Special Education and Education Issues

Posted on July 23, 2021 by Micki Moran

Extended Services to Transition Age Students

The pandemic wreaked havoc on educational programs for many students. For students who were transition age and turning 22 the impact was enormous. Recent legislation enacted by the Illinois General Assembly were designed to ameliorate the unique challenges faced by this group of students.

HB40 impacts students who turn 22 during the school year by allowing them to continue to receive special education services until the end of that school year rather than until the day before their 22nd birthday.

HB2748 titled “COVID-19 post-secondary transition recovery eligibility”, provides an extended period of IEP services for students who turned 22 during the time in which the student’s in-person instruction, services or activities were suspended for a period of 3 months or more during the school year as a result of the COVID-19 pandemic. Students who fit these criteria are eligible for services through the end of the regular 2021-2022 school year.

Who does not qualify for these services:

  • Students who are no longer residents of the district they attended when they turned 22.
  • School districts are not required to resume private their private therapeutic day or residential services for students who have aged out of the program or when funding for the placement is no longer available.

IEP teams are required to work on the goals that were in place when the student turned 22.  At their discretion IEP teams can revise goals and set priorities as needed to meet the student’s transition needs.

Returning to School:  New CDC Guidance

The Centers for Disease Control and Prevention issued guidance for COVID-19 Prevention in K-12 Schools on July 9, 2021, www. cdc.gov/coronavirus/2019-ncov/community/schools

  • Return to in person learning is a priority
  • Promoting vaccination is important.
  • Masks should be worn indoors by all individuals (age 2 and older) who are not fully vaccinated. Consistent and correct mask use by people who are not fully vaccinated is especially important indoors and in crowded settings, when physically distancing cannot be maintained. * [ Schools are still working on the details of how
  • CDC recommends schools maintain at least 3 feet of physical distance between students within classrooms, combined with indoor mask wearing by people who are not fully vaccinated, to reduce transmission risk. When it is not possible to maintain a physical distance of at least 3 feet, such as when schools cannot fully reopen while maintaining these distances, it is especially important to layer multiple other strategies, such as indoor masking.
  • Screening, testing, ventilation, hand-washing and respiratory etiquette, staying home when sick and getting tested, contract tracing in combination with quarantine and isolation, and cleaning and disinfection are also important layers of prevention to keep schools safe.
  • Stay home when they have any signs of infectious illness.
  • Many schools serve children under 12 who are not eligible for vaccination at this time. Therefore, this guidance emphasizes implementing layered prevention strategies (e.g., using multiple prevention strategies consistently) to protect people who are not fully vaccinated, especially in areas of high community transmission levels.

The Illinois State Board of Education has fully adopted these guidelines.

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Extended School Year and COVID-19/Compensatory Education

Posted on June 2, 2020 by Micki Moran

The Extended School Year (ESY) is fast approaching and in the current environment there are few certainties. In Illinois, students who are eligible for extended school year will receive services remotely. There will be no in person instruction. The standards for determining whether a student is eligible for ESY have not changed. Those form the starting point for every discussion regarding ESY.

The determination of whether a student is eligible for ESY is made by the IEP team which includes the parents. The IEP team considers the following factors in making a determination regarding Extended School Year for an individual student;

  1. Did the student experience regression during school breaks and if so how quickly where they able to recoup those skills.
  2. The nature and severity of the student’s disability.
  3. The presence of emerging skills and the areas of learning that are crucial for independence.

Regression is defined as “the amount of loss during a scheduled break in instruction of a learned skill or acquired knowledge” specified in IEP goals. School district IEP teams often talk about the maintenance of skills as the goal of ESY. The purpose of ESY is not to make progress but to maintain the student’s gains acquired during the school year.

In the current environment, the discussion of ESY by the IEP team may need to be more expansive. Students who are already eligible for ESY will receive services in all likelihood.

Parents are requesting ESY this summer even though their child with an existing IEP may not have been previously eligible. Remote Learning has been very difficult for many students. Many parents report loss of skills and lack of any progress on existing goals. Parents should request that the IEP consider making the child ESY eligible. Unfortunately, this will not address the inherent difficulties with remote learning for a significant group of students. This may require that the parent and the IEP team consider compensatory education.

