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(Jackie) Good morning. This is Jackie from the Parent
Education Network.
Today I would like to welcome you to--coming to the "Free Appropriate Public Education
(FAPE) Under Section 504," with our returning guest speaker, Attorney Charles Jelley. Charlie
are you on the line?
(Mr. Jelley) Good morning, this is Charlie Jelley. The
purpose of today's review is to go over the differences and the similarities between the
requirements that public education programs have, and charter schools have, and LEAs (local
education agencies) have: to educate, identify, locate, and evaluate children who are otherwise
eligible for services under Section 504 of the Rehabilitation Act. Before we get into
the comparison and the differences, we need to go back and get a little history about
what 504 is and what 504 is not. Section 504 is a short paragraph in the Rehabilitation
Act of 1973. The history of the Rehabilitation Act is interesting in that, when it was first
passed, the president would not sign the Rehabilitation Act, and Congress overrode the president and
forced the passage of the Rehabilitation Act.
The next interesting, odd part of the history of Section 504 is, after Section 504 was passed
into law, all of the agencies--federal government agencies--were told they needed to issue regulations.
The Department of Health, Education and Welfare, back then in '73, '74 and '75, initially refused
to issue regulations regarding Section 504 in health, education and welfare programs.
That resulted in a lawsuit, Cherry versus Mathews, which forced the Department of Education
to issue the regulations.
The regulations were then issued and subject to public comment. And the history of the
regulations are equally as wonderful in that they--there were 22 cities in which they took
public comment. The comment was synthesized and the regulations were--finally went into
effect. So the path of Section 504 in public schools was initially bumpy. At the same time
504 was coming on board, the--back then what was called the Education of Handicapped Children
Act, otherwise known as Public Law 94-142 took effect.
94-142 is what we now refer to as the Individuals with Disabilities Education Improvement Act.
94-142 came to the forefront and people started relying on the special education requirements
under, then 94-142. It requires districts to provide kids with IEPs and evaluations
as the lead for providing services to people with disabilities. So, for many years, 504
took a back seat in the provision of services for kids, and it's not--it's just now starting
to come forward with being a lead for certain types of kids. When I say lead, I mean a way
that kids can get equal access, equal opportunity for equally effective services in the least
restrictive environment.
One of the requirements of 504 is--and Jackie if we can go down to the first page, so we
can do the side-by-side comparison. If you could scroll down one page. On the first slide,
what we have are the--column one we have the regulations under 504; column two, we have
Pennsylvania's version of Chapter 15, what's called Chapter 15, which is the short version
of Pennsylvania's response to the regulations implementing 504; and in the third column,
if we can go back, Jackie, we have the IDEA requirements.
[Mr. Jelley pauses]
I'll wait 'til the slide catches up.
What you'll see is that the 504 requirements in column one--the regulations start with
a purpose, application, definitions of discrimination. The sections that are important to us today
are 104.1, 2, 3 and 4. And then we skip to 104.31, which deals with preschool, elementary,
secondary. And we've also listed some of the post-secondary education for people who may
have questions about what happens when the person with a disability goes forward and
goes to college.
When you compare the amount of regulation for 504 and Chapter 15 to the IDEA side, you'll
see that IDEA is a heavily regulated area. I mean the... regulations start at 300.4--and
Jackie if you can scroll down, you just want to give them an overview. They go--there's
a second page from 342 to 130. Next page.
Then it goes 131--you'll see that there's at least five or six slides dealing with how
big and different in regulation and how detailed the regulations are for the IDEA side of special
education, as opposed to how small the number of regulations are for Section 504. And in
some ways that's helpful, and in other ways, it's not. And as we start to go through the
presentation, you'll get a sense of what we know and what we don't know about providing
services for children under 504.
If you look at these regulations, one of the first things you'll notice is that they are
quite old and that they use some fairly outdated language. By that I mean, they still refer
to people as handicapped individuals, rather than persons with disabilities or an individual
with disabilities. So, to that extent, I'm going to use what would be considered outdated
language, but I'm going to try to be as pure to the regulations as possible, rather than
substituting new language for the regulations. And I think that's important because when
you're reading the regulations and you're reading the statute, we need to be consistent,
otherwise we're gonna to import concepts from special education side (IEP side) that may
not necessarily be the same requirement on the 504 side.
First slide please, Jackie, after this one.
[Mr. Jelley pauses]
So, if you need to find these regulations, you'd go out to the Internet, and you'd go
to 34 CFR, [inaudible] means Code of Federal Regulations. You'd go to Section 104.1--is
the purpose, and we're going to start off with 104.4.
The statute prohibits discrimination. No qualified handicapped person, and that's that outdated
language, on the basis of the handicap may be excluded from participation in, be denied
the benefits of, or otherwise subjected to discrimination, under any program or activity
that receives federal financial assistance. And then identifies discriminatory actions
prohibited. So the first thing is, you can't be excluded. And if you're included, you can't
be denied the benefits of, or subjected to discrimination in any program or activity.
