Federal and State Laws Regarding Students with Disabilities
State Laws
Special Education Law in Indiana (Article 7) complete text
Federal Laws
ESEA Comparison
The Rehabilitation Act of 1973 is a broad federal civil rights statute written to provide special education and rehabilitative services for individuals with disabilities including preschool and school-aged children and young adults and to provide certain protections for all Americans to access programs, activities, and services.
Unfortunately, even in 1977 when Section 504 of the Rehabilitation Act was put into action, there still was much confusion as to what was the responsibility of Section 504 in comparison to existing special education laws. It was commonly viewed that Section 504 was not to provide special education, but only “access” to buildings and services. It was not until 1991 that the differences and the similarities of all existing legislation were initially clarified.
In 2008, the Americans with Disabilities Act (ADA) was amended to Americans with Disabilities Amendments Act (ADAA). The U.S. Departments of Justice, Labor, and Education continue to refer to the ADAA as the ADA.
Section 504 Statute
The Statute for Section 504 is as follows: "No otherwise qualified individual with a disability in the United States, as defined in Section 706(6) of this Title, shall, solely on the basis of his or her disability, be denied participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity . . ."
Examples of Discrimination
Examples of discrimination include: Automatically having a different schedule for lunch and/or recess for special education classes than for other classes; Not making necessary arrangements for a student with a disability to participate with peers on a field trip, outdoor school or other similar activity; or Locating classrooms for students with special needs in more remote locations within a school thereby limiting access to non-disabled peers.
Americans with Disabilities Act
The Americans with Disabilities Act, passed in 1990, was the first comprehensive civil rights law for all individuals with disabilities. It applies to all qualifying private employers (those with 15 or more employees), all state and local governments programs including public schools and non-religiously controlled colleges and universities, and all places of public accommodation (i.e. public library).
Americans with Disabilities Amendments Act
Congress amended the ADA in 2008 to what is known as the Americans with Disabilities Amendments Act or the ADAA (still referred commonly as the ADA) as a result of several legal cases that limited the participation of individuals with physical or mental impairments.
ADA and Section 504 Act
Since the ADA and Section 504 protect the same individuals, Section 504 became consistent with the ADA as a result of the amendments of 2008. The common denominators between Section 504 and ADA are that both relate to school-age children and adults with disabilities being denied access to programs, activities, and services (a free appropriate public education, employment, etc.)
Clarifications Act
The amendments to the ADA clarify that congress intended that the Act “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and provide broad coverage. This was not happening. The ADA (including the amendments of 2008) clarifies what is meant by a major life activity (including the addition of major bodily functions) and how public entities (such as public schools) are to consider if a physical or mental impairment is “substantially limiting a major life activity.
Section 504 and IDEA
Section 504 provisions are very similar to the Individuals with Disabilities Education Improvement Act (or IDEIA, commonly referred to as the IDEA), which has very specific eligibility requirements for school-aged students, including children aged 3 to 5. Section 504 covers school-aged children, young adults as well as adults wishing to gain access to the school’s activities, programs, and services.
The requirements for schools under the IDEA are essentially the same as those set in Section 504. Both place responsibilities for public entities for providing equal access to programs, activities, and services. Students not eligible for IDEA may be eligible for Section 504 protections that are applied to public and private K-12 schools, colleges, universities and testing agencies but do not extend to organizations controlled by religious groups. The ADA covers public as well as private entities, such as parochial schools if they have fifteen employees or more. The ADA provides protection to all Americans, including employment opportunities.
Definition of a Disability
according to Section 504 and the amendments to the Americans with Disabilities Act, an individual may have a disability if he or she: Has a physical or mental impairment which substantially limits one or more major life activities; and/or has a record or history of such impairment; and/or is regarded as having such impairment.
Previous to the amendments to the ADA, some public and private entities required additional criteria for eligibility before protection was applied. Congress stated its intention that the determination “should not demand extensive analysis” and should be construed in favor of broad coverage”
Eligibility
A person may be considered as eligible if they have a record or a history of an impairment. Students no longer eligible for services under the IDEA may be eligible for protection under Section 504, especially now that the definition of “substantial limitation” has been broadened.
An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
“Major Life Activities” Definition
Major life activities (according to Section 504 and the amendments to the ADA) 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. 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.
“Substantial Limitation” Definition
Substantial limitation (according to the 2008 amendments to the ADA) occurs when a person is: “Unable to perform a major life activity that the average person in the general population can perform. In addition to this, the person may be significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity.” The 2008 amendments to the ADA clarify the use of the term to be interpreted broadly and inclusively. A “substantial limitation” is not required to be a “significant” or “severe” restriction.
Further, an impairment substantially limiting one (or more) major life activities does not need to limit others to be considered a disability. For example, a student may be considered to have a disability if his or her impairment limits reading even if it does not substantially limit learning.
“Qualified Individual with a Disability” Definition
The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.
First Way of Meeting the Definition for having a Disability
Keeping these definitions of “major life activities” and “substantial limitations” in mind, then, let’s look closer at the three ways an individual may meet the definition of having a disability: 1. The most common way an individual satisfies the definition of disabled is if he or she has a physical or mental impairment which substantially limits one or more major life activities.
For example, any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; urinary and lymphatic; skin; and endocrine: and/or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
This is the major definition and it includes each and every category in special education. It is easy to see that every student with a disability is also qualified for Section 504, but since they have more than met the eligibility requirements under Section 504, there is no need to have duplicate processes, etc.
Data, such as a report from a physician or other medical professionals, classroom data, etc. is needed to support that an individual has a mental or physical impairment, but in order to qualify, the impairment must substantially limit one or more major life activities without consideration of mitigating measures (i.e. hearing aides, medication, learned behavioral adaptations, medical supplies or equipment, low-vision devices, assistive technology, auxiliary aides and services, mobility devices, prosthetic devices and reasonable accommodations). The one exception is for ordinary eye glasses or contact lenses..
