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Legally Best Practices in Section 504 Plans

A sound understanding of what the law actually requires can save you from awarding too many ‘consolation prizes’ by Rachel Holler and Perry A. Zirkel

 

 *Editor's Note: The practices from this specific article may no longer be relevant given the 2009 guidance.*

 A 7th-grade student has been making successful progress, most recently earning the “proficient” or “met standard” designation on the state’s annual assessment in literacy and math. Her parents bring in a doctor’s diagnosis stating that the student has attention deficit/hyperactivity disorder. They are requesting a Section 504 plan for extended time on all tests, contending their daughter could do much better with this accommodation. Is the student entitled to a Section 504 plan?

Too often school districts automatically answer yes, increasingly when the student does not pass the state’s assessments governing adequate yearly progress because of the high-stakes nature of the test for the school and the district.

Before proceeding with a Section 504 plan, your school district personnel must have a clear understanding of this law in comparison with the Individuals with Disabilities Education Act. With more privately diagnosed impairments, such as bipolar disorder, auditory processing disorder, dysthymia, oppositional defiant disorder, multiple chemical sensitivity and food allergies, becoming part of the lexicon of public education, schools are at risk for giving out Section 504 plans as “consolation prizes.”

Defining Disability
Section 504 is civil rights legislation that is part of the Rehabilitation Act of 1973. Section 504 directly affects public schools, prohibiting discrimination against persons with disabilities. More specifically to students with disabilities, Section 504 provides various procedural protections and, for students, an entitlement to “appropriate education,” which the regulations define as regular or special education and related services. Due in part to its overlapping coverage, Section 504 is often confused with the IDEA.

One of the major differences between Section 504 and the IDEA is their respective definitions of disability. For IDEA eligibility, students must qualify in one of the 13 recognized classifications, or impairments, and thus need special education — generally understood to be a two-part definition. In contrast, Section 504 has a three-part definition that is broader than the IDEA. Eligibility for a Section 504 plan, including accommodations, is for a student who has a physical or mental impairment that substantially limits one or more major life activities.

Let’s revisit our student with AD/HD. If the evaluation, which is ultimately the school district’s obligation, not the parent’s, defensibly determines this diagnosis is correct, the critical question will be whether this impairment substantially limits learning or some other similarly global major life activity.

Quiz Questions
This two-item quiz can help you gauge your understanding of how the courts are interpreting the meaning of substantial limitation.

Q: When determining Section 504 eligibility, should an eligibility team make its determination of whether the student’s identified impairment is “substantial” with or without mitigating measures, such as medication? For example, if the student has asthma and uses an inhaler, does your team determine whether the limitation on breathing is substantial with or without the inhaler?

Pick one: (A) with mitigating measures or (B) without mitigating measures.

Q: When determining Section 504 eligibility, which frame of reference should an eligibility team use in determining whether the impairment substantially limits the student’s major life activity? The individual child’s performance in relation to …

Pick one: (A) his/her own potential, (B) the performance of other children in the same class, (C) the performance of other children (in the same grade) in the building, (D) the performance of other children (in the same grade) in the district, (E) the performance of other children (in the same grade) in the state or (F) the performance of other children (in the same grade) in the nation.

Answers Revealed
If you answered B for the first question, you are not alone. In our 2008 national study of Section 504 practices, more than a third of the respondents — three-fourths of whom were principals or assistant principals — thought determining eligibility without mitigating measures, like medication, was the correct choice. However, it is not. The U.S. Supreme Court has held that the determination of substantial limitation is with, not without, the effect of mitigating measures (Sutton v. United Air Lines Inc., 1999), and the lower courts have consistently applied this standard for K-12 students since then.

What about your frame of reference when looking at a student’s performance? Educators want to do the best by and for the child, thus understandably measuring the child’s performance against his or her potential. Less than 7 percent of respondents in our national survey selected the correct answer for this question. The courts (for example, in Costello v. Mitchell Public School District, 2001, and D.P. v. School District of Poynette, 2004) have consistently applied the eligibility element of substantial limitation in reference to the student’s average peer in the general population.

One of us (Zirkel), in a 2005 book, Section 504: Student Issues, Legal Requirements, and Practical Recommendations, observed that the general population is “at least at the state level, and, preferably, where data are available, at the national level.” So give yourself credit if you chose either answer E or F.