The overall eligibility requirements under 504 and the companion statute, the Americans
with Disabilities Act, are bigger than the IDEA requirements. And by that, I mean this.
If you are a person identified with an IEP, you have to have a condition; the condition
has to adversely affect your education. And then, you're otherwise eligible. In 504, you
have to have a handicap. It has to be a physical or mental impairment which substantially limits
one or more major life functions. And the definition of a physical or mental handicap
is any physiological disorder, condition, cosmetic disfigurement, or anatomical loss
affecting one or more of the following bodily systems: neurological, muscular-skeletal,
special sense organs, respiratory, speech, cardiovascular, reproductive, digestive, lymphatic,
endocrine or any mental or physical disorder such as mental retardation, organic brain
syndrome, emotional or mental illness, and specific learning disabilities.
So you have to have a condition. The condition has to limit your major life function and
major life activities.
Now Jackie if we could go to the next slide, please.
[Mr. Jelley pauses]
And feel free at any time to raise your hand or ask a question.
A recipient in providing any aid, benefit or service, may not directly or through contract,
licensing or other arrangements, deny a qualified handicapped person the opportunity to participate,
or afford the person the opportunity to participate in an aid or benefit that is not equal to
that afforded to others.
Let's break this down, because we're starting to get into what is--what some people call
active, or other--or they call inactive discrimination. Julie Weatherly, who is a prominent special
education lawyer, that does a lot of work for school districts, refers to it as active
or inactive discrimination. She talks about active discrimination is--would be an action
to deny a handicapped student participation in a program solely on the basis of his disability
(or her disability). Inactive would include the failure to act or provide certain services.
So when you're talking about active discrimination, you'd be saying, "Because you need to take
a medication during the day, you can't go on the field trip, because we don't send nurses
on the field trip." That would be an example of denying based on the disability. You have
a need to take this medication; you can't go because we're not going to give you the
service on that field trip.
Inactive would be, the failure to identify a kid. Inactive would be the failure to provide
the child with the full modifications or accommodations that the child needs to participate. Inactive
would be the failure to ensure equal access. An example might be, if you are a student
with an IEP, and it comes time for graduation, and you're going to go to school 'til you're
21, you're permitted to walk at graduation and then continue on. There's a state statute
that provides for kids with IEPs that can do that.
The statute doesn't say anything about kids with Chapter 15 or Section 504 agreements.
So the question would be, is if you're a senior, and you're going to go on and take classes
and continue on and finish your program beyond your senior year (you're gonna go to school
for an extra year), can you walk at graduation, or are you not permitted to walk at graduation?
So that would be an example of active discrimination saying, "No your program says you need to
be here longer, but we're not going to let you participate with everybody else."
Active discrimination could be, "We're not going to modify the water fountains." Discrimination
could be "We--you need to use the restrooms in school. You go to the nurse's office only
because we're not going to modify the rest of the restrooms in the school."
"It's basketball season, and we're not going to provide people with disabilities with equal
access, equally effective seating at the basketball games."
"It's football season, and we don't have designated parking for persons with disabilities. We
don't have seating for persons with disabilities in the football stadium."
504 covers the entire program and facilities, and the campus that the kid is on. IDEA would
be looking at what happens in the classroom, or in the building, but 504 is going to deal
with the door handles, the elevator, the bathroom, the water fountains, the chemistry lab, the
home economics lab. That it's accessible, it's usable and it provides people with an
equal opportunity for equal access.
Another example would be is if the kids are taking the bus to school, there has to be--the
school code says that every year there has to be a fire drill on the bus. So what are
they doing for the small bus that the child's being transported in alternate transportation
to ensure that there is a way--that there's safety for kids on that bus that could get
in a car accident. So it's a much broader concept about equal access and equal opportunity.
Jackie if you could go to the next slide, please.
(Jackie) I just want to stop right here for a second.
If you have any questions, on your tab on the right-hand side, there is a questions
bar. So if you do have a question, please type in your question, and then what I can
do is, at an appropriate time, I will interrupt Mr. Jelley and ask your question, on your
behalf. So I just wanted just to reiterate that.
(Mr. Jelley) It's more important for us to try to respond
to your needs than just go through the webinar. So if we can get to the next slide.
Section 504 prohibits providing a qualified handicapped person with an aid that is not
as effective as that provided to others. When you provide different or separate aids to
persons, unless such aid is necessary to provide the person services as effective as those
to others. So you're always comparing what you get as a person with a handicap to what
others are getting in terms of equal access and equal opportunity. So there's somewhat
of a comparison, unlike the IDEA where you're looking at what the individual needs and basing
it on that. Here, if other people are getting things that you're not getting, or you're
not getting the same opportunity to get the same benefit from that, you have a concern.