Second Way to Meet the Definition for having a Disability
A second way to meet the definition is if an individual has a record or history of such impairment. For example, a student may no longer qualify for special education because the impairment (or disability) is no longer adversely affecting educational performance. This does not mean the student no longer has a disability since the student was not “cured” by special education. It may mean, however, that we need to look at the student’s needs with a different set of standards. Remember, a student previously removed from special education services should be reviewed as well to ensure he continues to do well in inclusive environments.
Students with a past history of being supported through special education may or may not be eligible for Section 504 protection. They need to meet the definition of Section 504, including being substantially limited in one or more major life activities and have the data to prove the need. The standards for determining eligibility between the IDEA and Section 504 are different and it behooves a district to review all students removed for the past three years.
Third Way to Meet the Definition for having a Disability
The final way an individual can meet the definition is to be regarded as having such impairment. One must be very careful not to “regard” a student as having a disability because if a child or young adult is treated as if they have a disability, the protections under this act follow him or her. Additionally, under amendments to the ADA, a student is not regarded as having a disability if the disability is “transitory or minor” and defines transitory as “an impairment with an actual or expected duration of 6 months or less”.
A common problem is a teacher who self-diagnoses a child as having a condition like ADHD and then modifies the child’s environment or holds the child to a higher behavioral standard than others in the classroom. This is clear discrimination and, should this be the practice, the process of Section 504 eligibility should commence immediately. When educators treat a child they regard as having a disability differently than others, then discrimination occurs under this definition.
Compliance Requirements for Schools
This and the next several slides outline the compliance requirements expected from public entities, including schools. Each school must have a Section 504 Coordinator. It is recommended that a person with responsibilities that extend to all personnel serve in the capacity of 504 Coordinator. The 504 Coordinator serves as the Hearing Officer for local grievances and disputes unless the matter is referred to the Office of Civil Rights, the State Superintendent of the Department of Education (in an impartial due process hearing), or civil court.
All building administrators should be appointed Compliance Officers for their building.
Each school must also have a policy to protect individuals with disabilities. Existing Equal Opportunity policies can be easily modified to include the phrase, individuals with disabilities. In addition, each school must provide 4 types of notices to the public: Section 504 Compliance; Parent Notice; Procedural Safeguards; and ADA Notice of Non-Discrimination in Employment Practices.
Schools must also document their continual attempts to notify the public of their responsibilities. This can be done through newsletters, Student/Parent Handbooks, Postings in public areas and in staff lounges, newspaper notices, etc. It is necessary for each school to provide procedural safeguards. This is a document highlighting the Rights and Options of Parents of Children who have disabilities and should be given to them whenever there is a determination of eligibility or need.
Schools are also expected to conduct a Self Study and have it on file in a central location for public review. The following areas require comprehensive study: Facilities, Policies and Administrative Guidelines, Classroom and Building Activities, Evacuation Procedures, and Employment Practices.
There must be written documentation that schools provide opportunities for dispute resolution through the development of a Grievance Procedure. The Section 504 Coordinator is the hearing officer for all grievances, including: An OCR Complaint, An Impartial Due Process Hearing, Or Civil Court. And, finally, each school must identify and locate eligible individuals (children and adults) through a child-find campaign.
School’s Responsibility
In general, it is a school’s responsibility to ensure that individuals who wish to have access to the public school’s programs, activities, and services (including the facility), not be discriminated in their efforts due to their disability. The requirements under Section 504 (and the ADA) are very limited and do not extend to the length that is common to special education.
Some parents feel this Section provides an entitlement, but no one is entitled unless it can be proven with documentation that there is a mental or physical impairment that substantially limits one or more major life activities. It is the school’s responsibility is to “identify and locate” individuals who may have a disability.
Increase in Section 504 Plans
Note: The changes made in the amendments to the ADA may increase the number of Section 504 plans schools must prepare for students whose needs previously were addressed under a Health Plan. Since there is no stated requirement for a “written plan,” a health care plan may suffice as long as the parents or guardians are afforded an opportunity to participate in the determination and they are provided an oral and written review of the procedural safeguards (commonly referred to as Parents rights and Options).
Response to Intervention
Prior to considering a formal referral it is recommended that schools have a pre-referral process for all students to assist children and young adults in the general education classroom. IDEIA (Individuals with Disabilities Education and Improvement Act) now requires a program titled Response to Intervention (or RTI) where assistance is provided in the general education classroom before a formal referral is initiated.
What is important here is that before a child is referred for special education or Section 504 services, it should be understood that the child will remain in the general education classroom, and the teacher will be expected to try different strategies and modify general core subject instruction.
RTI works outside of a formal referral for special education or Section 504. It is a school-wide initiative that requires data on a child’s performance in the before more formal processes, like assessment for special education determination, is initiated. The teachers help generate strategies that should be tried. The classroom teacher does not immediately move to a referral, but is expected to try and document the results of different strategies first. It is suggested that schools utilize RTI to assist all students before initiating a potential Section 504 referral
Help in the RTI Process
The following list on this and the next slide may help in the pre-referral or RTI process in an effort to determine if a child or young adult may need assistance: Hospitalization (chronic or long-term); Homebound students; Homeless, migrant, or other qualified individuals with disabilities; Student found ineligible for Special Education; School concerns regarding academic performance; Parental concerns frequently expressed; Students re-entering school after having been temporarily placed in a private setting; Students exhibiting a chronic health condition and/or receiving medical attention at school.