Compensatory education claims may be warranted as a result of the failure to provide a free, appropriate, public education during the school closures and remote learning. The analysis of whether compensatory education is due a student will turn on the services offered and the student’s progress or regression.

Parents should keep a daily log of the services their child is receiving during the school year and for ESY. Documentation is essential. Parents should compare the services their child was receiving before the school closures and keep a detailed list of what the school is providing since the school closed. Most parents are not educators and the expectation should not be that they are able to provide the appropriate educational services is simply not realistic

Parents can request an IEP by video or by phone. If they have concerns they should request a meeting and put that request in writing to the school as well as a list of the educational issues that they need to discuss regarding their child.

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Special Education Rights and the Coronavirus

Posted on March 31, 2020 by Micki Moran

Let me start by stating the obvious. We are in uncharted waters. Everyone, parents, school personnel and others are trying to navigate this situation. As a parent attorney I have been staying up to date in what is a very fluid situation. I have outlined some of the changes to the law and guidance as the information becomes available.

Disclaimers: At this point the situation is still evolving. I expect additional information from the ISBE and the Federal Government. I will keep you updated as things develop.

This newsletter is not intended to, nor does it constitute legal advice. It is for information purposes only.

Click here to read about ISBE Guidelines

Remote learning for special education students. What should schools consider when assessing how remote learning will be provided to special education students?

  • Individualized to meet the unique needs of the student.
  • Reasonable in light of the current circumstances.
  • Appropriate based on the student’s unique needs and learning style
  • Focused on readiness for the next grade level
  • Accessible to the student and family.
  • Holistic in terms of each family’s unique circumstances.
  • Commensurate with what is provided to students without disabilities.

Flexibility and practical realities will dictate each student’s plan. The review of the IEP and the creation of a remote learning plan must be done on a case by case basis.

Will related services be provided?

The ISBE Remote Learning Recommendations does not answer this question directly. It states that “IEP’s remain in place and should direct student’s remote learning.  ISBE recommends collaboration with other staff members as opposed to the provision of direct related services. The decision about providing related services will be made by each school district.

Will the remote learning plan address all the student’s goals?

The answer is likely no. School will likely target a few goals to work on during the remote learning period based on the considerations listed above.

The IEP team will determine what goals can be addressed during the period of remote learning. This will be done via a telephone conference with the parent or video conferencing when possible.

Timelines for evaluations and IEP annual reviews are not waived. These meetings will happen via telephone, zoom or another platform.

Are IEP and evaluation timelines still in effect?

Yes. Except ‘school-day timelines (like the 60-school -day-evaluation timeframe) were tolled from March16-30. That said, ISBE has indicated that calendar day timelines remain in full force and effect. Schools and parents should track the timelines.

Essential meetings (annual reviews, evaluation meetings) related to Section 504 and IEP’s should be held, even if they are held using telephone or video conferencing. There is no requirement that the meetings be held in person. Parents should participate in these meetings. Parents must consent to hold the meeting electronically.

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School Refusal

Posted on March 10, 2020 by Micki Moran

Over the years, I have worked with many families struggling to cope when their child or adolescent refuses to go to school. Typically, by the time parents call my office, the issue of school refusal is already a crisis.

There are many reasons kids refuse to go to school.  In my experience the common reasons are anxiety, depression, a sense of feeling overwhelmed by the demands of school, including the academic and social concerns. It is not an easy time to be in school. Schools conduct lockdown drills, the demands of homework can be overwhelming, social media has ramped up the social pressures, particularly in the middle school and high school age group.

There is a tendency to blame parents when a kid refuses to attend school. It is more manageable when your elementary age child won’t get in the car or won’t get out of bed. I am not minimizing this struggle. However, it becomes much harder when your 14- year old refuses under any circumstances to attend school.  Here is the advice I offer to parents with the caveat that no situation is the same. 