It could be that you need extended time to take your SATs. The SAT for college admission
is not a test sponsored by or given by the district. It is given at the district because
it's somebody else's test. So the district should in their guidance counseling, talk
to the students about what they have to do to file a request to get extended time for
that test. If it's in your 504 plan, you're getting extended time in your district-wide
tests, it would seem to make sense that you should get extended time for your high-stakes
college admissions test.
Next slide please.
[Mr. Jelley pauses]
[Mr. Jelley pauses]
504 prohibits--you can't aid or perpetuate discrimination by providing significant assistance
to an agency, organization that discriminates in providing any aid, benefit or service.
An example of that might be, it is prom time; the prom is held off the campus; the child
is in a wheelchair; the facility that they are going to has to be accessible. There needs
to be accessible seating; there needs to be accessible restrooms; there needs to be accessible
parking.
If the district was giving financial assistance to an after-school program, and the after-school
program was refusing to provide the child with certain services or make modifications
so that the child could participate, there may be a claim back against the district,
because the district is aiding or perpetuating discrimination by providing significant assistance
to an agency (not the district, an outside agency). For example, if the district had
clubs and the district would provide the teachers for the clubs and the funding for the clubs,
but the clubs were after school, and the child wanted to attend, but they wouldn't allow
the child to attend, or they would allow the child to attend, but the child would not have
transportation, there may be issues regarding to aid or perpetuate discrimination. Again,
it's a broader statute covering a lot wider range of issues.
The next one: "Deny a qualified handicapped person the opportunity to participate or be
a member of planning or advisory boards." I mean that's just--today it seems to be common
sense, but it's in the regulations to prohibit people from doing things.
Next slide, please.
[Mr. Jelley pauses]
The--you may not limit a qualified handicapped person from enjoyment of any right, privilege
or advantage provided to others.
Aids, benefits and services are to be equally effective. They're not required to produce
identical results, but they must afford the person equal opportunity to attain the same
results or to gain the benefit, reach the same level of achievement in the most integrated
setting appropriate to the person's needs. So, very early on in the 504 regulations,
the Least Restrictive Environment concept is there. The opportunity to get to the same
level with adequate resources. So they don't have to ensure that you get there, but there
has to be some type of a plan to allow you to have the services that you need or the
opportunities you need to have a chance to get there.
This is all in the early parts of the regulations at 104--104.1.
If we can get to the next slide please.
[Mr. Jelley pauses]
When they provide separate or different services, they may not deny a qualified handicapped
person benefits that are not separate or different. So, although there are separate and different
services, the Least Restrictive Environment contract--concept is very apparent--that you
should be in an integrated, Least Restrictive Environment.
You can't contract or use a method of administration that would deny a handicapped person the opportunity.
So if there's a contract between the district and another agency, that contract cannot stand
in the way of that person getting whatever needed accommodations, modifications or services.
Next slide, please.
[Mr. Jelley pauses]
[Mr. Jelley pauses]
You cannot have a program or method of administration that impair the person's objectives. So, administration
barriers need to come down, and opportunity has to be provided.
Next slide, please.
[Mr. Jelley pauses]
[Mr. Jelley pauses]
In determining the site or location, they can't pick places that would otherwise exclude
people. So you can't put the science lab on the top floor of the building and not have
a way to get the kid to the top floor.
You can't have an outside, recreational program that doesn't allow for accessibility and equal
opportunity for kids who are physically challenged to get in and recreate and be with their peers.
So, at playgrounds, it's an issue. Parking, it's an issue. Field trips, it's an issue.
If the child's going on a field trip and the field trip were to require the child to go
on the subway, the subway has to be accessible to the child. If the bus is going to stop
and the kids are going to go into a restaurant to eat, there has to be accessible seating
for the child. Those types of things need to be thought through, otherwise people are
segregated and isolated.
Next slide, please.
[Mr. Jelley pauses]
[Mr. Jelley pauses]
[Mr. Jelley pauses]
The exclusion language is predominant throughout in terms of the use of an aid or a benefit,
or denial of access to people. So when you're studying these regulations, you need to start
with the discrimination prohibited side, and then look at what is happening and how it's
preventing you from having access that, otherwise, everyone else has. And whether it's an aid,
a benefit or service, or whether it's access to a facility, and what are the changes that
need to be made to allow the child to participate.
Next slide, please.
[Mr. Jelley pauses]
[Mr. Jelley pauses]
[Mr. Jelley pauses]
Qualifying handicapped person, this talks about employment, has to be able to do the
essential functions with respect to public and adult handicapped person of an age during
which non-handicapped persons are provided services. So, if your district doesn't offer
a kindergarten, and the child needs services before--during--the age of enrollment, you
can't make the district open a kindergarten program because other people in the district,
non-handicapped, don't have a kindergarten.