Suspensions approaching an aggregate of seven to ten instructional days; The school is considering expulsion or retention; Student is suffering the death of someone close or the separation/divorce of their parents; Suspicion of abuse in the home; The student’s attendance record approaches the school district’s limit; Student is considered a potential drop-out (hangs around the wrong crowd, grades are dropping, etc); or Substance abuse is considered. Parents can establish the need for a referral and the RTI processes shall not delay the referral and evaluation.
Initiating a Referral
Usually the pre-referral process works, but if the child’s issues are more severe and in need of outside attention, a referral may be initiated. If the child’s problems are so severe that a referral may be needed, the school may first want to contact their Special Education Director for possible special education eligibility. Parents sometimes feel their child is entitled to a Section 504 plan and may start a referral. For a referral to be established there must be a suspicion that the child or young adult has a disability. Most referrals, however, are generated from classroom teachers due to poor performance in the classroom.
Use Caution When Completing a Referral
Teachers are urged to use caution when completing a referral. They should never label the disorder. Many conditions require a medical professional for diagnosis. They should never label the child. Labeling could result in a costly, unnecessary evaluation for the school. They should detail the observable characteristics (i.e., the child is impulsive, highly distractible, defiant to my authority, etc.). They should always remember parents have access to the information documented on a referral.
Referral Forms and Parent Meetings
Schools are recommended to have a referral form that documents both that the concerns were registered and the parent’s involvement. Once a referral is established, whether it is initiated by the parent(s) or teachers, call for a Parent Meeting. Use this meeting to document your attempts to assist the child and involve the parents. Provide a copy of the referral to the parent. Document the questions you have that need to be resolved. Determine how you will seek answers to questions generated about the child’s performance and who will provide the data needed. Set the date and the time for the conference to determine eligibility.
Doctor’s Report
There will be times that a parent brings in a doctor’s report detailing a physical or mental disability that is not questioned. This often is the case in the area of diabetes, hypoglycemia, epilepsy, cancer, etc., where it is prudent to set up a Health Care Plan immediately. This Health Care Plan can, and often does serve as the 504 Plan as long as the parents are involved in the determination of modifications to the general environment discussion. A School Nurse or Health Care provider would be extremely helpful here.
Remain within Area of Competency
Other cases, such as the determination of educational environments due to a doctor’s diagnosis of ADD/ADHD, may require more time, especially if the doctor did not include the school’s input for the label. NOTE: Some doctors feel they have the final word as to whether a child receives services through the school. Unless they have an educational degree, they should be advised to remain within their area of competency.
The same should be said of teachers suggesting to parents that their child should be medicated. Unless they have a license to practice medicine, they must remain within their area of competency. Determinations of services are based on eligibility and the data presented, so if a doctor states John Doe has ADD and needs a one-on-one tutor, consider the suggestion, but base your decision on the data. Keep in mind that all students will benefit from a one-on-one tutor. The question here is if a child will be denied a free appropriate public education without additional help, which might include a one-on-one tutor. If the data does not support the need, the answer is no. Always consider the data, even if the data reflects a parent’s wishes delivered by a doctor without supportive data.
Providing a “Level Playing Field”
Further, it should be remembered that all legislation serving individuals with disabilities merely expects that all people be provided a level “playing field.” This does not mean that because they have a disability they have rights that extend beyond the general, non-disabled population. If that were the case, they would, in effect, be discriminating against those without disabilities. This is not Congress’s intention.
Physical or Mental Impairments that May Qualify for 504
Some physical or mental impairments which may qualify an individual for Section 504 protection are on this and the next slide: Attention Deficit Disorder/Attention Deficit Hyperactivity Disorder; Chronic medical conditions, i.e., diabetes, hypoglycemia, seizure disorder, cancer, etc.; Temporary medical conditions; Injuries that will not be accommodated through regular means; Pregnancy is not considered a 504 disability; Communicable diseases, i.e., HIV, Aids, mononucleosis.
Drug/alcohol addiction (Drug addiction requires successful rehabilitation for a person to qualify under Section 504. In other words, they must not be a drug user to be eligible.); Alcoholism is considered a “disease” and, therefore, qualifies if the eligibility criteria can be met. Physical impairments; junior rheumatoid arthritis; Mental impairments including emotional conditions; those not included in special education; and Behavior disorders (Be careful that there is a clear building Behavior Management Plan that everyone follows.)
Evaluation and Data Gathering Process
Once the Parent Meeting is held, the Evaluation and Data Gathering period uses the same timelines as special education does. Seek the data to offer resolve to the questions. This may not mean a Psychologist needs to be involved, but in medical issues, include the child’s doctor. In academic issues, include the teaching and support staff keeping in mind FERPA rights. In many cases, you will not need to go outside for help, but determine this together with the parents. Include a common-sense approach to who should be involved in the assessment; always include the classroom teacher(s) and the parent.
Conference Questions
Once the data is gathered, a Conference should be scheduled and held. A common-sense approach should be used as to who should be involved. At the conference, the following questions should be answered: Is there a physical or mental impairment? Is it substantially limiting to one or more major life activities? Is there a record or history of impairment? Is the individual regarded as having an impairment? Do you have data to substantiate a decision and the type of accommodations that need to be provided?
Items to Document, Annual Reviews & Re-Evaluations
There is no requirement to develop a written plan. It is suggested, however, that you document all your efforts to assist a child having difficulty in school or in the environment: The accommodations that will be made (what are you going to do about the barrier?); any professional development planned for the staff; the names of those to whom the plan is communicated and when (document and communicate the plan only to those that should have it).
Items to Document, Annual Reviews & Re-Evaluations (Cont’d.)
