Non-Discrimination Procedures - Section 504

 

Within a reasonable time (the sixty instructional days allowable under Indiana Article 7 is an appropriate standard) of the initiation of the referral, the building principal or designee will convene a Section 504 Conference Committee meeting. The purpose of this conference is to discuss the information gathered, determine whether the student has a disability that makes him/her eligible for services under Section 504 (i.e., has a physical or mental impairment that substantially limits one or more major life activities), and if so, determine the need for special accommodations and appropriate placement.

If the student is determined eligible, the committee will develop and implement an accommodation plan. The plan will include reasonable accommodations that may be necessary for the student to receive a free and appropriate public education (FAPE). The purpose of an accommodation plan is to ensure equal access to school activities, remove barriers to educational opportunity and provide, to the degree possible, a level playing field for student learning.

At every Section 504 conference, the principal/designee must explain verbally and offer a written copy of the "Parent/Student Rights". The meeting will be documented on the Section 504 conference report form. The principal/designee will request written permission from the parents to implement the accommodation plan.

The 504 Conference Committee should include at a minimum the building principal (or designee), and the parent/guardian. Additionally, the committee may include general education teacher(s), the student, assessment team members, the school nurse, other persons with knowledge of the student or suspected disability, and any other individual the parents may wish to bring to the conference. Section 504 requires that the placement decision be made by a group of persons knowledgeable about the child, the meaning of the evaluation data, and the placement options. Two or more persons may constitute a group. In some cases, a parent and the principal/designee are sufficient.

The Conference Chairperson (principal or designee) has the following responsibilities:

1. fully explain the Parent/Student Rights;
2. gather information;
3. organize the presentation of the data;
4. coordinate the deliberation of Section 504 eligibility;
   1. does the student have a physical or mental impairment?
   2. does that impairment "substantially limit one or more major life activities?”
   3. does the team have the data to justify a disability determination?
   4. is the student a qualified individual with disabilities within the meaning of Section 504?
5. determine needs, accommodations, and services for the student;

Reasonable accommodations may include, but are not be limited to:

• adjusting testing procedures (i.e., reduce time test anxiety, eligibility for remediation/retention);
• individualize classroom assignments, homework;
• record lectures and student responses;
• utilize computer or other assistive technology;
• provide a buddy to take notes;
• provide an interpreter (for students or adults);
• modify materials, adjust the reading level;
• modify the organization of the student's day;
• facilitate or modify parent/student/teacher/staff communication;
• modify school procedures (e.g., provide additional time for passing between classes, adjust transportation, or approve early dismissal).

The reasonable modifications will be individualized to meet the needs of the student.

1. document the meeting, the committee's recommendations, and the parent/guardian's written permission.

Copies of the Section 504 Conference Committee Report and Accommodation Plan are to be distributed to the student cumulative folder, the parent and to the director of exceptional student education.

The committee will reconvene at least annually to review available data and revise, if necessary, the accommodation plan for the student. 

Evaluation

Any student being considered for possible 504 eligibility must be evaluated prior to consideration by the Section 504 Conference Committee.

An evaluation is required in every instance where it is believed that a student may be an individual with disabilities under Section 504. The principal or his/her designee will meet with the parent/guardian and others, if necessary, to review the referral or other documents received and to carefully consider them. It is possible also that the school may need to consider additional evaluations to determine the possible need for education accommodations.

The building principal or his/her designee will coordinate the gathering of relevant information necessary to assist in the identification and/or justification of a possible 504 disability.

Many times, a student has been previously evaluated by a physician or other outside evaluator. In such cases, the school must decide if additional evaluation is required prior to the Section 504 Conference Committee meeting. If no additional evaluation is required, the committee may proceed with the conference on the basis of the outside evaluation. However, while the school must consider the evaluation results, the 504 committee is not required to accept the evaluation conclusions or recommendations.

The evaluation requirements to determine 504 eligibility are not nearly as strict as those under the IDEA. A comprehensive educational evaluation may not be needed for all students, especially for medical issues. In many cases, the Section 504 evaluation may simply consist of staff persons reviewing and interpreting existing school records, including anecdotal evidence, observations, prior testing, grades, standardized test scores, and other data to determine if the student qualifies for accommodations in the classroom. Classroom teachers can provide formal or informal evaluation data. The least the school would want is a statement of current performance with samples of the student's work. It is important, however, that the school district do whatever is necessary to gather evaluative data to support its recommendations.