Now if they have a kindergarten, and it's only a half-day kindergarten, and the child
needs to go for a full day. And they could--they would say, "No we are not going to allow you
to attend all day," that could be an act of active discrimination because if the child
needs more, they should be able to be permitted to go all day. Now what the second half of
the day would look like, how the child would participate, how the child would get a lunch,
because they don't traditionally plan lunches for those types of kids. That'd all have to
get worked out.
And there may be a point in time when the child, who initially starts off as eligible
for Section 504, Chapter 15 services, is looked at and now is really adversely affected and
needs special education services. There's nothing in 504 that says if a kid with a disability
under 504 needs access to a teacher for instruction, they should not get that teacher. Most people
look at 504 plans as just modifications, adaptations, and things and stuff. It is more than that.
You can get services.
For example, if the child needed physical therapy, occupational therapy, school nursing
services, they are all services. You can't say that a child gets PT and OT, and a school
nurse, but doesn't get access to a teacher to remediate any difficulties and provide
him with equal access to the program.
Next slide, please.
[Mr. Jelley pauses]
[Mr. Jelley pauses]
[Mr. Jelley pauses]
Jackie, could you advance it one more please.
[Mr. Jelley pauses]
Handicap means any condition or characteristic person is defined in this paragraph.
Next slide.
I initially covered some of these, so we can go through these a little bit quicker.
[Mr. Jelley pauses]
104.7 says, "Districts have to have a grievance procedure." "A recipient that employs 15 or
more persons, shall adopt a grievance procedure that incorporates appropriate due process
standards and provides prompt and equitable solution. Now there are two types of things
here. One of them is just a general grievance procedure, and the second is, like IDEA, a
procedural safeguards where you actually get an administrative hearing.
How does this work? If you think the child is being treated unfairly by their peers or
being picked on, you can file a grievance. You don't necessarily have to file for an
administrative hearing. The grievance has to provide prompt and equitable resolution
of complaint. Now, it doesn't say how to do that. And there's not a specific recipe on
how to--or how fast, but it needs to be prompt and it needs to equitable resolution.
So, you need to identify who the Section 504 officer in the district is, or is it the building
principal, and make those complaints and see how it works its way through. As we get through
this, we'll talk about where you can make discrimination complaints and what the different
agencies, or the different entities or responsibilities are. If we can get to the next slide, please.
So, 504 has an internal grievance procedure, and it also has an external grievance procedure,
where you can file for an administrative hearing.
Next slide, please.
[Mr. Jelley pauses]
And that's a difference between the IDEA and 504: IDEA doesn't really set forth a specific
internal grievance procedure. And the grievance procedure would also cover employment actions
or from applicants for admission to post-secondary education institutions. So if you're a post-secondary
education program, you also have to have a grievance procedure for kids who are going
to college or going to private, for-pay vocational technical schools. As long as that school
is receiving some type of federal financial aid. Or even if it doesn't, there still may
be requirements under the Americans with Disabilities Act to eliminate discrimination.
Next slide, please.
[Mr. Jelley pauses]
I want to start getting into the actual regulation dealing with education. They started--104.31,
32.
Next slide.
And this is all in the 504 regulations. 104.32 says, "A local education agency that operates
a public or secondary school, shall identify and locate every handi--every qualified handicapped
person residing in the jurisdiction who is not receiving public education, and take steps
to notify the handicapped person and their parents or guardians of their duty under the
subpart.
So, this is the equivalent of the child find under the IDEA: they have to locate and identify,
they have to advise you of your rights.
If we can go back one slide, Jackie.
The--This would also include kids who are in private schools in the community. There
is a concept in Pennsylvania of dual-enrollment. You're enrolled in the public and the private
school at the same time. For kids who are dual-enrolled, in public and private schools
at the same time, districts, at times, can be held responsible to provide some types
of services for those types of kids. They could include, physical therapy, occupational
therapy. So just because you're not in the public school, doesn't mean you can't enroll
in the public school and the private school to get this access to the services that the
child may need.
There's a Pennsylvania Supreme Court case on this, it's Doe versus Lower Merion. People
are not aware of it sometimes, and you need to think it through for those types of kids.
If we can get to the next slide.
[Mr. Jelley pauses]
A recipient to which this part shall provide for each handicapped child in the jurisdiction
to the maximum extent appropriate. Again, language like the IDEA.
Shall place the child in the regular education environment unless it is demonstrated that
the education in the regular environment would be used if supplemental aids and services
cannot be satisfactorily achieved. Whenever they put you in a setting other than--it shall
take into account the proximity of the alternative setting to the person's home. So, like the
IDEA, there is a Least Restrictive Environment requirement, that you should be educated to
the maximum extent appropriate.
