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IDEA vs. Section 504 Guidelines for School Level 504 Coordinators
Davina S. Woods Hancock County Schools
504 Compliance Officer
Fagen Friedman & Fulfrost LLP
1
Overview
• IDEA and Section 504 compared
• Moving between Section 504 and the
IDEA
• Students at the Borders: SLD, ADD,
Physical Disabilities
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IDEA vs. Section 504
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Eligibility
FAPE
Process & Documents
IDEA vs. Section 504 Eligibility Under IDEA
Two questions:
• Does the student have a disability in
an IDEA eligibility category?
• Does the student require special
education and related services?
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IDEA vs. Section 504 Eligibility Under Section 504
Two questions:
• Does the student have a physical or
mental impairment?
• Does the impairment substantially
limit a major life activity?
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IDEA vs. Section 504 Eligibility Under Section 504
Physical or Mental Impairment: “Any physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; specific sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genitor-urinary; hemic and lymphatic; skin; and endocrine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.”
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34 C.F.R. § 104.3(i).
cont.
IDEA vs. Section 504 Eligibility Under Section 504
• If complete medical evaluation is
necessary to determine eligibility, parent
may be asked to obtain and fund
evaluation
• If parent refuses, district must fund
evaluation
Fagen Friedman & Fulfrost LLP
7
Compton (CA) Unified School District (OCR 2008)
cont.
IDEA vs. Section 504 Eligibility Under Section 504
Substantially Limits: New definition
– Rejection of court’s
“severely restricts”
– “Substantially limits” to be construed
broadly
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cont.
Pub.L. No. 110-325 (September 25, 2008) 122 Stat. 3553;
29 U.S.C. § 705; 42 U.S.C. § 1210
IDEA vs. Section 504 Eligibility Under Section 504
Episodic Disabilities and Remission:
Ask: Would impairment substantially limit
a life activity when active?
Fagen Friedman & Fulfrost LLP
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cont.
Pub.L. No. 110-325 (September 25, 2008) 122 Stat. 3553; 42 U.S.C. § 1210
IDEA vs. Section 504 Eligibility Under Section 504
Mitigating Measures:
• Cannot consider ameliorative effects of
mitigating measures (i.e. medication,
hearing aids, learned behaviors,
modifications)
• EXCEPT eye glasses and contact
lenses
Fagen Friedman & Fulfrost LLP 10
cont.
Pub.L. No. 110-325 (September 25, 2008)122 Stat. 3553; 42 U.S.C. § 1210
Practice Pointer
Until districts receive further guidance:
– If a student would be eligible when
impairment is active, make the student
eligible
– Create a plan to address student’s needs
when the impairment is active
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IDEA vs. Section 504 Eligibility Under Section 504
Major Life Activities:
• Under the new law, major life activities include (but are not limited to) – Caring for oneself, performing manual tasks,
seeing, hearing, eating, sleeping, walking, standing, lifting, speaking, reading, learning, concentrating, thinking, communicating and working
• Under the regulations previously developed major life activities included “learning”
Fagen Friedman & Fulfrost LLP 12
cont.
Practice Pointer
• When determining eligibility under
Section 504, determine whether any
major life activity is substantially limited
• Do not limit consideration to “learning”
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Practice Pointer
The following behaviors are not themselves a physical or mental impairment:
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– Lack of motivation
– Excessive absences
– Early dismissal
– Inadequate classroom
attendance
– Difficulties at home
– Incomplete work
Practice Pointer
Be methodical and document your method!
Always ask two questions when determining
Section 504 eligibility:
1) Does the student have a physical or mental
impairment?
2) Does that impairment substantially limit a major
life activity?
Don’t forget to properly document the responses!
Fagen Friedman & Fulfrost LLP 15
IDEA vs. Section 504 FAPE
IDEA: – Specially-designed instruction
– No cost to parent
– Meet unique needs of student
– Educated in least restrictive environment
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20 U.S.C. §§ 1402(29), 1412(a)(5);
Board of Educ. of the Hendrick Hudson Central School Dist. v.
