SECTION
Regional Education Cooperative #2
PO Box 230
Gallina, NM 87017
Ph# 638-5491x140
Fax# 638-0131
Email:
Executive Director: Dr. Danny Trujillo
Member Districts:
Chama Valley, Cuba, Dulce, JemezMountain, MesaVista, Penasco, Questa
Associate Member Districts:
Espanola, Los Alamos, Pojoaque, Santa Fe, Taos
Table of Contents
Acknowledgements
I.Introduction and Purpose
- 504 Composition – Role
- Sources of Referral to 504 (students, employees, parents), Eligibility, Definition
- Recommended Reasons for Referral
- 504 Flowchart
- 504 Procedures
- Forms
- Pre-Referral Form
- Section 504/ADA Official Referral Record
- Notification of Meeting
- Meeting Guideline Checklist
- Evaluation of Data & Determination of Eligibility
- Due Process Notice & Forms (Student, Employee, Parent Rights)
- Accommodation Plan & Resource Sheets
- Review/Closure Form
Reference
Resources
Acknowledgements
Mercy Romero, Assistant Superintendent, DI
Penasco
Dino Recla, Elementary Counselor
Penasco
Dale Cisneros, Elementary Counselor,
Questa
Joe R. Atencio, Educational Consultant,
Chama
William G. Reese, MS/HS Principal,
Dulce
Augustin Valencia, Elementary Principal, 504 Coordinator,
JemezMountain
Felipe E. Blea, MS/HS Counselor,
Questa
Natalie Kannon, Special Ed. Teacher,
Cuba
I. INTRODUCTION & PURPOSE
Introduction
Section 504 of the Rehabilitation Act of 1973 and the American with Disabilities Act (ADA) are major federal legislative acts that are designed to protect the civil rights of individuals with disabilities. Both of these two federal laws are considered civil rights legislation for persons with disabilities. And, their intent is to prevent any form of discrimination based on disabilities. Individuals with disabilities, who are otherwise qualified, are protected. Section 504 applies to entities that receive federal funds, while the ADA applies to virtually every entity except churches and private clubs.
Section 504 and the ADA are having an incredible impact on public schools across the country. Originally Section 504, which was part of the broader 1973 rehabilitation act, was rarely mentioned by public school personnel and was rarely used to ensure equal educational opportunities. Public Law 94-142, which was passed in 1975, was the federal legislation that initially resulted in major changes in the way schools served children with disabilities. This law, which was accompanied by federal funds, was the focal point of schools in serving children with disabilities. Section 504, and the ADA, which provided no funding, was often considered less important for schools.
Recently, the role played by Section 504 and the ADA in schools has increased dramatically; no longer are schools able to ignore these two laws. As parents and advocated for children with disabilities learn more about Section 504 and the ADA, schools are having to respond to requests for protections and services. There are several reasons why Section 504 and the ADA have become more prominent in affecting services for children with disabilities, including:
The American with Disabilities Act (ADA), passed in 1990, mandated nondiscrimination on the basis of disabilities nationwide, without restriction to federal funding. The law was passed with a great deal of publicity increasing the awareness of individuals about nondiscriminatory legislation.
Certain disabilities not automatically resulting in eligibility for special education under Public Law 94-142 (now IDEA), such as attention deficit hyperactivity disorder (ADHD), have grown significantly in numbers. Because 504 and the ADA use a different definition of disability than IDEA, many are covered under these two acts.
Parents’ awareness that Section 504 and the ADA can be used to provide certain protections for children who may not be considered eligible for special education under IDEA has increased greatly (Jacob-Timm & Hartshorne, 1994).
The Office of Civil Rights (OCR) has increased enforcement efforts in the area of disability discrimination (Jacob-Timm & Harshorne, 1994)
School personnel are more aware that some students who are not eligible for services under IDEA are eligible for services under Section 504 and the ADA.
Attorneys have begun to realize that schools are often vulnerable to legal action under Section 504 and the ADA.
Regardless of the specific reasons for the increase in attention to Section 504 and the ADA, the reality is that more and more parents are beginning to present requests to schools for services and protections under these two laws. This fact has resulted in more school personnel having to learn about Section 504 and the ADA. As a result, schools must learn about the legal requirements of these acts and specific services that are required for children who are determined to have a disability, as defined by Section 504 and the ADA, inn order to provide appropriate services and protections to children and to avoid litigation.
An example of the increased attention to Section 504 can be seen as the legislation relates to children with ADHD. In 1991, the U.S. Department of Education issued a policy statement, in conjunction with the U.S. Office of Civil Rights and the Office of Elementary and Secondary Education, regarding the appropriate education for children with ADHD. The policy clarified the responsibilities of schools to provide appropriate programs for children with ADHD. The policy clarified the responsibilities of schools to provide appropriate programs for children with ADHD, noting that those not eligible for services under IDEA could still qualify for protections and services under Section 504 (Jacob-Timm & Hartshorne, 1994).