[Mr. Jelley pauses]
Non-academic settings and providing for non-academic and extracurricular, including meals and recesses,
the recipient shall ensure that the person participates with non-handicapped persons
to the maximum extent appropriate. So, the academic part of the day, the non-academic
part of the day, and the extracurricular part of the day, you must be given an equal opportunity
to participate in.
Some people see the non-academic and extracurricular part of the day as not related to a Free Appropriate
Public Education, but just related to whether the child is getting equal access and equal
opportunity. So when you look at this and you think you're being denied a FAPE, a Free
Appropriate Public Education, the question becomes: "Are we fighting about or disagreeing
about an academic issue, or are we disagreeing about a non-academic extracurricular issue?"
And then how you would be admitted or not admitted. Let me give you an example (concrete).
The child wants to participate in cheerleading. The cheerleading coach has a specific criteria,
and there are certain stunts or activities or skills or tricks you need to do, and they--that
person then scores the child. If that is the criteria provided to everyone, and everyone
is expected to do it, then you would be graded upon that. The question now becomes if you
are modifying the criteria, for example, you have to do two of something, or three of something,
and the child can only do--can't do them all. Is that discrimination or is that just the
requirement to participate?
So when you get into the non-academic extracurricular, the concepts get applied based on what is
required for everyone. Whether it's you have to have a certain golf handicap; you have
to be able to run a certain distance in a certain amount of time, to be able to qualify
to be on the first team or to be on the second team. It looks a little bit different then
when you're in the classroom and you're asking for extended time for the test, or things
like that.
Next slide, please.
Comparable facilities. So, again, similar to the IDEA, the handicap kids in the school
can't be isolated or segregated in a wing. They should not be all forced off the campus
into separate campuses, or they shouldn't be placed in portable trailers in the back
of the building or something like that.
Next section, please.
[Mr. Jelley pauses]
[Mr. Jelley pauses]
Next slide. Thank you.
Uh, next slide we've done this one.
[Mr. Jelley pauses]
[Mr. Jelley pauses]
[Mr. Jelley pauses]
Procedural safeguards. Like the IDEA, kids in Chapter 15 or Section 504 programs have
the option of complaining about the program and having the program reviewed by outside
individuals. Anything related to the identification, evaluation, educational placement can be subject
to an impartial hearing. And if you notice this is how all the regulations are, it says,
"Compliance with the procedural safeguards of the Education of the Handicapped Act is
one means of meeting this requirement". These regulations, unlike the IDEA regulations,
have not been changed and that's a reference back to the initial public law 94-142.
And--
there are times when you'll reference back to the other set of regulations in terms of
compatibility or comparability.
If you could go to the next slide, please.
Your Chapter 15 due process hearing would be like an IDEA due process hearing. You could
call witnesses, present evidence, there would be a decision, and that decision would be
enforceable against the district. The difference between the IDEA due process hearing and the
Chapter 15 due process hearing is if the child is IDEA eligible, you must go to your due
process hearing, before you can go--if you wanted to go to court. And in Chapter 15's
case, you don't have to do your due process hearing, you may just go straight to federal
court.
There are--there is a difference of opinion now; if it is related to a Free Appropriate
Public Education and you could get services under your IEP, you should have to exhaust.
What does that mean? If the kid has an IEP, you need to go through your IEP procedural
safeguards. If the child doesn't have an IEP and just have a Section 504 plan, what the
rules are saying is you can skip over your procedural due process hearing and go straight
into federal court. Some have argued that no, you should go back and you must have a
hearing before you get into court. Right now, the majority of the cases are saying you don't
have to, but there are some out there that say that you should.
If you're in a dispute, you need to seek out someone who can advise you as to the requirements
for your particular problem, because, just like the IDEA side, it is a very fact-specific
requirement.
We're getting to some of the differences now. A Free Appropriate Public Education under
the IDEA means special education and related services that are provided at public expense,
meet the state standards, include appropriate preschool, elementary or secondary school
programs.
504 FAPE is somewhat different. Jackie, if we could get the next slide.
[Mr. Jelley pauses]
Again, next slide please.
[Mr. Jelley pauses]
Under IDEA, and you can tell the difference between the regulations, because IDEA regulations
start off with 300; the 504 regulations start off with 104. IDEA says supplemental aids
and services include--that are provided in regular education or other related settings
in extracurricular. So, if you need a supplemental aid and service for a kid with an IEP, that
supplemental aid and service can be provided in an extracurricular and in a non-academic
setting.
Similarly, if you needed that supplemental aid and service, i.e., an example would be,
the nurse gives you your medication during the day; you're going on your field trip.
