Keeping Up With Section 504

PROCEDURES

As most of us know, special education is one of the largest areas of litigation school districts face, and it is growing.  The regulations and procedures under the Individuals with Disabilities in Education Act [IDEA] and the Illinois State Board of Education are extensive, and working backwards from a due process complaint to develop a defense can be difficult. 

Unlike many student areas, in special education and under the laws and regulations granting the rights afforded to individuals with disabilities, the procedures matter just as much as the substance.  Section 504 of the Rehabilitation Act of 1973 is the federal statute that guarantees certain rights to individuals with disabilities.  Section 504 is separate from the IDEA, but we need to think of their separate obligations together, most especially because the Department of Education views a failure to implement IDEA's IEPs as disability discrimination under Section 504 - and violations of Section 504 are subject to money damages.  Basically, Section 504 prohibits discrimination on the basis of disability in any program or activity receiving Federal financial assistance.  It guarantees a "free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap."  34 C.F.R. §104.33(a).  It then defines an appropriate education as the provision of regular or special education and related aids and services that:

1.  Are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met.

2.  Are based upon adherence to procedures that satisfy the requirements of 34 CFR 104.34 [educational setting], 34 CFR 104.35 [evaluation and placement], and 34 CFR 104.36 [procedural safeguards].

Because these procedures are so highly valued in creating a culture that successfully educates students with disabilities and involves families in any and all decision making processes, take a moment to consider the 504 procedures of which you, or any administrator in your school or district should have a solid understanding:

1. Who is the 504 Coordinator?
2. Who makes up a 504 Team?
3. Who sends out our notices?  When?  How?
4. How are we meeting our child-find duties?
5. Do we provide parents with procedural safeguards?  How?
6. What are our 504 grievance procedures?
7. Who reviews the 504 plans in place?

Furthermore, because of the significant paradigm shift caused by the enactment of the ADA Amendments Act in 2009, any procedures related to the identification of student with disabilities pre-2009 are suspect.

In a recent Illinois decision, the District's Director of Special Services was not familiar with the Section 504 policies and procedures, and neither were the guidance counselors that the Director stated were charged with implementing Section 504 related evaluations and placements.  Community High Sch. Dist. 155 (IL), 51 IDELR 228 (OCR 2008).  Besides the cost of handling the OCR investigation, the District, similar to most districts that face investigations due to a claim of Section 504 violation, faced a resolution agreement requiring not only child-specific compensatory education, but annual Section 504 training and extensive reporting requirements. Each District can avoid such costs by assuring they have updated Section 504 policies and procedures and are able to easily answer the seven questions above.

TRACKING ACCOMODATIONS

This recent case demonstrates the need to further develop procedures once "504 plans" are put into place:

K.K. v. Pittsburgh Public Schools, 114 LRP 41205 (3d Cir. 09/22/14, unpublished)

A student with gastroparesis and an anxiety disorder has a Section 504 plan that includes an accommodation to enter and exit school as needed when she is having medical issues.  The student's team is unaware that at some point the student begins to retreat to the library for portions of the day and misleads staff into thinking she is allowed to do so under her Section 504 plan.  The 504 team revises her accommodation plan and requests permission to perform a special education evaluation and speak with the student's psychologist, which her parent refuses.  The court recognized that the district failed to detect that the student was retreating to the library, but determined there was no Section 504 violation.

In this situation, school staff might have avoided litigating these problems by developing a system to track the student's use of her accommodation.  If a student's plan includes an accommodation excusing her from class for a period of time, set clear parameters associated with that accommodation so it is implemented as the team intends. Include where the student will go when she leaves class, what activities she'll be doing, who she needs to contact, and when she should return to class.

Here are tips for tracking accommodation implementation:

Gather data on the use of an accommodation -- know how long the accommodation is used, or how often.  This information can help staff realize that an accommodation is no longer necessary or that it's not being used the way the team intended. For example, if a student leaves class because of anxiety, rather than a medical emergency, the team might need to reevaluate the student or consider additional accommodations to address the anxiety.  With an anxiety disorder, like in the 3rd Circuit decision above, schools might want to work with the child in regard to strategies, put in place reinforcements, and if the child needs to leave class, find a way that the student can continue doing work elsewhere at that time.

Collecting data can also help reveal an ongoing pattern, such as the student leaving during the same class each week.  That may indicate the need to follow up with the teacher informally to see what is really going on.

Set parameters for when, and how, a student may access a particular accommodation.  Rather than delineating in the 504 plan that the student is to use the accommodation "as needed," consider using the phrase "as determined by ..." to help teams set conditions for when an accommodation should be implemented.  For example, a 504 plan may state that a student can leave a class activity to go to a counselor's office when he feels anxious as determined by a discussion between the student and his teacher.  Everyone involved needs a sense of how the "as needed" is determined.  Also, designate a specific location where the student will go.  If you know a student avoids class either willfully or as a result of a disability, include more structure in the accommodation plan. Consider a method for tracking when the student leaves class and when he arrives at the designated location.  The student could sign in and out or indicate to the teacher that she is leaving so there's a record.  Then, the student's teachers can send an email to the case manager at the end of each week indicating when the student needed to leave class and for how long.  The point person should be a person knowledgeable about the student and who is able to follow up if it looks like there's an ongoing pattern or there's an unanswered question [about the student's absence from class].

The team might conduct a functional behavioral analysis to determine why the student is leaving class more than expected and provide accommodations or services to address the cause if it's related to a disability.

Taking these steps to develop a routine understanding and practice of Section 504 can prevent major issues and build a culture of trust around disability issues that lead to fewer formal complaints in your District.  Remember:  a student's rights under Section 504 are just as valuable as under the IDEA, and must be given the appropriate level of deliberation, delivery, and deference.