An Annual Review is not required, but, following an Office of Civil Rights clarification, a 504 Plan re-evaluation is considered similar to an IDEA re-evaluation in that a re-evaluation must be conducted periodically and must occur prior to a “significant change of placement”. During the re-evaluation ask such questions as: How is the child doing on the competency assessment(s)/state standards? How is the child’s daily work?
Suspensions
No school may exclude a child with a disability from receiving a free, appropriate public education, but all students can be suspended by the principal for up to ten (10) days. Be mindful not to suspend a child with a disability more than other students. It is always advised to keep all students engaged in meaningful instruction.
Expulsions and Manifest Determination
Students with a Section 504 disability may be expelled from school if the offense is not related to their disability. Before a child can be expelled a “Manifest Determination Conference” must be conducted, where a committee (including the parents and school personnel) discusses whether the disability “caused” the individual’s infraction of the school rule(s). If the disability did not “cause” the infraction, he can be expelled from school. If it did, a free appropriate public education must continue.
Violations of the school’s Drug and Alcohol Code of Conduct, however, are exempted from requiring a manifest determination conference (unless the student is also served in special education under the IDEA). Students violating this code of conduct are referred immediately to the school’s due process procedure afforded all students. Remember, students receiving special education may never be denied a free appropriate public education, so expulsion must always result in some instruction, even at a remote location.
Transition Services
Transition services (as required in special education) are not required by Section 504, but they are advised, especially when the child graduates from high school. Students matriculating from one school to another will have a plan in force, unless a committee (including the participation of the parents) determines otherwise. Adult students speak for themselves, but the parents must continue to be included.
Individuals transitioning to a post graduate facility (i.e. college, university, apprenticeships, etc) are responsible for seeking assistance by contacting the college or university’s office assisting individuals with disabilities. Some private schools, unfortunately charge for accommodations. This practice, no doubt will be tested in the courts.
School-related Activities
Section 504 follows a child in school-related activities such as athletics and club participation. Individuals with disabilities that wish to participate in extra-curricular activities must never be denied the opportunity to participate because someone has made a unilateral decision as to the quality of the participation or whether the child has a disability. Individuals with a disability must be given the opportunity to try-out without certain prejudices or bias as would be the case for all other students.
ADA/Section 504 and Adults
Section 504 and the amendments to the ADA prohibit discrimination against “qualified individuals with disabilities” in all employment practices, including job application procedures, hiring, firing, advancement, compensation and training. The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.
Essential Job Functions
Consideration shall be given to the employer's judgment as to what functions of a job are essential. If an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. A job description may not exclude individuals with disabilities or be written in such a manner to exclude their participation.
“Qualified Individual with a Disability”
Additionally, a “qualified individual with a disability” is an employee or job applicant who meets all documented skills, experience, and other requirements of a position and can perform the essential functions of the position with or without reasonable accommodation.
"Reasonable Accommodation"
The term "reasonable accommodation" may include: Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; Job restructuring; Part-time or modified work schedules; Reassignment to a vacant position; Acquisition or modification of equipment or devices; Appropriate adjustment or modifications of examinations, training materials or policies; The provision of qualified readers or interpreters; And other similar accommodations for individuals with disabilities.
Adults and Section 504
There are adults that impact the educational process, whether they are employees or adults wishing to gain access to the school’s programs, activities, services, or facilities. Individuals wishing to gain access to a school’s programs, activities, or services that may require accommodations must make contact with the facility leader or employer, and disclose information about the disability and the need for specific accommodations.
Grievance
Those that feel their concerns are not addressed should contact the district Section 504 Coordinator to address a grievance pertaining to potential discrimination. Complaints may also be filed with the Equal Employment Opportunity Commission or the designated state human rights agency.
Developing a Process for Determination
There is no process in law for determining whether an adult person qualifies for services. It is recommended that the public entity consider a process and document all attempts to assist in determinations. For example, Public entities, namely schools, should notify the public of their responsibilities with regard to Section 504. By doing this, the school will also be meeting requirements under the ADA as well. Public notices, such as the ADA Notice of Non-Discrimination in Employment, are critical.
Burden of Proof
The school district is urged to develop a referral form to document referrals. It is commonly felt that if an individual feels they have a disability, the burden of proof is on the individual. If the employer believes there is a disability, then the burden rests with them. As with school-aged students, document the questions and seek the answers. Medical issues can be resolved by seeking the advice of a physician with the help of the district’s health insurance plan. Many classified employees, however, do not have insurance, so if the district believes there is a disability, the burden of paying medical costs rests with the employer.
Section 504 and Adults
Once answers to questions have been gathered, it is time to meet in a conference. Answer the same questions as for students; namely: Is there a physical or mental impairment? Is it substantially limiting one or more major life activities? Is there a record or history of impairment? Is the individual regarded as having impairment? Do you have data to substantiate a decision and the type of accommodations that need to be provided?
Plan to Accommodate the Need
If the individual qualifies under Section 504/ADA, prepare a common sense plan to accommodate the needs. It’s always best to detail the need(s) and how you will accommodate the need. Remember, in cases of an employee, the individual’s file in this regard must not be kept in the district’s personnel file and must be retained in a separate file.
Summary
It was clearly Congress’ intention to make public education available to all. Legislation like Section 504 merely levels the “playing field” so individuals with disabilities can experience success in the general realm with or without modifications and/or accommodations. It is generally accepted that the public entities need to provide documentation of all their attempts not to discriminate against any individual. Over the years, it has become clear that students with disabilities must be educated in the general education classroom and that they must be successful in the general curriculum.
In this era of accountability, it is assumed that schools understand diversity as far as ability is concerned among their students. Unfortunately, this concept has not yet reached all educators. There still remain some leaders resistant to inclusion of all students despite their gender, size, age, national origin, race, or disability. Section 504 holds educators accountable for providing all students a chance for success.