Rowley (1982) 458 U.S. 176, 200
IDEA vs. Section 504 FAPE
Section 504:
– Regular or special education and related aids and services designed to “meet individual educational needs of handicapped persons as adequately as the needs of non-handicapped persons.”
– Educated in the least restrictive environment
Fagen Friedman & Fulfrost LLP
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34 C.F.R. §§ 104.33, 104.34; J.D. v. Pawlet School Dist. (2nd Cir. 2000) 224 F.3d 60; 34 C.F.R. Part 104, Appendix A. (Emphasis added)
IDEA vs. Section 504 FAPE
• FAPE requirements in IDEA and Section
504 regulations are different
• Section 504 requires comparison between
meeting needs of disabled and
nondisabled students
• IDEA has an absolute standard – providing
some educational benefit
Fagen Friedman & Fulfrost LLP 18
Mark H. v. Lemahieu (9th Cir. 2008) 513 F.3d 922
IDEA vs. Section 504 Process & Documents
IDEA: Notice of Procedural Rights
District must provide notice of rights:
– Upon initial referral or evaluation
– When a complaint is filed
– When disciplinary action taken
– At parent request
Fagen Friedman & Fulfrost LLP 19
34 C.F.R. §§ 300.500 et seq.
IDEA vs. Section 504 Process & Documents
IDEA: Evaluation
• Evaluate in all areas of suspected disability
• Adhere to strict timelines
• Use a variety of assessment tools
• Evaluations by trained and knowledgeable persons
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20 U.S.C. § 1414(b); 34 C.F.R. § 300.304
IDEA vs. Section 504 Process & Documents
IDEA: IEP Team • Team makes eligibility, placement, and service
determinations
• Required members: – Parent
– General education teacher
– Special education teacher
– Administrator
– Individuals who can interpret assessment results
– Other individuals with knowledge or special expertise regarding child
– When appropriate, the student
Fagen Friedman & Fulfrost LLP 21
20 U.S.C. § 1414(d)(1)(B)
IDEA vs. Section 504 Process & Documents
IDEA: Appropriate Document – IEP
• Every eligible student must have an IEP
• Contents of the IEP:
– Eligibility
– Educational needs
– Present levels of performance
– Goals/objectives
– District’s offer of FAPE
Fagen Friedman & Fulfrost LLP 22
20 U.S.C. § 1414(d)
IDEA vs. Section 504 Process & Documents
Section 504 Required Procedures:
• Notice
• Opportunity to examine records
• Impartial hearing with opportunity for
parent to be represented by counsel
• Review procedure
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34 C.F.R. §§ 104.33, 104.34, 104.35, 104.36
IDEA vs. Section 504 Process & Documents
Note:
• Typically, OCR does not investigate
substance of educational decisions
• Focus is on whether district followed
proper procedures
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IDEA vs. Section 504 Process & Documents
Section 504: Evaluation
• School district must develop standards and
procedures to ensure that assessment materials are:
– Validated
– Administered by trained personnel
• to reflect student’s ability – not impaired skill
– Designed to assess specific areas of educational
need
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IDEA vs. Section 504 Process & Documents
• When conducting evaluation, school district
must:
– Draw upon variety of sources
– Create procedures to ensure information is
documented and considered
– Ensure each placement decision is made
by the appropriate team
Fagen Friedman & Fulfrost LLP 26
34 C.F.R. § 104.35; Gloucester County (VA) Public Schools (OCR 2007)
cont.
IDEA vs. Section 504 Process & Documents
Section 504: Decision Team
• Eligibility and placement decisions
made by “a group of persons, including
persons knowledgeable about the
child.”
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IDEA vs. Section 504 Process & Documents
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• District must designate a “Section 504 Coordinator”
Colorado Springs (CO) School Dist. #11 (OCR 2008)
cont.