  1. Trust your instinct. You as a parent are much more likely to know the reasons your child is refusing to go to school.
  2. Call the school. If your child has an IEP or 504 Plan, this is a reason to have an emergency meeting with key school staff. The longer school refusal continues the harder it is to get a child back in school and on track again. Below are items for consideration for an IEP or 504 meeting.
  • Identify the problem and possible reason for the school refusal.
  • Discuss if an evaluation or reevaluation is necessary. Time is of the essence so a school’s willingness to evaluate promptly is a key consideration. If the school will not do an evaluation it is important that you consider a private evaluation in order to understand what is going on with your child.
  • Interventions should be put in place as soon as possible.
  • The school should conduct a Functional Behavioral Analysis (FBA) and develop a Behavioral Intervention Plan (BIP).
  • Establish a communication plan with the school and home. It also may be helpful to include outside mental health professionals who are involved with the student.
  • Discuss the issue of truancy. Many of the schools I work with do not resort to charging a student or parents with truancy in cases of school refusal. In my experience, threatening a parent with legal action regarding truancy is unhelpful and damages the partnership that is needed to address school avoidance or refusal. School refusal is not the same as truancy.
  • All your communication with the school regarding the school refusal should be in writing.

3. Consult a mental health professional.

4. Research resources in your community for school refusal programs for students.

5. Think outside of the box. Are there alternatives to traditional schooling that may be an option?

6. Remember this is often a complex problem and one that requires interventions on several levels. It requires an all hands-on deck approach that research indicates requires both school and parental involvement, the use of cognitive behavioral approaches and other strategies to be effective.

Selected Resources:

            Practitioner Review: School refusal: developments in conceptualization and treatment since 2000. (Elliott, Julian, and Place, Maurice,) Journal of Child Psychology and Psychiatry 60:1 (pp.4-15)

   Erika’s Lighthouse

Anxiety and Depression Association of America

            Call our office to discuss options for working with your school and other professionals if your child and your family are dealing with school refusal. mmoran@grundlaw.com. (312)-640-0500

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Support For a Non-Minor Child with a Disability

Posted on February 13, 2020 by Micki Moran

Developmental disabilities occur among all racial, ethnic and socioeconomic groups. Recent estimates in the United States show that about one in six, or about 17% of children ages 3-17 years have one or more developmental disabilities.

1 in 59 children are diagnosed with autism according to the Center for Disease Control and Prevention.

750 ILCS 5/513.5 is the statute that governs the support of an adult child with a disability. This is an increasingly common issue facing parents in the process of divorce or in post-decree matters.  The incidence of children with disabilities has increased and is reflected in the following statistics; families this may mean a lifetime of contributing to the support of a non-minor child with a disability. Increasingly, this is an issue in divorce and post-decree matters.

The Illinois statute reads as follows:

§ 513.5. Support for a non-minor child with a disability

(a) The court may award sums of money out of the property and income of either or both parties or the estate of a deceased parent, as equity may require for the support of a child of the parties who has attained majority when the child is mentally or physically disabled and not otherwise emancipated. The sums awarded may be paid to one of the parents, to a trust established by the parties and for the sole benefit of the non-minor child with a disability pursuant to subdivisions (d)(4)(A) or (d)(4)(C) of 42 U.S.C. 1396p, Section 15.1 of the Trusts and Trustees Act, and applicable provisions of the Social Security Administration Program Operating Manual System. An application for support for a non-minor child may be made before or after the child has attained majority. Unless an application for educational expenses is made for a mentally or physically disabled adult under Section 513, the disability that is the basis for the for application for support must have arisen while the child was eligible for support under Section 503 or 513 of this Act.

(b) In making awards under this Section, or pursuant to a petition or motion to decrease, modify, or terminate any such award, the court shall consider all relevant factors that appear reasonable and necessary, including:

  1. The present and future financial resources of both parties to meet their needs, including but not limited to, savings for retirement;
  2. The standard of living the child would have enjoyed had the marriage not been dissolved. The court may consider factors that are just and equitable;
  3. The financial resources of the child; and
  4. Any financial or other resource provided to or for the child including, but not limited to any Supplemental Social Security Income, any home-based support provided pursuant to the Home-Based Support Services Law for Mentally Disabled Adults, and any other State, Federal, or Local benefit available to the non-minor disabled child.

(c) A used in this Section:

  • A “disabled” individual means an individual who has a physical or mental impairment that substantially limits a major life activity, has a record of such impairment, or is regarded as having such an impairment.
  • “Disability” means a mental or physical impairment that substantially limits a major life activity.

Our office represents parents and children with disabilities and has for over 25 years. The issue of support for adult children has become an increasingly common reason people seek our legal services to assist them in navigating planning and ongoing care for their child who will not be able to be independent.