If you missed both questions, you are not alone in your responses. Only 3 percent of respondents in our national survey selected both correct answers. Your responses might suggest whether your school district needs to take a closer look at Section 504 practices. Answering incorrectly could indicate you are writing too many Section 504 plans, using them as consolation prizes to appease parents rather than accommodating the students who are legitimately eligible under this judicially tightened eligibility definition.

On the other hand, if you are limiting Section 504 plans to the major life activity of learning, as the vast majority of the respondents answered, you are likely legally vulnerable for failing to identify students with physical impairments affecting major life activities, such as breathing and eating. Again, a careful individualized eligibility determination in accordance with current legal standards, rather than an automatic knee-jerk reaction, is the correct approach.

One reason for careful re-examination, even for students with health conditions such as food allergies, diabetes and asthma, is that the courts also have taken a demanding global and central view of major life activities. Thus, the plaintiff in the Supreme Court’s Toyota Motors decision in 2002, who had carpal tunnel syndrome, lost her case because the limitation on the major life activity of manual tasks — not subsets, such as fine motor work with her hands — did not qualify as substantial.

In light of these relatively recent and consistently strict judicial interpretations, the following practices warrant careful re-examination:

using Section 504 as an all-purpose mechanism for teachers who refuse to differentiate instruction;

providing Section 504 plans upon demand from parents who want a competitive advantage or who want to avoid a label of special education;

using Section 504 as an integral part of procedures — such as response to intervention — that formalize less restrictive alternatives prior to IDEA eligibility; and

almost automatically providing a Section 504 plan to students who would benefit from a safety net either for administration of medication or upon exiting from an IEP.

Section 504 is an unfunded mandate. As a result, overdoing Section 504 plans represents the use of local fiscal resources on unnecessary legalization instead of on improving local responsiveness to student needs. Why not reallocate such resources, beyond the strict boundaries of Section 504, to parent partnerships or professional development to assist staff in making appropriate accommodations that benefit all students?

The House of Representatives recently passed a bill that would reverse the recent judicial trend that has narrowed the definition of disability under both the ADA and Section 504. The bill would require that the determination of substantial limitation be without mitigating measures (except “ordinary eyeglasses or contact lenses”), thereby largely changing the answer to the first question above.

School leaders need to be active in and attentive to the political course of this possible new law. The Senate is holding hearings on the bill, and each presidential candidate has pledged to sign it into law. If the bill does become law, it will significantly increase the number of students and employees entitled to the protection of Section 504 and the ADA, which obviously will be one of the considerations as to its possible passage.

Ultimate Decision
The student with AD/HD presents a common case. Here’s the approach one of us (Holler) followed at a middle school. The guidance counselor and principal met with the parent to review the student’s progress. We noted the continued proficiency when examining the totality of her performance in the subject areas, not in a single course or particular skill. We were meeting the student’s needs, but we also were willing to offer extended time for all tests by using our school-based accommodations. Because the state test in Pennsylvania is not a timed test, we could offer these strategies without drafting a Section 504 plan.

Reminding the parent of the child’s long-term interest, we joined together in general education to assess and address the underlying reasons for extended time, which were reading fluency and test anxiety. Using a school-based intervention process, we developed strategies and supports available to all students who have needs that do not qualify for eligibility under the IDEA or Section 504 definitions of disability.

Each student with a physical or mental disability will present a unique situation to your school or district. However, Section 504 plans should be the exception rather than the rule. Our study found a 1 percent average prevalence of Section 504 plans with wide variations. On balance, this average was on the high side in relation to recent legal interpretations.

Be sure your school district is following best practices regarding Section 504 plans and individualized education plans. Otherwise, if the parents, whose escalating expectations for accommodations and services or whose child faces expulsion on a disciplinary matter file for an impartial hearing, seek money damages or other relief in court or complain to the Office for Civil Rights, you may have no consolation.

Rachel Holler is principal of Stewart Middle School in Norristown, Pa. E-mail: rholler@ptd.net. Perry Zirkel is professor of education and law at Lehigh University and author of Section 504, the ADA, and the Schools.