IDEA vs. Section 504 Process & Documents
Section 504: Appropriate Document
• Districts most commonly develop a
Section 504 plan
• May develop an IEP to comply with
Section 504’s FAPE requirement
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Practice Pointer
• A Section 504 plan is not a
“consolation prize”
• Emphasize appropriateness and benefits
of Section 504 plan
• IDEA services may not be appropriate
• IDEA compliance is one way of meeting
section 504
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Moving Between
Section 504 and the IDEA
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Moving Between Section 504 and the IDEA
What should a district do when a
student’s Section 504 plan is no longer
appropriate?
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Moving Between Section 504 and the IDEA
Consider:
– Re-evaluating student
– Modifying the Section 504 placement
and/or services, or
– Convening IEP team meeting to
determine IDEA eligibility
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Moving Between Section 504 and the IDEA
CAUTION
Under Section 504, districts must
evaluate prior to initial placement or
significant change in placement
– Error on side of evaluation if moving
student into a more or less restrictive
setting Fagen Friedman & Fulfrost LLP
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20 U.S.C. § 1414; 34 C.F.R. § 104.35
Moving Between Section 504 and the IDEA
Parent Rejects Section 504 Plan
Scenario:
– District offers Section 504 plan
– Parent rejects
– Parent requests IEP
What should you do?
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cont.
Moving Between Section 504 and the IDEA
• Implement Section 504 plan without
parent consent, if district’s policy
allows, and
• Conduct IDEA evaluation, if this is
what parent wants
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Practice Pointer
Determine parent’s underlying concern
– Is parent requesting IEP or a special
education assessment?
– Discussion with parent may resolve
concerns and avoid assessment process
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20 U.S.C. § 1414
Moving Between Section 504 and the IDEA
From IDEA to 504 scenarios:
– Student no longer eligible under IDEA
– Student found ineligible under IDEA
– Parent revokes consent for IDEA services
*Be prepared for parent request for Section 504 services
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Moving Between Section 504 and the IDEA
If an IEP team finds a student ineligible
under the IDEA, can the same team
immediately thereafter find the student
eligible for Section 504 services?
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Moving Between Section 504 and the IDEA
YES -
• So long as student has a mental or physical impairment that substantially limits a major life activity
• Conducting consecutive IEP and Section 504 meetings is okay
HOWEVER . . .
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Moving Between Section 504 and the IDEA
CAUTION:
• It’s better to adjourn IEP meeting and convene Section 504 meeting at later date
• This will avoid:
– Perception of “consolation prize”
– Potential for excluding necessary persons
– Risk of undertaking wrong analysis to determine eligibility
– Failure to properly notice Section 504 meeting
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Letter to Anonymous (OCR 1991)
Moving Between Section 504 and the IDEA
Rejection of IDEA:
• Parent not required to accept initial
IDEA services
• Parent may revoke prior consent
• If parent revokes, district may not
continue to provide special education
and related services
Fagen Friedman & Fulfrost LLP 42
34 C.F.R. § 300.300(b)(4).
Moving Between Section 504 and the IDEA
If the district offers a FAPE through the
IDEA and the student’s parent refuses
to consent to the initial provision of
IDEA services or revoke consent to
IDEA services, is the district required to
create a Section 504 plan?
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Moving Between Section 504 and the IDEA
Satisfy the IDEA
• Districts are responsible for:
– Creation of appropriate IEP
• Districts are not responsible for:
– Obtaining parent consent to the IEP
MAKE THE OFFER
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Moving Between Section 504 and the IDEA
Section 504 Plan?
• Probably not required, if parent has
rejected IEP
• But certainly permissible
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Moving Between Section 504 and the IDEA
Child Find
District must:
– Actively seek out students eligible for
Section 504 services, including those
attending private schools
– Conduct Section 504 evaluation,
if appropriate
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34 C.F.R. §§ 104.31; 104.35(a)
Students at the Borders
Fagen Friedman & Fulfrost LLP 47
IDEA? Section 504? Or General Ed?
SLD, ADD/ADHD, Physical Disabilities
Students at the Border SLD: IDEA Eligibility
Student has: – A “disorder in one or more of the basic
psychological processes involved in the understanding or in using language, spoken or written.”