 Note: Disabled for the purposes of §513.5 is not necessarily the same as “disabled for the purposes of the Probate Act, and it is not a prerequisite that the child first be declared disabled in a probate court proceeding.

Call our office for a consultation to see if we can be of help regarding issues of support for your disabled child or young adult. (312)-640-0500.

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Thinking About Transition to High School for Students with IEPs and 504 Plans

Posted on January 29, 2020 by Micki Moran

At this time of year, elementary and middle schools schedule what are called articulation or transition meetings for students who will be moving on to a junior high or a high school.

The purpose of this article is to provide advice and guidance to get the most out of these meetings and to develop a blueprint for moving forward into the next setting.

  1. Develop an Agenda. Ask yourself what is important for the receiving school to know about your child or teenager? This should be circulated in advance to school staff.
  2. Use bullet points rather than a long narrative.
  3. Share any evaluations.
    • Discuss if any additional evaluations or data are needed.
  4. Prioritize your concerns.  Examples:
    • Social
    • Homework completion and organization
    • Life Skills
    • Independence
  5. Ask the school what their expectations are for your child/typical 9th grader.
  6. Gather information about the middle school or high school.
  7. Talk to other parents
    • Read the handbook
    • Identify the name of the Special Education Director.
    • Schedule a meeting with that person if appropriate.
    • Ask if there is a family support group for parents of students with disabilities.
    • Are there accessibility issues?
  8. Develop a Plan (should be specified in the IEP)
    • What are the attendance policies?
    • What AT is available for my child?
    • Transportation issues?
    • With whom will my child eat lunch?
    • Are there accommodations necessary for lunch or other activities. [For example is eating lunch in an alternative setting an option?]
    • Develop and agree on a communication plan? [ who, how, and how often]
    • Accommodations – should they be different or stay the same?
    • Extracurricular activities.
    • Overall Plan for transitioning.

If your child had a 504 Plan instead of an IEP, you will need to schedule a 504 Meeting. At this meeting, you should share last year’s 504 Plan and discuss the need to develop a new one for middle school or high school setting.

9. Preparing your child for the transition to another school.

  • Is there an orientation scheduled?
  • Does my child need something more? (Walking through the schedule, pictures of the building and classroom)
  • Can my child spend the day at the school (shadow day)?
  • Familiarize yourself with the school activities. Summer school may be an option.

How will the school encourage/teach self-advocacy and independence?

10. What classes will my child take each year (particularly important in high school).

11. In high school the focus should be on the transition plan. The whole point of special education is to prepare a student for what comes next. Where do we want to be when my son or daughter is no longer a student?

12. Involve your child to the extent appropriate. Make sure they have a voice and input into classes, planning activities etc.

Resources: PACER’s National Parent Center on Transition and EmploymentNational Center for Learning Disabilities

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Apps for Divorcing Parents

Posted on January 23, 2020 by Micki Moran
FAQ: Why use a co-parenting app?

It centralizes communication and helps with organization. Even for divorcing or divorced parents it has been my experience that the apps provide a less emotional vehicle for communication. Using an app can also limit the he said, she said phenomenon.

FAQ: What can an app do to help with scheduling?

Most apps provide an ability to use a shared calendar and allow you to provide notice to the other parent in the event of a schedule change. I represent many families with children who have special needs. Often the scheduling complexities of outside therapies, doctor’s visits are daunting to intact families. In divorced families, managing the scheduling is even more daunting. An app that gives a calendar and notifications regarding changes is essential and reduces the stress of constant communication.

FAQ: My ex and I share expenses for our two children. Are there apps that track expenses?

Yes. Not all apps have an expense tracker, but most do. The list of common apps and their features is listed below.

FAQ: My wife has been very verbally abusive on the phone when we discuss anything to do with our kids. Can an app help eliminate the tension or the constant fighting via phone or text?

The answer is yes. The apps aren’t perfect and for someone who is constantly angry they may not resolve that completely. However, I have been involved in high conflict divorces where the court may order that all communication ( with the exception of an emergency) be conducted through an app. This does reduce much of the free-floating anger and allows for more detached communication.

Apps for Coparenting

Our Family Wizard

A divorce couple created the Our Family Wizard platform to help keep communication between co-parents as harmonious as possible. Each parent has their own account, and can then add as many third party, child accounts and professional accounts as the require at no extra cost. Attorneys and mediators are examples of third- party accounts. There is an option extra called a ToneMeter. This is designed to pick up on negative tones in a message and giving you an alternative that’s less likely to start an argument. It also tracks and logs communications, providing access to accurate records that may be used in court proceedings.