Whenever the school requests outside diagnostic information or evaluation, the school is responsible for payment. Principals are urged to exhaust all efforts locally prior to seeking an outside (independent) opinion. It is not necessary or mandated that the school district secure a doctor's opinion. However, medical input may be necessary when medication or medical procedures are involved. It is suggested that the school nurse be included in all medical concerns.

In cases where the school decides a locally administered educational evaluation is needed, the principal should discuss with the parent, school psychologist, and others as necessary, the nature of the problem and the data needed. In these cases, a referral for special education evaluation under Indiana Article 7 is a more appropriate procedure for addressing the issues presented. The school should consult the Special Education Procedural Manual for the process for initiating a multidisciplinary evaluation.

Once a referral is initiated, the school should follow the timelines established under Article 7.

When is an evaluation for Section 504 necessary?

In general, an evaluation is necessary prior to the school conducting a Section 504 Conference Committee meeting which proposes to provide or deny accommodations and services for a student with a suspected disability. An evaluation is also required when the school proposes to make a significant change in the accommodations and services provided to a student with a disability.

Events which might trigger an evaluation include, but are not limited to the following:

• a parent/guardian requests an evaluation (The school district has the right to refuse to evaluate, but must provide the parent/guardian with the right to an impartial hearing to challenge the refusal.),
• receipt of an outside evaluation or diagnostic exam suggesting a disability,
• a student's return to school after a serious illness or injury,
• a student exhibits signs of a chronic health condition,knowledge of a physical or mental impairment which may substantially limit a major life activity, e.g., diabetes, hypoglycemia, ADHD, school phobia syndrome, severe allergies, leukemia, cancer, heart disorders, and knowledge of the need for special medical procedures such as catheterization, injection of insulin, or administration of medications

Re-Evaluation

Students receiving services through Section 504 should be re-evaluated periodically.

While there is no requirement that a re-evaluation take place on an annual basis or even every three years, the student's needs must be re-evaluated on a regular basis. The conference committee should make this determination as part of the student's accommodation plan. All re-evaluations for 504 services will be discussed at the annual review unless a reconvening of the committee prior to the review is warranted. The re-evaluation may consist of new information or a review and discussion of existing evaluation and data. 

Eligibility

In general, students with physical or mental impairments which substantially limit major life activities (especially learning) will be eligible for special education services under Indiana Article 7 and the Individuals with Disabilities Education Act (IDEA). However, there may be some students who qualify for accommodations under Section 504 who do not qualify under Article 7 or the IDEA.

The presence of a disability alone does not automatically qualify the student for protection under Section 504. The impairment must also substantially limit one or more major life activities.

Likewise, the effects of self-administered mitigating factors which effectively control the impairment must be considered in determining if the impairment is substantially limiting. For example, a student with a visual impairment which is mitigated by corrective lenses to within normal limits, would not be considered as having a substantially limiting impairment in the major life activity of seeing. However, accommodations which the school provides which may have the effect of mitigating the impairment would not necessarily exclude the student from eligibility under Section 504.

Students who are determined to be ineligible for services under Article 7 are not automatically eligible for accommodations under Section 504. There must be an impairment which is substantially limiting a major life activity. It is appropriate, however, for an Article 7 Case Conference Committee to consider the question of Section 504 eligibility following its determination that a student is ineligible under Article 7.

Ultimately, the determination of eligibility is made by the Section 504 Conference Committee and must be based upon available evaluative and observational data. In many cases, the evaluative data will be provided by the parents in the form of previously conducted medical or psychological evaluations or diagnoses. The committee may determine that, along with its own observational or school performance data, no other evaluation is necessary. Or, it may determine that additional evaluative data is necessary in order to make a determination. If the school requires additional evaluations to make an eligibility determination, a referral must be initiated and the school will bear the cost of the evaluation. The Section 504 Conference Committee must consider and weigh all evaluation data in making the eligibility determination. However, the committee is not obligated to agree with or follow any recommendations from evaluators which are not consistent with Section 504 eligibility requirements or sound educational practices. The committee, in making its eligibility determination, must consider not only the presence of an impairment, but also the question of substantial limitation in a major life activity as a result of the impairment. Both of these factors must be present for the student to be considered by the committee as eligible for services under Section 504.