– Manifests in an “imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations.”
Student requires special education and related services
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20 U.S.C. § 1401(30)
Practice Pointer
Reading Fluency
• The 2006 federal regulations added reading fluency skills to list of qualifying areas for eligibility determinations
• If district uses either RTI or discrepancy model, district must determine whether student is performing adequately for age/grade level in all qualifying areas, including reading fluency skills
Fagen Friedman & Fulfrost LLP 49
34 C.F.R. § 300.309
Students at the Border
SLD: Section 504 Eligibility
Two Part Analysis:
• Physical or mental impairment
– Comments to Section 504 Regulations
state that SLD constitutes a physical or
mental impairment
• Must substantially limit a major life
activity
Fagen Friedman & Fulfrost LLP 50
20 U.S.C. § 1401(30); 34 C.F.R. Part 104, Appendix A
Practice Pointer
A student may not qualify under
Section 504 if he/she is successful in
the general education setting without
special education supports, despite
demonstrating a discrepancy
between ability and performance
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Students at the Border SLD: Section 504 Eligibility
Facts - Fourth grade:
• SST team referred student for comprehensive special education assessment
• IQ score of 92
• Achievement scores ranged from 85 to 110
• Assessor concluded no severe discrepancy between ability and achievement
• District found student ineligible for IDEA services
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Student v. Tracy Joint Unified School District (OAH 2007)
Students at the Border SLD: Section 504 Eligibility
Facts - Fifth grade:
• GPA ranged from 2.0 to 2.5
• District found student ineligible for IDEA
services
• Parent disagrees
• Obtained IEE that concluded student qualified
as SLD due to processing disorders and a
severe discrepancy in math calculations
Fagen Friedman & Fulfrost LLP 53
Student v. Tracy Joint Unified School District (OAH 2007)
cont.
Students at the Border SLD: Section 504 Eligibility
OAH Ruling:
No severe discrepancy based on private
and district assessments
Student ineligible for IDEA services
under category of SLD
Fagen Friedman & Fulfrost LLP 54
cont.
Student v. Tracy Joint Unified School District (OAH 2007)
Students at the Border SLD: Section 504 Eligibility
Eligible under Section 504?
Probably not. Unlikely that there is a
physical or mental impairment – Earned average grades
– Failed to show discrepancy between ability and
performance
Fagen Friedman & Fulfrost LLP
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Student v. Tracy Joint Unified School District (OAH 2007)
cont.
Students at the Border SLD: Section 504 Eligibility
Facts:
• Student originally eligible as SLD
• Convened IEP meeting to review additional assessments
• Student skills commensurate with overall cognitive functioning
• Received passing grades
• Team concluded no severe discrepancy or processing deficiency
• Ineligible under category of SLD
Fagen Friedman & Fulfrost LLP 56
Lancaster School District v. Student (OAH 2007)
Students at the Border SLD: Section 504 Eligibility
OAH Ruling:
Ineligible for IDEA services under
eligibility category of SLD
Fagen Friedman & Fulfrost LLP 57
cont.
Lancaster School District v. Student (OAH 2007)
Students at the Border SLD: Section 504 Eligibility
Eligible under Section 504?
Probably not. Unlikely that there is a
physical or mental impairment – Earned average grades
– Failed to show discrepancy between ability and
performance
Fagen Friedman & Fulfrost LLP
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cont.