Costs: $99.00 per year with a thirty- day money back guarantee. Each parent must subscribe. The ToneMeter is available for an additional $10.00 charge annually.

Talking Parents

Talking Parents is an app that is free for the basic subscription. It has fewer options even with the upgrades at an additionally monthly cost. This app is a good option for parents who want to an ability to communicate with a secure system that allows the parties to keep a record of communications.

Cozi

Cozi is a free co-parenting app that allows you to set up shared calendars, create to do-lists, share photos and other information. The basic version is free. It can be shared with anyone who needs to access the shared calendar and other information. Upgrades are available.

Coparently

  • Shared Calendar
  • Tracks Expenses
  • Mobile Access

Cost is $99.00 per year per parent.

Most of the apps offer a free-trial period. Determine which one works for your situation. Discuss the use of the app with the other parent. The courts in high conflict situations may require parties to utilize apps for communications and this is often incorporated into a court order.

If you are contemplating divorce or struggling to co-parent with the other parent or want advice on how to proceed legally to achieve the best outcomes for you, your children and family. Call me to discuss how our firm can assist you in this journey. (312)-640-0500 or via e-mail at mmoran@grundlaw.com.

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Autism and Police Interaction

Posted on November 18, 2019 by Micki Moran

Over the past several months I have had several cases of young people with autism who have been involved with the police for a variety of reasons. In my practice this is not an uncommon situation. However, I wanted to devote some space in the newsletter to this issue in hopes of informing both parents and professionals that autism does not prevent an arrest. The statistics support the fact that an individual on the autism spectrum is more likely to have an encounter with the police. There are many reasons for the contact but often it is the odd behavior or atypical reactions that can result in police scrutiny. One in 5 teens with autism will have an encounter with the police.

Autistic teens and young adults do get arrested and most of them are unprepared for the interactions with police. Parents and special educators don’t discuss this topic and fail to educate students with autism on how to behave or explain the risks of what they are doing. Here are a few examples of fact patterns that our office has dealt with regarding this issue.

Joe, a 14- year old with autism and a freshmen in high school has a crush on a girl in his math class. He won’t stop staring at her and follows her from class to class. She has asked him to stop following her and has reported this to the assistant principal. The principal warns Joe to leave her alone.  Joe can’t seem to stop following her and in fact decides he needs to try harder to win her over. He puts flowers by her locker and leaves notes every day on her desk in class. Joe lets her know that he wants to kiss her. He finds her address in the school directory and goes to her house. She is alone and when Joe knocks on her door she is scared and calls the police.

The police arrive and Joe starts to run away. He is caught and taken to the station where he is arrested and charged with stalking. Joe is suspended from school and the staff are considering a placement for him at a therapeutic school. Joe’s parents are upset. They are angry at the school and the police since Joe has autism and they believe he shouldn’t be charged with anything.

No one ever talked to Joe about how to interact with girls appropriately. The health class for regular education students discussed sexual harassment and other related issues at length. Joe didn’t take this class since he was in special education. The court has ordered Joe to get counseling for this issue with a therapist who understands autism. He is on probation for two years and is convicted of stalking.

Ellen is verbal but most of her language is scripted. She does not follow directions a lot of the time. If she is upset she will throw herself on the floor and sometimes she will hit her teacher or teacher’s assistant. Her eighth-grade teacher tries to keep Ellen from hurting herself and stands between Ellen and the wall where she is trying to punch the brick with her fist. Ellen hits her teacher in the face breaking her nose. The school resource officer is called. He doesn’t know Ellen and when he enters the room she tries to run out of the room and hits him as she tries to get through the door. The officer recognizes that Ellen has a disability and remains calm while she tries to get around him.  Even though she is in school, the principal calls her parents to let them know that he is going to press charges since she hurt a staff member.