Special Education Law in Indiana (Article 7) complete text
Federal Laws
ESEA Comparison
The Rehabilitation Act of 1973 is a broad federal civil rights statute written to provide special education and rehabilitative services for individuals with disabilities including preschool and school-aged children and young adults and to provide certain protections for all Americans to access programs, activities, and services.
Unfortunately, even in 1977 when Section 504 of the Rehabilitation Act was put into action, there still was much confusion as to what was the responsibility of Section 504 in comparison to existing special education laws. It was commonly viewed that Section 504 was not to provide special education, but only “access” to buildings and services. It was not until 1991 that the differences and the similarities of all existing legislation were initially clarified.
In 2008, the Americans with Disabilities Act (ADA) was amended to Americans with Disabilities Amendments Act (ADAA). The U.S. Departments of Justice, Labor, and Education continue to refer to the ADAA as the ADA.
Section 504 Statute
The Statute for Section 504 is as follows: "No otherwise qualified individual with a disability in the United States, as defined in Section 706(6) of this Title, shall, solely on the basis of his or her disability, be denied participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance or under any program or activity . . ."
Examples of Discrimination
Examples of discrimination include: Automatically having a different schedule for lunch and/or recess for special education classes than for other classes; Not making necessary arrangements for a student with a disability to participate with peers on a field trip, outdoor school or other similar activity; or Locating classrooms for students with special needs in more remote locations within a school thereby limiting access to non-disabled peers.
Americans with Disabilities Act
The Americans with Disabilities Act, passed in 1990, was the first comprehensive civil rights law for all individuals with disabilities. It applies to all qualifying private employers (those with 15 or more employees), all state and local governments programs including public schools and non-religiously controlled colleges and universities, and all places of public accommodation (i.e. public library).
Americans with Disabilities Amendments Act
Congress amended the ADA in 2008 to what is known as the Americans with Disabilities Amendments Act or the ADAA (still referred commonly as the ADA) as a result of several legal cases that limited the participation of individuals with physical or mental impairments.
ADA and Section 504 Act
Since the ADA and Section 504 protect the same individuals, Section 504 became consistent with the ADA as a result of the amendments of 2008. The common denominators between Section 504 and ADA are that both relate to school-age children and adults with disabilities being denied access to programs, activities, and services (a free appropriate public education, employment, etc.)
Clarifications Act
The amendments to the ADA clarify that congress intended that the Act “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and provide broad coverage. This was not happening. The ADA (including the amendments of 2008) clarifies what is meant by a major life activity (including the addition of major bodily functions) and how public entities (such as public schools) are to consider if a physical or mental impairment is “substantially limiting a major life activity.
Section 504 and IDEA
Section 504 provisions are very similar to the Individuals with Disabilities Education Improvement Act (or IDEIA, commonly referred to as the IDEA), which has very specific eligibility requirements for school-aged students, including children aged 3 to 5. Section 504 covers school-aged children, young adults as well as adults wishing to gain access to the school’s activities, programs, and services.
The requirements for schools under the IDEA are essentially the same as those set in Section 504. Both place responsibilities for public entities for providing equal access to programs, activities, and services. Students not eligible for IDEA may be eligible for Section 504 protections that are applied to public and private K-12 schools, colleges, universities and testing agencies but do not extend to organizations controlled by religious groups. The ADA covers public as well as private entities, such as parochial schools if they have fifteen employees or more. The ADA provides protection to all Americans, including employment opportunities.
Definition of a Disability
according to Section 504 and the amendments to the Americans with Disabilities Act, an individual may have a disability if he or she: Has a physical or mental impairment which substantially limits one or more major life activities; and/or has a record or history of such impairment; and/or is regarded as having such impairment.
Previous to the amendments to the ADA, some public and private entities required additional criteria for eligibility before protection was applied. Congress stated its intention that the determination “should not demand extensive analysis” and should be construed in favor of broad coverage”
Eligibility
A person may be considered as eligible if they have a record or a history of an impairment. Students no longer eligible for services under the IDEA may be eligible for protection under Section 504, especially now that the definition of “substantial limitation” has been broadened.
An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
“Major Life Activities” Definition
Major life activities (according to Section 504 and the amendments to the ADA) 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. 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.
“Substantial Limitation” Definition
Substantial limitation (according to the 2008 amendments to the ADA) occurs when a person is: “Unable to perform a major life activity that the average person in the general population can perform. In addition to this, the person may be significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity.” The 2008 amendments to the ADA clarify the use of the term to be interpreted broadly and inclusively. A “substantial limitation” is not required to be a “significant” or “severe” restriction.
Further, an impairment substantially limiting one (or more) major life activities does not need to limit others to be considered a disability. For example, a student may be considered to have a disability if his or her impairment limits reading even if it does not substantially limit learning.
“Qualified Individual with a Disability” Definition
The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.
First Way of Meeting the Definition for having a Disability
Keeping these definitions of “major life activities” and “substantial limitations” in mind, then, let’s look closer at the three ways an individual may meet the definition of having a disability: 1. The most common way an individual satisfies the definition of disabled is if he or she has a physical or mental impairment which substantially limits one or more major life activities.
For example, any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; urinary and lymphatic; skin; and endocrine: and/or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
This is the major definition and it includes each and every category in special education. It is easy to see that every student with a disability is also qualified for Section 504, but since they have more than met the eligibility requirements under Section 504, there is no need to have duplicate processes, etc.
Data, such as a report from a physician or other medical professionals, classroom data, etc. is needed to support that an individual has a mental or physical impairment, but in order to qualify, the impairment must substantially limit one or more major life activities without consideration of mitigating measures (i.e. hearing aides, medication, learned behavioral adaptations, medical supplies or equipment, low-vision devices, assistive technology, auxiliary aides and services, mobility devices, prosthetic devices and reasonable accommodations). The one exception is for ordinary eye glasses or contact lenses..