Lancaster School District v. Student (OAH 2007)
Students at the Border ADD/ADHD: IDEA Eligibility
• Student qualifies for IDEA services under “Other Health Impaired” if he/she has: – Limited strength, vitality or alertness, including a heightened
alertness to environmental stimuli, that results in limited alertness with respect to the educational environment, that is due to chronic or acute health problems, such as attention deficit disorder, or attention deficit hyperactivity disorder, among others, which adversely affects a student’s educational performance
• Student requires special education and related services
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20 U.S.C. § 1401(3); 34 C.F.R. § 300.8(c)(9)
Students at the Border
ADD/ADHD: Section 504 Eligibility
Two Part Analysis:
• Physical or mental impairment
– According to OSERS, ADD and
ADHD constitute a physical or mental
impairment
• Must substantially limit a major life
activity
Fagen Friedman & Fulfrost LLP 60
Office of Special Education and Rehabilitative Services (OSERS 1991)
Students at the Border ADD/ADHD: Section 504 Eligibility
Facts:
• In March 2006, parents requested special education assessment due to possible ADD or ADHD
• Health assessment did not show impulsive behavior
• In class, student showed lack of concentration
• Student performed at average academic level
• In July 2006, student obtained medical diagnosis of ADHD
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Santa Monica-Malibu Unified School District (OAH 2006)
Students at the Border ADD/ADHD: Section 504 Eligibility
OAH Ruling:
Student had ADHD based on medical
diagnosis
However, student ineligible under IDEA
because condition did not “adversely
affect educational performance”
Fagen Friedman & Fulfrost LLP 62
Santa Monica-Malibu Unified School District (OAH 2006)
Students at the Border ADD/ADHD: Section 504 Eligibility
Eligible under Section 504?
Probably not.
• Due to medical diagnosis, OSERS would
consider student to have physical or mental
impairment
• However, no showing of substantial limitation
of a major life activity
Fagen Friedman & Fulfrost LLP
63
cont.
Students at the Border ADD/ADHD: Section 504 Eligibility
Facts:
• Second grade – Diagnosed with ADHD
– Participated in general education setting
– Assessed for and placed in GATE program
– Scored average or above on standardized and ability tests
• Fourth grade – Earned As, Bs, and Cs
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Student v. Bonita Unified School District (OAH 2006)
Students at the Border ADD/ADHD: Section 504 Eligibility
Facts: • Fifth grade
– Scored “basic” and “proficient” on STAR testing
– Earned all As and Bs
– Promoted to middle school
• Sixth grade – Scored “basic” and “proficient” on STAR testing
– Earned a C in English and a D in Social Studies
• Seventh grade – Scored “proficient” in STAR testing
– Earned all Cs
– Parents advised district of ADHD and anxiety disorder
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cont.
Students at the Border ADD/ADHD: Section 504 Eligibility
OAH Ruling: Despite ADHD diagnosis, student
ineligible under IDEA
Failed to show need for special education and related services
Poor grades were attributed to failure to complete homework, not inability to learn
Fagen Friedman & Fulfrost LLP 66
Student v. Bonita Unified School District (OAH 2006)
cont.
Students at the Border ADD/ADHD: Section 504 Eligibility
Eligible under Section 504?
Possibly.
• Student has a physical or mental impairment
• Student may be able to show that the ADHD substantially limits a major life activity, such as the ability to “concentrate” or “focus”
Fagen Friedman & Fulfrost LLP 67
Student v. Bonita Unified School District (OAH 2006)
Students at the Borders Physical Disabilities
IDEA Eligibility
• Qualifying physical disabilities: – Deafness
– Hearing impairment
– Blindness
– Other visual impairments
– Orthopedic impairments
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Students at the Borders Physical Disabilities
Section 504 Eligibility
• Student must have a physical or mental impairment that substantially limits a major life activity
– Some physical impairments may not be obvious
• Cannot take into account mitigating measures
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Students at the Borders Physical Disabilities
Section 504 Discrimination
• May not prevent eligible Section 504
student from participating in
programs/activities due to inaccessibility to
district facilities
• Must provide reasonable accommodations
to allow student to participate in
programs/activities outside of school day
Fagen Friedman & Fulfrost LLP 70
34 C.F.R. §§ 104.4; 104.12; 104.21
Students at the Borders
Section 504 & IDEA are safety nets.
However, the best outcome is
when they are not needed!
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Thank you!
Davina S. Woods,504 Compliance Officer
Hancock County Schools
706.444.7403
72
Fagen Friedman & Fulfrost LLP