The message I have for my clients is that they need to make sure that their child or adolescent is getting training at whatever level they can understand about how to behave to avoid trouble and if the police get involved how to handle that interaction. Below are a few suggestions and resources:

  • Be sure to have your child or adolescent carry a card or other I.D. that identifies them as an individual with autism. Contact information should be readily available.
  • Remind them not to run.
  • Remind them to remain calm.
  • Rehearse with them the need to keep their hands out of their pants and visible.
  • Talk to the school personnel who teach your child about the need to reinforce these behaviors at school.
  • Plan and practice these strategies
  • Talk to your local police. Ask them about crisis training and let them know your child has autism.

Resources:

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October is National Bullying Prevention Month – October 23, 2019 is Unity Day

Posted on September 24, 2019 by Micki Moran

Bullying is an issue that our office deals with routinely. Students with disabilities can become the target of bullying as well as neurotypical students. This is a tough issue and one that doesn’t lend itself to simple solutions. 

Witnessed Bullying?

  • 70.6% of young people say they have seen bullying in their schools.
  • 70.4% of school staff have seen bullying. 62% witnessed bullying two or more times in the last month and 41% witness bullying once a week or more.
  • When bystanders intervene, bullying stops within 10 seconds 57% of the time.

Been Cyberbullied?

  • The 2017 School Crime Supplement (National Center for Education Statistics and Bureau of Justice) indicates that, among students ages 12-18 who reported being bullied at school during the school year, 15% were bullied online or by text.
  • The 2017 Youth Risk Behavior Surveillance System (Centers for Disease Control and Prevention) indicates that an estimated 14.9% of high school students were electronically bullied in the 12 months prior to the survey.

There is a growing awareness of the problem of bullying which may lead some to believe that bullying is increasing. However, studies suggest that rates of bullying may be declining.

What is the best approach to dealing with bullying? According to the National Organization of School Psychologists they recommend the following:

For adults:

  • Model and teach respectful behavior systematically.
  • Develop, implement and enforce anti-bullying policies.
  • Recognize bullying as a mental health and relationship issue.
  • Use a comprehensive approach to address bullying.
  • Teach responsible use of technology.
  • Provide support to students who may be marginalized (e.g. LGBTQ, religious minorities, and students with disabilities).
  • Address bullying with bystanders and stress importance and responsibility to stop harassment and intimidation.

For students:

  • Report instances of bullying to adults.
  • Stand up to bullying in ways that can be done safely.
  • Show kindness to all students.
  • Reach out to students who are being bullied.

The following are taken from the PACER.org National Bullying Prevention Center:

  • Students with disabilities are much more likely to be bullied than their non-disabled peers.
  • Bullying impacts a student’s ability to learn.
  • Bullying based on a student’s disability may be considered harassment.
  • There are legal protections and provisions for students with disabilities who are being harassed.
  • All states have bullying prevention laws and some have disability specific information.
  • The adult response is important.
  • Students with disabilities have resources that are specifically designed for their situation.

The Individuals with Disabilities Education Act (IDEA).

Individuals with Disabilities Education Act (IDEA) is a federal law. It requires that each child who has a disability and qualifies for special education and related services must receive a free appropriate public education (FAPE). Each state’s Department of Education enforces IDEA. Students with an Individualized Education Program (IEP) would qualify for these protections.

Section 504 of the Rehabilitation Act of 1973 (often referred to as “Section 504”) and Title II of the Americans with Disabilities Act of 1990 (Title II) are the federal laws that apply if harassment denies a student with a disability an equal opportunity to education. The Office for Civil Rights (OCR) enforces Section 504 and Title II of the ADA. Students with a 504 plan or an Individualized Education Program (IEP) would qualify for these protections. 

In October 2014, as part of National Bullying Prevention Month, the U.S. Department of Education’s Office for Civil Rights (OCR) issued guidance to schools reminding them that bullying is wrong and must not be tolerated — including against America’s 6.5 million students with disabilities.

The Department issued guidance in the form of a letter to educators detailing public schools’ responsibilities under Section 504 of the Rehabilitation Act, Title II of the Americans with Disabilities Act, and Individuals with Disabilities Education Act regarding the bullying of students with disabilities. If a student with a disability is being bullied, these federal laws require schools to take immediate and appropriate action to investigate the issue and, as necessary, take steps to stop the bullying and prevent it from recurring.

The letter further clarified that the bullying of a student with a disability on any basis, not just their disability, may result in a denial of FAPE that must be remedied by the school. Under Section 504, the IEP or 504 team should convene when bullying of a student with a disability occurs on any basis in order to determine whether the student’s needs have changed and whether FAPE is still being provided.