While other students may be eligible under Section 504 because they have a record of an impairment, or are regarded as having an impairment, such eligibility is limited to the anti-discrimination provisions of the law. Without a current impairment, there is no educationally related need and no eligibility for educational services. 

Discipline

Neither the general issue of discipline nor discipline in the form of suspension and expulsion is directly addressed by Section 504, the ADA, or the implementing regulations.

However, several memoranda from the Office of Civil Rights (OCR) address these issues and provide important guidance. The first memo is entitled "Long-term Suspension or Expulsion of Handicapped Students” and was issued on October 28, 1988. The second memo entitled "Suspension of Handicapped Students - Deciding Whether Misbehavior Is Caused By a Child's Handicapping Condition," November 13, 1989, provides supplemental guidance on the issues of suspension and expulsion.

Section 504 at 34 CRF Sec. 104.35 (a) requires that a student with a disability be evaluated before a significant change is made to his or her placement. Schools should use "normal reasonable procedures, short of a change in placement" for students who pose a threat of danger to themselves or others (October, 1988). In summary, OCR states the following policy:

1. Expulsion whether permanently or for an indefinite period or a suspension for more than 10 consecutive school days is considered to be a "significant change in placement" under Reg. 104.35 (a).

2. Reg. 104.35 (a) or a "significant change in placement" would apply to a pattern of exclusions created by a series of suspensions that are each for periods of 10 days or fewer. A series of short suspensions (i.e., nine days + eight days + eight days + nine days) may not be used to avoid the Supreme Court's prohibition against suspensions of 10 days or longer for students with disabilities created in Honig v. Doe, 108 S. Ct. 592 (1988).

"The length of suspension, the proximity of the suspensions to one another, and the total amount of time the child is excluded from school" are among the factors that should be considered on a case-by-case basis in determining whether a series of exclusions has resulted in a "significant change in placement."

3. A school must first conduct a reevaluation of the student before implementing an exclusion that amounts to a "significant change in placement."

4. It is advisable once a student approaches an aggregate of ten suspension days, to reconvene the conference committee. As a first step, the school must determine, "using appropriate evaluation procedures," whether there is a causal relationship between the student's behavior and the student's disability. A §504 student may not be suspended for more than 10 days unless a knowledgeable group of persons has determined that the misconduct is not a manifestation of the student's disability. It is advisable that if the placement data (evaluations) are no longer valid, a reevaluation is a reasonable course of action.

5. If it is determined that the misconduct is a result of the student's disability, the reevaluation must continue and the evaluation team must determine the appropriateness of the student's current placement.

6. If it is determined that the misconduct is not the result of the student's disability, the student may be excluded from school the same as his or her non disabled peers. All educational services may be discontinued.

NOTE: The issue of "relatedness" referenced in #4, 5, and 6 is not an easy one. Regardless of the decision by the local team, a summary of the team decision should be kept for future reference and include: careful documentation of all information and data considered, a chronology of followed procedures and notices, the team's decision on the issue of whether the misconduct was a manifestation of the student's disability.

7. When the placement of a student with a disability is changed for disciplinary reasons, the student and the parent(s) or guardian are entitled to the procedural protections of Reg. 104.36 which include notice, the opportunity to examine the student's records, an impartial hearing, and a review procedure.

OCR's "Response to Veir" (December 1, 1993) addresses the issue of discipline as applied to related to services. If transportation is a related service, the same limitations apply as are applicable to suspensions and expulsions from school. A school may change the mode of transportation if a student is endangering himself or others. The school may not revoke the services altogether for more than 10 consecutive or, in some cases, cumulative days.

If students who are eligible for Section 504 protections solely by virtue of being alcoholics or drug addicts break school rules as to the use and possession of drugs and alcohol, local agencies are not required to follow the disciplinary procedures outlined in this section. However, if students who are addicted to alcohol or drugs also have some other disability, the procedures in this section would apply without exception.

Appendix A, paragraph 4 to the Section 504 regulation states:

Neither such rules nor their application to drug addicts or alcoholics is prohibited by this regulation, provided that the rules are enforced evenly with respect to all students.

Additionally, the ADA amended §504 as it applies to students with disabilities who are currently using illegal drugs. If schools find that a student with a disability is currently using drugs, the student may be disciplined to the same extent as non-disabled students for the use or possession of illegal drugs or alcohol.

It is important for schools to remember that a student with a disability who no longer requires services is still entitled to protections under Section 504, including limitations on discipline.