The field trip is to New York City for three days. A nurse should go to be there to administer
the medications. Otherwise, there would be a problem with--if you're a kid with an IEP
under the IEP regulations, but definitely if you're a kid with a service agreement or
a 504 plan, that nurse should be there to assist you. And they can't say to you, "Charlie,
you can't go because we're not going to take the nurse out of school for three days." Or,
"Your mom or dad are gonna have to go, your grandmother, because otherwise nobody is there
to help you.
A recipient to which it applies shall provide non-academic in a manner as necessary to afford
handicapped students an equal opportunity to participate in services and activities.
So, all people have equal access and equal opportunity to all things.
When we're talking about FAPE under 504, the regulations say that an appropriate education
is designed to meet the needs of the individual, and is based on the requirements that there's
an evaluation, there's a placement team meeting, and there's a discussion of what the child
needs for services.
FAPE under 504, you have testing and evaluation. Those test and evaluation materials must ensure
that they don't measure the person's disability, as opposed to their need for services. And
if you're a kid with a medical condition, the doctor's input is important, but that
input has to be based on the relationship to how it affects a major life function. Just
saying you have a bipolar disorder, you're a kid with epilepsy, you're a kid with attention
deficit disorder, you're a kid with anxiety disorder, is not enough. You have to be able
to show how that condition adversely affects a major life function. Major life functions
including walking, talking, breathing and learning. So there needs to be a link between
the condition and how it affects the child in school.
There is a team meeting. Unlike the IDEA, it just says there needs to be a team of knowledgeable
people. It doesn't say there has to be a special education teacher, a regular education teacher.
A "team of knowledgeable people," so there--unlike IDEA, there's no minimum number.
When we talk about evaluations in the IDEA, we talk about every 3 years there has to be
a reevaluation. 504 regulations don't have a magic number when it has to be done, but
the plan itself should be reviewed annually.
Another difference between 504 and IDEA is related in the area of discipline. The IDEA
regulations have very detailed requirements when you're talking about kids, and discipline,
and interim alternative educational settings, and the requirement for manifestation determinations.
The 504 regulations don't have a specific requirement for a manifestation determination;
however, the Office of Civil Rights (the agency that enforces the 504 regulations) have advised
school districts that they should do manifestation determinations when they are looking at a
change in placement for the child. So any time there is a change in placement, there
is a triggering element whether there is a need for reevaluation under 504. And if there
is a discipline incident, or the child is going to be removed or changed from a building
to another building, that manifestation determination requirement starts to pop up.
Another difference is for kids with IEPs, they get transition plans. 504 doesn't say
anything about transition, but, if you're going to assist the person in meeting--and
giving them the equal opportunity to get the same results, there is an implied requirement
that there be some type of aid, benefit or service to assist the child in getting equal
opportunities for the same benefit or result. So there are times--and we're just starting
this now--where kids with Chapter 15 agreements could get something like a transition plan,
because they need that for the equal opportunity to get to the same aid, benefit or result.
There are times with kids with 504, Chapter 15 agreements, that may require positive behavior
support plans. I would agree with everyone that would criticize me that there is no specific
line in the 504 regulations that say you have to do a positive behavior support plan, but,
if the child needs that to participate and not be denied the opportunity for these equally
effective aids, benefits or services, then so must it be.
[Jackie prepares to speak and Mr. Jelley continues]
The interesting thing is going to be how much the--
[Mr. Jelley pauses]
aids, benefits or services requirements for supplemental aids and services transports
into non-academic and extracurricular services.
[Jackie prepares to speak and Mr. Jelley continues]
Non-academic and extracurriculars include counseling, physical education, transportation,
health services, special interest groups, clubs. For example, if a child is in the band,
the child takes an emergency medication, somebody needs to be able to administer the emergency
medication when the band is traveling. When the band is at the district. When the band
is performing at the Christmas concert. When the band is performing at graduation. If the
child needs the access to it, somebody needs to be able to be available.
Kids with diabetes, who may need to have their insulin checked while they are participating
in a non-academic extracurricular activity. How is the insulin check done? Who does it?
Who monitors it? And what does it look like when the kid's in elementary school, versus
a kid at the senior high.
If there is a kid with epilepsy who needs medications administered during the school
day, who is to administer it? How is to be administered? Where is the school nurse when
it's going to be administered? The kid is traveling for an activity; that has to follow
with the child.
Next slide, please.
(Jackie) Mr. Jelley? (Mr. Jelley) Yes ma'am?
(Jackie) We do have a question.
Can you clarify whether the 504 needs to be reviewed annually or write a new 504 agreement?
The person said that the form indicates written yearly.
(Mr. Jelley) When you're looking at the--
And I think what they're referring to is the Chapter 15 regulations that say it has to
be written annually. The concept--one concept is reviewing and revising the plan. The other
concept is assessing and reevaluating whether the plan has been effective. From the IDEA
side, we do, every three years we do a reevaluation to see where the child is, how the child's
doing.