Second Way to Meet the Definition for having a Disability
A second way to meet the definition is if an individual has a record or history of such impairment. For example, a student may no longer qualify for special education because the impairment (or disability) is no longer adversely affecting educational performance. This does not mean the student no longer has a disability since the student was not “cured” by special education. It may mean, however, that we need to look at the student’s needs with a different set of standards. Remember, a student previously removed from special education services should be reviewed as well to ensure he continues to do well in inclusive environments.
Students with a past history of being supported through special education may or may not be eligible for Section 504 protection. They need to meet the definition of Section 504, including being substantially limited in one or more major life activities and have the data to prove the need. The standards for determining eligibility between the IDEA and Section 504 are different and it behooves a district to review all students removed for the past three years.
Third Way to Meet the Definition for having a Disability
The final way an individual can meet the definition is to be regarded as having such impairment. One must be very careful not to “regard” a student as having a disability because if a child or young adult is treated as if they have a disability, the protections under this act follow him or her. Additionally, under amendments to the ADA, a student is not regarded as having a disability if the disability is “transitory or minor” and defines transitory as “an impairment with an actual or expected duration of 6 months or less”.
A common problem is a teacher who self-diagnoses a child as having a condition like ADHD and then modifies the child’s environment or holds the child to a higher behavioral standard than others in the classroom. This is clear discrimination and, should this be the practice, the process of Section 504 eligibility should commence immediately. When educators treat a child they regard as having a disability differently than others, then discrimination occurs under this definition.
Compliance Requirements for Schools
This and the next several slides outline the compliance requirements expected from public entities, including schools. Each school must have a Section 504 Coordinator. It is recommended that a person with responsibilities that extend to all personnel serve in the capacity of 504 Coordinator. The 504 Coordinator serves as the Hearing Officer for local grievances and disputes unless the matter is referred to the Office of Civil Rights, the State Superintendent of the Department of Education (in an impartial due process hearing), or civil court.
All building administrators should be appointed Compliance Officers for their building.
Each school must also have a policy to protect individuals with disabilities. Existing Equal Opportunity policies can be easily modified to include the phrase, individuals with disabilities. In addition, each school must provide 4 types of notices to the public: Section 504 Compliance; Parent Notice; Procedural Safeguards; and ADA Notice of Non-Discrimination in Employment Practices.
Schools must also document their continual attempts to notify the public of their responsibilities. This can be done through newsletters, Student/Parent Handbooks, Postings in public areas and in staff lounges, newspaper notices, etc. It is necessary for each school to provide procedural safeguards. This is a document highlighting the Rights and Options of Parents of Children who have disabilities and should be given to them whenever there is a determination of eligibility or need.
Schools are also expected to conduct a Self Study and have it on file in a central location for public review. The following areas require comprehensive study: Facilities, Policies and Administrative Guidelines, Classroom and Building Activities, Evacuation Procedures, and Employment Practices.
There must be written documentation that schools provide opportunities for dispute resolution through the development of a Grievance Procedure. The Section 504 Coordinator is the hearing officer for all grievances, including: An OCR Complaint, An Impartial Due Process Hearing, Or Civil Court. And, finally, each school must identify and locate eligible individuals (children and adults) through a child-find campaign.
School’s Responsibility
In general, it is a school’s responsibility to ensure that individuals who wish to have access to the public school’s programs, activities, and services (including the facility), not be discriminated in their efforts due to their disability. The requirements under Section 504 (and the ADA) are very limited and do not extend to the length that is common to special education.
Some parents feel this Section provides an entitlement, but no one is entitled unless it can be proven with documentation that there is a mental or physical impairment that substantially limits one or more major life activities. It is the school’s responsibility is to “identify and locate” individuals who may have a disability.
Increase in Section 504 Plans
Note: The changes made in the amendments to the ADA may increase the number of Section 504 plans schools must prepare for students whose needs previously were addressed under a Health Plan. Since there is no stated requirement for a “written plan,” a health care plan may suffice as long as the parents or guardians are afforded an opportunity to participate in the determination and they are provided an oral and written review of the procedural safeguards (commonly referred to as Parents rights and Options).
Response to Intervention
Prior to considering a formal referral it is recommended that schools have a pre-referral process for all students to assist children and young adults in the general education classroom. IDEIA (Individuals with Disabilities Education and Improvement Act) now requires a program titled Response to Intervention (or RTI) where assistance is provided in the general education classroom before a formal referral is initiated.
What is important here is that before a child is referred for special education or Section 504 services, it should be understood that the child will remain in the general education classroom, and the teacher will be expected to try different strategies and modify general core subject instruction.
RTI works outside of a formal referral for special education or Section 504. It is a school-wide initiative that requires data on a child’s performance in the before more formal processes, like assessment for special education determination, is initiated. The teachers help generate strategies that should be tried. The classroom teacher does not immediately move to a referral, but is expected to try and document the results of different strategies first. It is suggested that schools utilize RTI to assist all students before initiating a potential Section 504 referral
Help in the RTI Process
The following list on this and the next slide may help in the pre-referral or RTI process in an effort to determine if a child or young adult may need assistance: Hospitalization (chronic or long-term); Homebound students; Homeless, migrant, or other qualified individuals with disabilities; Student found ineligible for Special Education; School concerns regarding academic performance; Parental concerns frequently expressed; Students re-entering school after having been temporarily placed in a private setting; Students exhibiting a chronic health condition and/or receiving medical attention at school.