No otherwise qualified individual with a disability…shall solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
PURPOSE: The purpose of this manual is to: Provide school personnel with an overview of Section 504 and the ADA, and specific, practical guidelines for schools to use when working with children who are eligible for protections and services under Section 504 and the ADA. An overview of the requirements of 504 and the ADA is included, as well as specific actions that schools can initiate to ensure compliance. Sample letters, forms, and policies are included to provide school personnel with practical applications of the law.
II. 504 COMPOSTION - ROLE
Section 504 of the Rehabilitation Act and the Americans with Disabilities Act are both civil rights statues for persons with disabilities. Section 504 states that: The ADA is similar to 504 in that it prohibits discrimination against otherwise qualified individuals with disabilities.
Superintendent appoints 504 Compliance Officer. We strongly recommend only one compliance officer be appointed for each district. This officer will not be a counselor or special education teacher.
The coordinator will:
Coordinate the implementation of all aspects of 504 and ADA with each building principal & include at their discretion a 504 committee (if requested)
Serve as a resource person to district staff concerning interpretation of 504/ADA requirements
Keep up to date with any changes in 504 or the ADA that impact the school district
Collect and maintain materials and resources related to 504 and the ADA for staff use.
Coordinate staff in-service training related to 504 and the ADA
Coordinate the review and updating of the 504/ADA policy
Coordinate delivery of 504/ADA services to eligible students at the building level in cooperation with the building administrator
Receive parent/guardian requests for impartial hearings or complaint investigations
Coordinate the district’s “Child Find” for 504/ADA services
Keep the superintendent informed concerning issues related to 504” for 504/ADA services
Keep the superintendent informed concerning issues related to 504/ADA
Collect and process information/records related to 504/ADA services
Maintain a district-wide listing of students served under 504/ADA
Inform parents and employee of due process rights
- SOURCES OF REFERRAL
(Students, Employees, Parents)
Sources of Referral
1. Self-Referral
(B y parents, school staff, or students)
- SAT
- Other support teams unique to each school
- Any school staff or parent/guardian
Eligibility
Individuals (students, staff or parents) with disability or disabling conditions who do not qualify under Individuals With Disabilities Education Act (IDEA), which uses the following qualifications:
Mental retardation
Learning disability
Emotional disturbance
Orthopedic impairment
Hard of hearing
Deaf
Visual impairment
Blind
Autism
Traumatic brain injury
Other health impairment
Speech impairment
For section 504, individual(s) must be otherwise qualified by having a disability or disabling condition excluded by IDEA. The individual must have been able to accomplish tasks before disability or disabling condition set in, or has qualifications/skills/ability to do tasks independent of limitations due to disability.
Individuals being considered for 504 must have a physical or mental impairment, which substantially limits one or more of major life activities such as:
Caring for oneselfWalking
Seeing
Performing manual tasks
Hearing
Speaking
Breathing
Learning / Working
Sitting
Stooping
Reaching
Eating
Procreating
OHI that would not qualify under IDEA
Definition
The 504/ADA defines a physical or mental impairment as:
(A)Any physical 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; including cardiovascular; reproductive; digestive; genito-urinary; hemic and lymphatic; skin; and endocrine; or
(B)Any mental or physiological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities.
** PLEASE NOTE: Section B, similar to the categorical definition of disability found in IDEA. However, Section A, while including some of the categories found in IDEA, goes well beyond those specific areas in defining disability.
In order to be eligible for special education under IDEA, a student must have a categorical disability, and that the disability must result in the students needing special education. However, It must be remembered that under Section 504/ADA, a child can be determined to have a disability without a diagnosis (psycho-educational evaluation) in any specific disability category.
For 504 eligibility there must be substantial limits to performing major life activities determined by the following factors:
1)nature and severity of impairment;
Is the impairment mild or severe?
Does the impairment result in failure or the student’s not achieving near expected levels?
Does the impairment impact on a major life activity? If so, how?
2)duration or expected duration of impairment;
Will the impairment be of such short duration as to not cause significant problems?
Will the impairment cease impacting on the child without any intervention?
3)permanent or long-term impact resulting from the impairment
Will the impairment be short or long in duration?
If the impairment is of short duration, will it have a significant impact without intervention?
If the impairment will be long term, will the impact negatively affect the child’s status, academically, socially, emotionally, or behaviorally?
**Please remember that substantial limitation for 504 eligibility signifies lower than average performance in general population due to disability or disabling condition.