You could ask for regular reevaluations to see where the child is and how the child is
doing. Unlike the IDEA, the 504 plans tend not to put in any specific requirements for
reporting of progress. And partially it's because it's about accommodations or testing,
more time: things and stuff. If you're trying to get a service from the district, I think
you need to monitor whether the service is getting you the equal opportunity.
So if this was related to--you go to see the nurse three times a week. That's pretty easy
to monitor, "Did you go to the nurse three times a week or didn't you?" If this is about
you getting physical therapy, and is your physical therapy helping you to improve, that
progress monitoring needs to look a little different. Just because the child is advancing
from grade to grade, doesn't necessarily mean that the accommodations or modifications are
giving the child equal opportunity; because, advancement without benefit is where the rub
is. And there--a lot of the 504 plans are not service-based for academic levels, but
they are service-based for physical therapy, occupational therapy, nursing services: that
kind of stuff.
Did that answer the person's question?
[Mr. Jelley pauses]
(Jackie) I'll wait for a response.
And the other question is: "Should an actual transition plan be addressed around age 14?
(Jackie) As well? On a 504 plan? (Mr. Jelley) The answer is, I don't know.
(Jackie) Okay. (Mr. Jelley) Because 504 doesn't have the
requirement in it, that's an IDEA concept. So the question now becomes "How much of the
50--IDEA do we bring over into 504?" Some people would say, "Well then if a kid needs
something like that, let's look at their eligibility for IDEA services, as opposed to trying to
put it through a 504 plan." So, it's open-ended--
[Mr. Jelley pauses]
because the regulations (the 15 and the 504 regulations) don't tell us how it's to happen,
but it just makes sense that if a kid has to do--go forward after school, there should
be something that addresses to make sure that that transition is happening and the kid gets
the equal opportunity.
[Mr. Jelley pauses]
[Mr. Jelley pauses]
(Jackie) Okay, that seemed to answer that person's
question and the prior question is a yes also.
(Mr. Jelley) Okay. So now if you look at the Chapter 15
regulations, you'd be looking at 22 PA Code. And if you want to find this stuff, if you
just go out to the Internet and you just put in "Chapter 15 + PA Code" and put the word
"agreement," you'll probably get into it. The online website is PA Code Online.
15.7 tells us that if parents and school districts agree on what related aids, services or accommodations,
the district and parents enter into and modify a service agreement. The service agreement
shall be written and executed by a representative of the district and one or both parents.
[Mr. Jelley coughs] Excuse me.
Oral agreements cannot be relied upon. The agreement shall set forth the specific related
aids, services or combinations--shall receive, and the agreement is being modified to what
the future agreement is. So specify the date that services begin, the date services shall
be discontinued, and, when appropriate, the procedures to be followed when a medical emergency
happens. In implementing the service, school districts--school entities shall address relevant
factors, such as educational resources, physical plant and personnel capabilities.
So the regulation itself talks about resources that the kid needs. The school can initiate
the evaluation for the child, or the parent can initiate the evaluation for the child.
The timeline for an evaluation is different than the timeline for an evaluation for a
child with an IEP. 22 PA Code 15.6 talks about parent-initiated evaluation and the provision
of services. 22 PA Code 15.6 (d) says "within 25 school days of receipt of the parents'
written request for the provision of services, the school district shall evaluate the information
submitted by the parent and send their written response to the parents' request.
So it appears that unlike the IDEA, where you're looking at 60 days, they're talking
about within 25 school days after you provide your information, the district shall evaluate
and send their written response to parents' request. Now, that written response could
be "Hey, we need more information on that written re--"
[inaudible sound]
"so therefore, the child is otherwise eligible." So your timelines are different, when you're
comparing your IDEA versus your 504.
Counseling services, such as counseling, guidance or placement services to which students--shall
provide these students without discrimination on basis of handicap. So, one would have to
question--and there's no real definition for what is a "placement service." So that may
be one way in which you import transition services. Definitely vocational counseling,
academic counseling.
Could you go back to the last slide, Jackie, where [inaudible] physical education.
Provide personal, academic or vocational counseling. Guidance or placement services. So, that may
be one way in which you import your transition plan back into it. The counseling services
could be dealt with as addressing kids with issues with anxiety. Kids with depression
issues in school. And schools have something called student assistance programs. So if
the kid's in a student assistance program, and they're addressing anxiety or depression,
there may become a time when the staff program, student assistance program, needs to convert
over to a 504 agreement (or a Chapter 15 agreement).
504 is as important, if not more important, than IDEA. 504 covers more kids than the IDEA.
All IDEA kids are covered by Section 504, but all Section 504 kids are not IDEA kids.