Suspensions approaching an aggregate of seven to ten instructional days; The school is considering expulsion or retention; Student is suffering the death of someone close or the separation/divorce of their parents; Suspicion of abuse in the home; The student’s attendance record approaches the school district’s limit; Student is considered a potential drop-out (hangs around the wrong crowd, grades are dropping, etc); or Substance abuse is considered. Parents can establish the need for a referral and the RTI processes shall not delay the referral and evaluation.
Initiating a Referral
Usually the pre-referral process works, but if the child’s issues are more severe and in need of outside attention, a referral may be initiated. If the child’s problems are so severe that a referral may be needed, the school may first want to contact their Special Education Director for possible special education eligibility. Parents sometimes feel their child is entitled to a Section 504 plan and may start a referral. For a referral to be established there must be a suspicion that the child or young adult has a disability. Most referrals, however, are generated from classroom teachers due to poor performance in the classroom.
Use Caution When Completing a Referral
Teachers are urged to use caution when completing a referral. They should never label the disorder. Many conditions require a medical professional for diagnosis. They should never label the child. Labeling could result in a costly, unnecessary evaluation for the school. They should detail the observable characteristics (i.e., the child is impulsive, highly distractible, defiant to my authority, etc.). They should always remember parents have access to the information documented on a referral.
Referral Forms and Parent Meetings
Schools are recommended to have a referral form that documents both that the concerns were registered and the parent’s involvement. Once a referral is established, whether it is initiated by the parent(s) or teachers, call for a Parent Meeting. Use this meeting to document your attempts to assist the child and involve the parents. Provide a copy of the referral to the parent. Document the questions you have that need to be resolved. Determine how you will seek answers to questions generated about the child’s performance and who will provide the data needed. Set the date and the time for the conference to determine eligibility.
Doctor’s Report
There will be times that a parent brings in a doctor’s report detailing a physical or mental disability that is not questioned. This often is the case in the area of diabetes, hypoglycemia, epilepsy, cancer, etc., where it is prudent to set up a Health Care Plan immediately. This Health Care Plan can, and often does serve as the 504 Plan as long as the parents are involved in the determination of modifications to the general environment discussion. A School Nurse or Health Care provider would be extremely helpful here.
Remain within Area of Competency
Other cases, such as the determination of educational environments due to a doctor’s diagnosis of ADD/ADHD, may require more time, especially if the doctor did not include the school’s input for the label. NOTE: Some doctors feel they have the final word as to whether a child receives services through the school. Unless they have an educational degree, they should be advised to remain within their area of competency.
The same should be said of teachers suggesting to parents that their child should be medicated. Unless they have a license to practice medicine, they must remain within their area of competency. Determinations of services are based on eligibility and the data presented, so if a doctor states John Doe has ADD and needs a one-on-one tutor, consider the suggestion, but base your decision on the data. Keep in mind that all students will benefit from a one-on-one tutor. The question here is if a child will be denied a free appropriate public education without additional help, which might include a one-on-one tutor. If the data does not support the need, the answer is no. Always consider the data, even if the data reflects a parent’s wishes delivered by a doctor without supportive data.
Providing a “Level Playing Field”
Further, it should be remembered that all legislation serving individuals with disabilities merely expects that all people be provided a level “playing field.” This does not mean that because they have a disability they have rights that extend beyond the general, non-disabled population. If that were the case, they would, in effect, be discriminating against those without disabilities. This is not Congress’s intention.
Physical or Mental Impairments that May Qualify for 504
Some physical or mental impairments which may qualify an individual for Section 504 protection are on this and the next slide: Attention Deficit Disorder/Attention Deficit Hyperactivity Disorder; Chronic medical conditions, i.e., diabetes, hypoglycemia, seizure disorder, cancer, etc.; Temporary medical conditions; Injuries that will not be accommodated through regular means; Pregnancy is not considered a 504 disability; Communicable diseases, i.e., HIV, Aids, mononucleosis.
Drug/alcohol addiction (Drug addiction requires successful rehabilitation for a person to qualify under Section 504. In other words, they must not be a drug user to be eligible.); Alcoholism is considered a “disease” and, therefore, qualifies if the eligibility criteria can be met. Physical impairments; junior rheumatoid arthritis; Mental impairments including emotional conditions; those not included in special education; and Behavior disorders (Be careful that there is a clear building Behavior Management Plan that everyone follows.)
Evaluation and Data Gathering Process
Once the Parent Meeting is held, the Evaluation and Data Gathering period uses the same timelines as special education does. Seek the data to offer resolve to the questions. This may not mean a Psychologist needs to be involved, but in medical issues, include the child’s doctor. In academic issues, include the teaching and support staff keeping in mind FERPA rights. In many cases, you will not need to go outside for help, but determine this together with the parents. Include a common-sense approach to who should be involved in the assessment; always include the classroom teacher(s) and the parent.
Conference Questions
Once the data is gathered, a Conference should be scheduled and held. A common-sense approach should be used as to who should be involved. At the conference, the following questions should be answered: Is there a physical or mental impairment? Is it substantially limiting to one or more major life activities? Is there a record or history of impairment? Is the individual regarded as having an impairment? Do you have data to substantiate a decision and the type of accommodations that need to be provided?
Items to Document, Annual Reviews & Re-Evaluations
There is no requirement to develop a written plan. It is suggested, however, that you document all your efforts to assist a child having difficulty in school or in the environment: The accommodations that will be made (what are you going to do about the barrier?); any professional development planned for the staff; the names of those to whom the plan is communicated and when (document and communicate the plan only to those that should have it).
Items to Document, Annual Reviews & Re-Evaluations (Cont’d.)
