪ If the student developed a need at a later time, the Section 504 team would create an appropriate plan.

▪ Includes students whose current use of mitigating measures meets his/her needs as adequately as a nondisabled student.

Section 504 eligible students without a Section 504 Plan still receive procedural safeguards, manifestation determination, periodic re-evaluation , and non-discriminatory practices.

Assemble 504 team Obtain parental consent Conduct evaluation Provide notice of eligibility meeting Identify specific physical or mental impairment Identify the major life activity or bodily function

impacted by impairment Verify substantial limitation Determine eligibility Determine if student needs a plan to meet needs as

adequately as the needs of nondisabled peers are met

Intervention Should Not be Confused with Accommodation

Intervention Teaches, Remediates, and Reinforces Accommodation Removes Barriers to Accessing

Education and Need is Based on the Functional Relationship of the Disability-Produced Barrier to Access

Example: ADHD

▪ Intervention- Self Monitoring with Positive Reinforcement

▪ Accommodations- Teacher monitoring of agenda, frequent breaks during testing, guided notes

SPED Usually Provides Both

If it is determined a student is eligible under Section 504 and in need of services and accommodations in order to have his/her educational needs met as adequately as those of nondisabled peers, a written Section 504 plan is developed.

Best practice suggests a plan addresses

▪ The educational impact of the identified disability, and,

▪ The services and accommodations necessary to facilitate equal access to education in the least restrictive environment.

Plan development

▪ Information must be obtained from multiple sources, parents should be invited and encouraged to assist in the plan development

▪ Services and accommodations are based on information and data obtained during evaluation and eligibility process and addresses the student’s identified disability and need to receive services to ensure student’s educational needs are met as adequately as those of nondisabled peers

▪ Accommodations should be based on objective, measurable data

▪ Should indicate how, where and by whom the services and accommodations will be provided

▪ Ability to implement accommodations in each setting must be considered under reasonableness determination

▪ May include self-management of health concerns in school setting or school sponsored events

▪ May include services/accommodations for

▪ Physical environment of school building and classroom, or transportation

▪ Administrative adjustments

▪ Academic or instructional▪ Materials

▪ Methods

▪ Assignments/Home Learning

▪ Behavioral intervention

▪ Testing accommodations

▪ Plan should indicate whether it is an initial plan, a revised plan or continuation of an existing plan

▪ Monitoring system should be developed and responsibilities assigned for implementation

▪ Copies of the plan should be distributed to parents, teachers, and any responsible parties and one placed in the student’s cumulative record.

Student identified as disabled under Section 504 should be provided the same types of accommodations for both classroom assignments and assessments. If student needs additional time to complete assignments and tests, he or she should also have extended time for classroom tests and standardized tests (if allowable).

Related Services May Include

▪ Occupational Therapy

▪ Physical Therapy

▪ Nursing Services

▪ Classroom Assistance

▪ Transportation

▪ Medication Administration

▪ Counseling

Common Errors in the Development and Implementation of a Section 504 Plan

▪ Using a predetermined checklist and checking accommodations or services that are not necessary to ensure Section 504 FAPE

▪ Failing to match services and accommodations with student needs

▪ Failing to provide copies and an explanation of the Section 504 plan to everyone responsible for implementation

▪ Writing vague plans

▪ Providing minimal or no monitoring of the implementation of the plan

▪ Failing to get school administration involved with monitoring of Section 504 plan implementation

▪ Developing a Section 504 plan for a student with an IEP

District Procedure – for Annual Review of Section 504 Accommodation Plans

▪ Major Life Activity

▪ Review student progress

▪ Review delivery of services

▪ Frequency

▪ Outcome

▪ Accommodations – Additions, deletions, revisions

▪ Need for continuation must be based on current documentation

Periodic Triennial Reevaluation – Does not require a comprehensive evaluation

▪ Before any significant change in placement

▪ Expulsion or repeated suspensions which exceed 10 days in school year

▪ Manifestation Determination – FM 3918

▪ May consider other strategies, interventions or assessments

▪ Change in delivery of education

▪ At the request of the parent or school

Parents who have a disagreement involving Section 504 are entitled to the following grievance procedures

▪ Appeal District Section 504 Compliance Officer

1500 Biscayne Blvd., Suite 407

Miami, FL 33132

▪ Request Mediation or a HearingClerk of the Board

1450 NE Second Avenue, Suite 268B

Miami, FL 33132

Approved by Governor Scott Took effect on July 1, 2011 Adds eligibility provisions for students with Section 504

Accommodation Plans Students with Section 504 Plan written by the school

district may be eligible for a McKay Scholarship Students with temporary (6 months or less duration)

Section 504 Plans are ineligible Students will receive basic funding There is no Matrix of Services filed for Section 504 Plans Website www.floridaschoolchoice.org .

Section 504 Compliance Officer

Dr. Sue L. Buslinger-Clifford

Instructional Supervisor

SBAB Annex – 407

sclifford@dadeschools.net

Office (305) 995-1735