Table of Contents
The Office for Civil Rights maintains a variety of resources that may be of use to special education professionals. This page provides an overview of some of those resource along with links to a few additional resources not available from OCR. A reader may always access the Home Page for OCR directly, of course.
OCR Fact Sheet on Supporting Students in Danger of Hurting Themselves.
October 13, 2021. OCR issues Fact Sheet on Supporting Students in Danger of Hurting Themselves During Pandemic.
“The COVID-19 pandemic has caused more than a year of loss, isolation, and uncertainty for many people, including students, across the country. For some students, these stressors may have caused a mental health disability to worsen. Others may be experiencing mental health disabilities for the first time. In some situations, there may be a risk that a student will engage in self-harm or consider suicide.”
OCR Fact Sheet on Supporting Students in Danger of Harming Themseilves During Pendemic
Overview Added July 10, 2021
Below are Frequently Asked Questions on Disability Discrimination.
Also see
Frequently Asked Questions about Section 504.
Regulations OCR Enforces
The most relevant regulations for those responsible for providing services to children with disabilities are the Education Department’s regulations for Section 504 (34 CFR Part 104). If no longer regulations are downloaded for quick and easy reference by a Section 504 Coordinator, those are the most relevant. However, OCR’s enforcement responsibilities when it comes to protecting children’s educational and civil rights go way beyond Part 104. A complete listing with links follows:
| 34 C.F.R. Part 100 HTML | PDF |
Implementing Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in all programs or activities that receive Federal financial assistance. |
| 34 C.F.R. Part 104 HTML | PDF |
Implementing Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability in all programs or activities that receive Federal financial assistance. |
| 34 C.F.R. Part 106 HTML | PDF |
Implementing Title IX of the Education Amendments of 1972, which prohibits discrimination on the basis of sex in all education programs or activities that receive Federal financial assistance. |
| 34 C.F.R. Part 110 HTML | PDF |
Implementing the Age Discrimination Act of 1975, which generally prohibits discrimination on the basis of age in all programs or activities that receive Federal financial assistance. |
| 28 C.F.R. Part 35 HTML |
Implementing Title II of the Americans with Disabilities Act of 1990, which prohibits discrimination on the basis of disability by public entities. |
Communication Rights under ADA Title II and the IDEA Independent, not Coextensive
For decades, the Office for Civil Rights told schools that if they were in compliance with the IDEA, they would also be in compliance with Section 504. That changed in 2013 when the Ninth Circuit handed down its decision in K.M. v. Tustin Unified School District, August 6, 2016. The issue before the court was whether or not the ADA gave deaf and hard of hearing students additional communication rights not granted under the IDEA. The court ruled that failure on an IDEA claim does not necessarily mean that a plaintiff who is deaf or hard of hearing will fail on an IDEA claim. The court ” held that to challenge a facially neutral government policy on the ground that it has a disparate impact on people with disabilities, the policy must have the effect of denying meaningful access to public services. ” The court went on to say that the ADA Title II gave deaf and hard of hearing students rights that were independent of, not coextensive with, the IDEA.
So what does that mean, practically speaking, for public schools? The Office for Civil Rights addressed that issue after reviewing the Ninth Circuit’ 26 page decision above in a ten page Frequently Asked Questions on Effective Communication for Students with Hearing, Vision, or Speech Disabilities attached to a two page November 12, 2014 Letter to Colleague.
Affected readers are encouraged to read both documents in their entirety, as summaries such as provided here are not authoritative and may not be relied upon in an adversarial situation. That said, in the Letter to Colleague, OCR wrote “Title II requires schools to ensure that students with disabilities receive communication that is as effective as communication with others through the provision of appropriate auxiliary aids and services” The FAQ goes on to analyze not just the impact of the Ninth Circuit’s decision but also how the IDEA, ADA, and Section 504 interface in providing communication rights in rather different ways. It also provides a number of examples showing how those rights might be applied to specific cases.
An important point for schools to consider is that the ADA/504 rights apply not only to students but to individuals of all ages. Those rights extend not only to parents with disabilities but to all individuals with disabilities “seeking information from, or access to, the services, programs, and activities of the public school. These individuals also have a right to effective communication.” The FAQ also briefly addresses those issues as well.