- RECOMMENDED REASONS FOR REFERRAL
Because the definition of disability drives eligibility for protections and services under 504 and the ADA, it is the basis for determining that receives services and protections. Since the definition used in these two laws differs significantly from the definition used in IDEA, different individuals are covered than would be eligible for special education services under IDEA. Those covered will include:
Students
Staff
Parents
Students Covered Under 504 and the ADA
As noted above, the broader definition of disability used in Section 504 and the ADA makes many children eligible for protections under the act that are not eligible for special education under IDEA. Martin (1992) suggests that the following types of disabilities are likely covered under Section 504 and the ADA but not under IDEA:
Students with ADD or ADHD
Students with learning disabilities who do not manifest a significant discrepancy between intellectual ability and achievement
Students who are transitioned out of special education programs
Students considered to be socially maladjusted
Students who have a history of drug and alcohol abuse
Students with health needs
Students with communicable diseases, such as AIDS
Because the definition of disability and the requirements for eligibility under IDEA are more restrictive than those used in 504 and the ADA, all children eligible for services under IDEA are eligible for protections under Section 504 and the ADA. However, there are many children eligible for services and protections under 504 and the ADA who are not eligible for services under IDEA.
While children served under IDEA do not need an individual accommodation plan under 504 and the ADA, there may be instances where discrimination under 504 and the ADA is an issue. For example, extracurricular activities, such as field trips, might result in a 504/ADA issue for students served under IDEA.
School personnel should remember that determining that a student has a disability, such as ADHD, is not a requirement for eligibility. “Because the law makes not mention of specific categories of disability or conditions considered as handicapping, evaluations for Section 504/ADA eligibility do not require the school to ascertain whether a specific disability is present in order for the child to be determined eligible for services. “Section 504 (and the ADA) only requires the presence of a physical or mental impairment that substantially limits a major life activity.” (Reid & Katsiyannis, 1995, p. 45) The laws do not provide an exhaustive list of these impairments.
After dealing with IDEA for many years, school personnel frequently have difficulty understanding that a child may be eligible for services, as disabled, without a specific disability category being attached to the child. The functionality of the definition and eligibility criteria require that students be looked at based on the impact of a disability, rather than the clinical nature of the disability itself. This means that school personnel, through the use of their professional judgment, have much greater flexibility in determining eligibility for 504 and the ADA services and protections than they have in determining eligible for IDEA services. In determining eligibility, it is advised that an LEA should request a Medical Provider’s recommendation for 504/ADA placement.
Staff covered by 504 and the ADA
In addition to students covered by Section 504 and the ADA, school personnel must also deal with adults who have disabilities under these two acts. School employees and parents of students in the school district may be covered. If a school employee has a disability covered under Section 504 and the ADA, then the school must make reasonable accommodations for the individual to enable him to perform the essential functions of the job. This means that for applicants with disabilities covered under 504 and the ADA, the school must determine if the individual can perform the essential functions of the job with reasonable accommodations.
Individuals with disabilities do not receive any preference in the job application process. Rather, their disability cannot be used as a reason for not giving them a job if they are the most qualified applicants. And, schools must ensure that all areas of employment, including announcing openings, the application process, interviews, selection of employees, payment of employees, and benefits, meet the equal treatment and opportunities requirements of Section 504 and the ADA.
If an employee develops a disability while working, the same standard of being able to perform the essential functions of the job with reasonable accommodations applies. In other words, if after becoming disabled an employee can no longer perform the essential functions of the job, with reasonable accommodations, then the school may terminate the individual. One reasonable accommodation that the school must consider before termination is transferring the individual to another position that he or she can perform with reasonable accommodations. Now ever, the school is not required to create a job that can be performed, nor terminate another employee so the person with a disability has a position.
Parents covered by 504 and the ADA
Parents with disabilities, who have children in a school district, are also eligible for certain protections under Section 504 and the ADA. For example, if a deaf parent wants to have a parent-teacher conference, the school must arrange for an interpreter and cannot charge the parent for the interpreter. Obviously, the parent needs to alert the school of this need, within a reasonable timeframe before the meeting. But, after making such a request, the school must provide an interpreter. If the meeting is a short interchange, without any substantial information going back and forth, then writing notes or using some technological aide may be a sufficient accommodation. However, if the meeting requires extensive dialogue, then an interpreter would be the necessary accommodation.
Another example would be a parent in a wheelchair who wants to observe his child in a physically inaccessible classroom. Given sufficient notice by the parent, the school would need to make accommodations that would enable the parent to observe his child. The simplest action would be to move the child’s classroom for the time the parent wanted to observe the child. Carrying individuals in wheel chairs is never considered an appropriate accommodation unless an emergency would dictate such actions.
When developing plans for Section 504 and ADA compliance, school personnel must remember that employees and parents of students may also be eligible for protections under these two laws. Not giving employees and parents equal access and equal opportunities may be a violation of their civil rights under these two federal laws.
V. 504 FLOWCHART