The letter also clarified that when OCR receives a complaint related to bullying of a student with a disability, it may investigate whether there has been a FAPE violation, a disability-based harassment violation, or both, depending on the unique circumstances of the case.

View the 2014 Dear Colleague Letter >>>

Resources:

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Section 504 Plans – What is it and Who Qualifies (Part 1)

Posted on September 18, 2019 by Micki Moran

Section 504 is a Federal law that prohibits disability discrimination by recipients of Federal financial assistance. All public schools and school districts, as well as all public charter schools and magnet schools, that receive federal financial assistance from the Department must comply with Section 504.

Who qualifies for a 504 Plan?

  • A student with a disability. This means any physical or developmental condition that substantially limits a major life activity, which can include learning or concentrating.
  • Students are entitled to equal access to programs under 504.
  • Students with 504 Plans are entitled to a free and appropriate public education (FAPE) in the least restrictive environment.
  • Procedural safeguards are designed to protect the rights of students with disabilities ( and their parents), including informed consent, access to school records, the right to appeal and timelines for certain actions.
  • Prohibition against discrimination at private schools (including colleges and universities) that receive federal funding.

The development of a 504 Plan for eligible students.

  • Disability: Under Section 504, an individual with a disability (also referred to as a student with a disability in the elementary and secondary education context) is defined as a person who: (1) has a physical or mental impairment that substantially limits a major life activity (2) has a record of such an impairment; or (3) is regarded as having such an impairment.
  • A diagnosis is not enough. The condition must limit a major life activity.
  • A major life activity includes certain acts a person does such as hearing, speaking, and reading. The list is not exhaustive.
  • 504 includes any major life activity.
  • A student may have a disability and be eligible for Section 504 services, including modifications even if the student earns good grades.

Example: Ella, a student at a highly competitive high school was an A and B student in advanced classes. She was diagnosed with ADHD and an anxiety disorder. Ella spent 7-8 hours every night and on weekends on her homework. She panics when taking tests and rarely finishes an exam. Ella’s parents requested accommodations under Section 504 when she was a sophomore. The school district denied the request based on her grades. The parents requested a 504 hearing. The hearing officer determined that Ella was in fact eligible for 504 accommodations such as extended time on tests and assignments. Ella’s impairment of ADHD and anxiety substantially limited a major life activity.

Note: A student with a disability may be successful academically but may still be substantially limited in a major life activity due to the student’s impairment because of the additional time or effort the student must spend to read, write, or learn compared to others. (Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools, U.S. Department of Education, Office for Civil Rights, December, 2016)

Substantial limitation. The determination of substantial limitation must be made on a case by case basis with respect to each individual student. Section 504 requires that, for elementary and high school students a group of knowledgeable persons use information from a variety of sources. This is often called the Section 504 Team.

  • Section 504 requires that a school provide a FAPE (free, appropriate, public, education).
  • Under Section 504, FAPE is the provision of regular or special education and related aids or services that are designed to meet the individual educational needs of students with disabilities as adequately as the needs of non-disabled students are met and are based on following the procedures of the Act. There is overlap between the IDEA and Section 504.
  • A written 504 Plan documents the process and the services provided to the student.

FAPE under Section 504 includes:

  • Evaluation and placement procedures that guard against misclassification or inappropriate placement of students.
  • Review (reevaluation) of students who have been provided special education or related services and prior to a significant change in placement.
  • Provision of regular or special education and related aids and services that are designed so that the individual educational needs of students with disabilities are met on par with those of the needs of their non-disabled peers.
  • Education in the least restrictive environment to the maximum extent that is appropriate.
  • Procedural safeguards.

Difference between the IDEA (Individuals with Disabilities Education Act) and Section 504

Under the IDEA, a child with a disability means that the child has been evaluated in accordance with the IDEA requirements as having a specified disability and to need special education and related services because of that disability. The IDEA and its implementing regulations list 13 disability categories: autism, deaf-blindness, deafness, emotional disturbance, hearing impairment, specific learning disability, speech or language impairment, traumatic brain injury, and visual impairment including blindness. Section 504 does not list disability categories.

All students with disabilities who are eligible for special education and related services under the IDEA are protected by Section 504 and Title II.

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