Non federal resources (examples)
Section 504 and ADA Obligations of Public Schools National Association of the Deaf
Not Turning A Deaf Ear: How K.M. V. Tustin Unified School District Expands The Rights Of Deaf Or Hard-Of-Hearing Students
Loyola of Los Angelas Law Review
(Updated 10/27/2018)
Service Dogs
There seems to be a considerable amount of confusion over the use of service dogs in public schools. Cutting to the chase, the Department of Justice only recognizes trained dogs as service animals. Additionally, the dog must be trained to provide a specific service with respect to the individual’s disability. A dog that provides emotional support is NOT a service dog under the ADA. However — some states do have laws that permit people to take “emotional support” dogs into public places, e.g., a Lowe’s hardware store. With respect to public schools, however, federal complaints and litigation have revolved around the rights of children to have service dogs in the school setting.
In a memorandum entitled Service Animals, the United States Department of Justice redefined a service animal as a service dog in 2011. Most states have also adopted that definition although a few retain under state law a definition that would include any trained service animal. Theoretically, in those states, a “service animal” could be anything from a monkey to a horse. However, unless those “service animals” were also housebroken they could be barred from schools, restaurants, or some other public places based on their constituting a health risk. Readers are encouraged to check their state laws to see if their state has expanded the rights of a person with a disability. A handy dandy resource has been compiled to make the task easier, but as it is two years out of date this source should not be relied upon: Table of State Assistance Animal Laws. Michigan Legal and Historical Center, Michigan State University.
The DOJ memorandum, instead of clarifying people’s right to the use of service animals, apparently created some additional confusion, because the Civil Rights branch of the Department of Justice issued a clarifying Frequently Asked Questions about Serivce Animals and the ADA.
Schools in particular seem to have had some difficulty understanding that rules prohibiting pets in the school setting must provide students needing a service dog are required to make accommodations for that animal. Prohibiting the child from the use of a service animal “because his one to one assistant can do the same thing” is potentially a violation of his or her civil rights. The Office for Civil Rights addressed that issue when parents complained about a school’s refusal to accommodate their child’s needs in a Letter to Stiles, March, 2013.
With respect to public schools, the DOJ FAQ above provided the following clarification:
“The ADA requires that service animals be under the control of the handler at all times.
In most instances, the handler will be the individual with a disability or a third party who
accompanies the individual with a disability. In the school (K-12) context and in similar
settings, the school or similar entity may need to provide some assistance to enable a particular
student to handle his or her service animal. The service animal must be harnessed,
leashed, or tethered while in public places unless these devices interfere with the service
animal’s work or the person’s disability prevents use of these devices. In that case, the
person must use voice, signal, or other effective means to maintain control of the animal.
For example, a person who uses a wheelchair may use a long, retractable leash to allow her
service animal to pick up or retrieve items. She may not allow the dog to wander away from
her and must maintain control of the dog, even if it is retrieving an item at a distance from
her.”
Also, service dogs must not be disruptive. A school or other public place such as a restaurant or store would be within its rights to ban a dog that barked continuously during a class lecture, for example. However, if the dog barked once if provoked or as a warning that the child was in danger, that would not be considered disuptive nor would it be grounds for banning the dog.
Although there are no legal requirements for a service dog to be professionally trained, professional training can make all the difference between a helpful dog and a disruptive dog. An example of a helpful dog follows:
Video: Basic Service Training
There are a number of training facilities in the United States. One of many examples of their work follow. Inclusion here does NOT imply our recommendation.
Video: Meet the Puppies Training to be Service Dogs Doggie Do Good, a service dog training school in Arroyo Grande, CA
Googling “Service Dogs” and then clicking on “videos” will turn up numerous other training facilities and videos of the dogs they train.
It’s beyond the scope of this brief review to document the downside of the DOJ rules, which is that many people appear to be taking advantage of the loose requirements that need to be met for a faker to claim a dog is a service dog when it is not. The real downside of this, of course, is that it makes life more difficult for people who are truly dependent upon a well trained service dog, as businesses are becoming less accepting–especially when “service dogs” they have accommodated have bitten their waitresses or grossed out other customers by eating off their oweners’ plate. Some states have passed laws that would make fraudulently claiming a dog was a service dog a misdemeanor. however those laws have been notoriously difficult to enforce.