An Annual Review is not required, but, following an Office of Civil Rights clarification, a 504 Plan re-evaluation is considered similar to an IDEA re-evaluation in that a re-evaluation must be conducted periodically and must occur prior to a “significant change of placement”. During the re-evaluation ask such questions as: How is the child doing on the competency assessment(s)/state standards? How is the child’s daily work?
Suspensions
No school may exclude a child with a disability from receiving a free, appropriate public education, but all students can be suspended by the principal for up to ten (10) days. Be mindful not to suspend a child with a disability more than other students. It is always advised to keep all students engaged in meaningful instruction.
Expulsions and Manifest Determination
Students with a Section 504 disability may be expelled from school if the offense is not related to their disability. Before a child can be expelled a “Manifest Determination Conference” must be conducted, where a committee (including the parents and school personnel) discusses whether the disability “caused” the individual’s infraction of the school rule(s). If the disability did not “cause” the infraction, he can be expelled from school. If it did, a free appropriate public education must continue.
Violations of the school’s Drug and Alcohol Code of Conduct, however, are exempted from requiring a manifest determination conference (unless the student is also served in special education under the IDEA). Students violating this code of conduct are referred immediately to the school’s due process procedure afforded all students. Remember, students receiving special education may never be denied a free appropriate public education, so expulsion must always result in some instruction, even at a remote location.
Transition Services
Transition services (as required in special education) are not required by Section 504, but they are advised, especially when the child graduates from high school. Students matriculating from one school to another will have a plan in force, unless a committee (including the participation of the parents) determines otherwise. Adult students speak for themselves, but the parents must continue to be included.
Individuals transitioning to a post graduate facility (i.e. college, university, apprenticeships, etc) are responsible for seeking assistance by contacting the college or university’s office assisting individuals with disabilities. Some private schools, unfortunately charge for accommodations. This practice, no doubt will be tested in the courts.
School-related Activities
Section 504 follows a child in school-related activities such as athletics and club participation. Individuals with disabilities that wish to participate in extra-curricular activities must never be denied the opportunity to participate because someone has made a unilateral decision as to the quality of the participation or whether the child has a disability. Individuals with a disability must be given the opportunity to try-out without certain prejudices or bias as would be the case for all other students.
ADA/Section 504 and Adults
Section 504 and the amendments to the ADA prohibit discrimination against “qualified individuals with disabilities” in all employment practices, including job application procedures, hiring, firing, advancement, compensation and training. The term "qualified individual with a disability" means an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.
Essential Job Functions
Consideration shall be given to the employer's judgment as to what functions of a job are essential. If an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. A job description may not exclude individuals with disabilities or be written in such a manner to exclude their participation.
“Qualified Individual with a Disability”
Additionally, a “qualified individual with a disability” is an employee or job applicant who meets all documented skills, experience, and other requirements of a position and can perform the essential functions of the position with or without reasonable accommodation.
"Reasonable Accommodation"
The term "reasonable accommodation" may include: Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; Job restructuring; Part-time or modified work schedules; Reassignment to a vacant position; Acquisition or modification of equipment or devices; Appropriate adjustment or modifications of examinations, training materials or policies; The provision of qualified readers or interpreters; And other similar accommodations for individuals with disabilities.
Adults and Section 504
There are adults that impact the educational process, whether they are employees or adults wishing to gain access to the school’s programs, activities, services, or facilities. Individuals wishing to gain access to a school’s programs, activities, or services that may require accommodations must make contact with the facility leader or employer, and disclose information about the disability and the need for specific accommodations.
Grievance
Those that feel their concerns are not addressed should contact the district Section 504 Coordinator to address a grievance pertaining to potential discrimination. Complaints may also be filed with the Equal Employment Opportunity Commission or the designated state human rights agency.
Developing a Process for Determination
There is no process in law for determining whether an adult person qualifies for services. It is recommended that the public entity consider a process and document all attempts to assist in determinations. For example, Public entities, namely schools, should notify the public of their responsibilities with regard to Section 504. By doing this, the school will also be meeting requirements under the ADA as well. Public notices, such as the ADA Notice of Non-Discrimination in Employment, are critical.
Burden of Proof
The school district is urged to develop a referral form to document referrals. It is commonly felt that if an individual feels they have a disability, the burden of proof is on the individual. If the employer believes there is a disability, then the burden rests with them. As with school-aged students, document the questions and seek the answers. Medical issues can be resolved by seeking the advice of a physician with the help of the district’s health insurance plan. Many classified employees, however, do not have insurance, so if the district believes there is a disability, the burden of paying medical costs rests with the employer.
Section 504 and Adults
Once answers to questions have been gathered, it is time to meet in a conference. Answer the same questions as for students; namely: Is there a physical or mental impairment? Is it substantially limiting one or more major life activities? Is there a record or history of impairment? Is the individual regarded as having impairment? Do you have data to substantiate a decision and the type of accommodations that need to be provided?
Plan to Accommodate the Need
If the individual qualifies under Section 504/ADA, prepare a common sense plan to accommodate the needs. It’s always best to detail the need(s) and how you will accommodate the need. Remember, in cases of an employee, the individual’s file in this regard must not be kept in the district’s personnel file and must be retained in a separate file.
Summary
It was clearly Congress’ intention to make public education available to all. Legislation like Section 504 merely levels the “playing field” so individuals with disabilities can experience success in the general realm with or without modifications and/or accommodations. It is generally accepted that the public entities need to provide documentation of all their attempts not to discriminate against any individual. Over the years, it has become clear that students with disabilities must be educated in the general education classroom and that they must be successful in the general curriculum.
In this era of accountability, it is assumed that schools understand diversity as far as ability is concerned among their students. Unfortunately, this concept has not yet reached all educators. There still remain some leaders resistant to inclusion of all students despite their gender, size, age, national origin, race, or disability. Section 504 holds educators accountable for providing all students a chance for success.