They are concepts: allow equal opportunity. If there is a disagreement, you can file an
internal grievance, you can file an external grievance, or you can even go to an agency
called the Office of Civil Rights and file a complaint for discrimination. I'm not encouraging
or discouraging, I'm just saying these are the places where you can go and vindicate
your rights or at least get assistance in helping to understand your rights.
With that said, we're just at about 11:00. If people have other questions, I'll be glad
to stay to take them.
[Mr. Jelley pauses]
(Jackie) If you have any questions, you can type them
in the questions box, right now.
And, I just want to let you know that I will be e-mailing a copy of the presentation to
you on a two-page slide, so you have the side-by-side as well as the additional law that Charlie
has been speaking to today.
(Mr. Jelley) And these regulations are published, they're
not my regulations; I just took them out of the Code of Federal regulations. As you start
to get into Section 504 issues, you need to think it through. The other is, I think, Jackie,
if you could go to the last slide, I think we list some resources.
[Mr. Jelley pauses]
The Office of Civil Rights has several different publications dealing with--
(Jackie) It doesn't. (Mr. Jelley) Oh, I'm sorry. I can provide
those to you, Jackie. If you go to the Office of Civil Rights website, there's something
called "Frequently Asked Questions about Section 504 and the Education of Handicapped--Education
of Children with Disabilities." It's a 2009 publication. It's a series of questions and
answers to give guidance to people in the field on how to implement and comply with
Section 504.
Last week, or two weeks ago, there was a webinar on harassment and bullying in school. Harassment
and bullying would be concepts that would equally be covered under 504. Since if you're
being picked on because of your disability, then that could be a violation of 504, because
you're being discriminated against, and the district is doing nothing to remedy it.
Did anybody post any questions, Miss Jackie?
(Jackie) No, I'm just getting a lot of "thank you's."
One final question, Mr. Jelley.
(Mr. Jelley) Sure.
(Jackie) A question came in is "What about a student
with a perceived issue, but no diagnosis?"
(Mr. Jelley) 504 talks about kids with--
[Mr. Jelley pauses]
that are regarded as having a disability. So, "perceived" would not necessarily be the
504 language; it would be if you are regarded as having a disability. And--
[Mr. Jelley pauses]
I mean I guess you could be a kid who has a mental health problem. Everybody knows you
have a problem, but you're not really requiring any modifications. That tends to happen--that
problem tends to pop up when the kid is--
[Mr. Jelley pauses]
iden--known to have a difficulty, goes to the nurse to take a medication, doesn't have
a 504 plan, and then gets involved in a disciplinary infraction. And then people want to go back
and say, "Well you can't discipline me, because this is related to my disability, but the
district never identified you as a person with a disability, and you never asked for
that--that identification.
So, perceived would more likely fall, in the 504 regulations, as "a kid who is regarded
as..." and then you'd have to go back and do the whole analysis. Are you "regarded as,"
because you're substantially limited? Or you're not substantially limited. So if you're not
substantially limited, then you're not going to qualify, because the condition--the handicapping
condition or disability doesn't substantially impair major life functions. And the March
27, 2009, Office of Civil Rights frequently asked question--I believe it's question number
two--I mean question 12, 13 and 14--lays out how you do a review of whether someone has
a substantial limitation of a major life function. And that goes to how you would evaluate, locate
and identify a kid.
So, short answer is, kids who are perceived may be eligible for services, as long as it
substantially affects a major life function. And the 504 language would be "regarded as--"
[Mr. Jelley pauses]
a person with a disability.
In closing, 504 and the ADA also cover people who make complaints and are retaliated against
for making complaints. That can be a separate violation.
[Mr. Jelley coughs]
So if you make complaints and then you are treated differently or given different access
to aids, benefits or services, then you may have been retaliated, and you may have a 504
grievance or a 504 complaint. When I use the word complaint, I'm thinking of going to the
Office of Civil Rights, and when I use the word grievance, I'm talking about internally
having it reviewed.
So there, again, that's a difference because you don't see the words "retaliation" in IDEA,
so you have a greater right, under 504, than you would have under IDEA. And the retaliation
provision doesn't necessarily limit it to the child. People around the child, such as
teachers, parents, outside counselors, could be retaliated against.
So, if a kid was in school with his TSS, and all of a sudden there was a flak, and then
the TSS would be told they're not allowed in school, that could be an issue of retaliation
because they said something. I'm not saying that it is; I'm saying that it could be an
issue, and it needs to just be analyzed.
[Mr. Jelley pauses]
With that said, I want to, again--once again, thank you. I hope everybody has a safe holiday,
and please let the Parent Education Network know if there are other webinars you would
like us to do, or more in-depth webinars on this topic. We would be more than happy to
try to put together something.
(Jackie) Thank you very much for your participation
today, and thank you so much for presenting for us today, Mr. Jelley.
(Mr. Jelley) Thank you, ma'am. Bye.
(Jackie) Buh-bye.