Just one of many examples is this video and article, The Unseen Dangers of Fake Service Dogs in Central Florida. While one article does not a national crisis make, unfortunately another Google search reveals similar articles having been written in newspapers all across the country.
Although the problem of phoney service dog has become an issue in public places like restaurants and stores, it is less likely to become an issue in a public school simply because if a dog owner lied about its qualifications, that lie would quickly be revealed through the animal’s behavior in the school setting. Again, the law is hardly ever exactly what it seems. The law, for example, does not require a person with a disability to produce any documentation supporting their claim that their dog is a service dog. However, should a situation turn adversarial, the child with a disability or that child’s advocates would be required to provide documentation of need and training. Judges aren’t store owners, and they’re just not going to take someone’s word for anything, much less that their canine is a service dog when a school is saying it is not.
Updated 11/21/2018
Court Decisions
There have been several court cases that are on point.
One of the more recent from February 2017 (Fry v. Napolean Community Schools, United States Supreme Court, February 22, 2017), involved a child with a seizure disorder and Wonder, his service dog. The school contended that their staff could do everything or anything Wonder could do. Although the case was remanded back to the Circuit court with a clear standard for determining whether the issue was FAPE (requiring exhaustion of administrative remedies) or discrimination, there is no record of a subsequent hearing, suggesting that the parties may have finally settled outside of court. CBS’s summary is worth a read for a different perspective.
An earlier decision was issued by a Florida District Court (Alboniga v. Broward Country Public Schools, Florida District Court, February 11, 2015 ). This case also involved a child with a seizure disorder with a service dog that could recognize the warning signs twenty to forty minutes before an actual seizure event. Of particular interest in tis case was the allegation by the school’s attorney that the Department of Justice had exceeded its authority in issuing guidance regarding the use of service dogs. The U.S. Attorney’s office countered that claim with a Statement of Interest of the United States of America, wherein in part they stated that the policies therein had been consistent over the preceding 25 years. Cutting to the chase, the court upheld the DOJ’s interpretation of its own regulations. The court further ruled, in favor of the child and parents, that the school must allow the student use of his service animal; that the parents could not be required to purchase additional liability insurance for the dog; or obtain vaccinations not required of any animal brought into the school. In reality, the only accommodation that the parents were actually requesting was that someone accompany the child when his dog needed to urinate. The school argued that they were not required to accommodate dogs. The judge ruled that it was the student they were accommodating, not the animal, again ruling in favor of the parents. .
Tamara vs. El Camino Hospital, District Court, 2013. This was not a case about a child but, instead, about a 70 year old woman who because of her multiple disabilities, It was, however, precedential. the primary disability was a herniated disk but she also suffered from a psychiatric disorder requiring frequent hospitalizations. She used her service dog when walking for balance for retrieving things, and other tasks. She also had a psychiatric disorder. Long story short, the hospital administration told her she would have to go to another hospital because they would not admit her dog under any circumstances. Now, El Camino could have gotten away with it if they could have proved that the dog proved an imminent and direct threat to the patients or staff in the hospital. But that would have required an individual evaluation of the dog which they did not do One of the arguments made by the hospital was that the harness and leash could be used as a weapon by another psychiatric patient. However, they’d already give her a walker, which would have theoretically at least have made a much more effective weapon. The hospital was ordered to complete an individual assessment and to make it decisions on factual data, not generalized medical opinion.
Alejandro v. Palm Beach College, District Court, 2012. Closer in age and conditions. The girl in this case had been diagnosed wit post-traumatic stress disorder, major depressive disorder, attention deficit hyperactivity disorder, and a learning disorder. The issue in this case was that the student wanted to sue the college on the basis of discrimination because it had refused to allow her to bring her psychiatric service dog on campus because she had not demonstrated a need. Without the dog, the girl got an F.
The court only decided she had a right to litigate . . .and that she could bring the dog on campus during the litigation.
However, “following the Court’s order that PBSC must allow Alejandro to access the campus with her dog during the lawsuit, the two parties came to a settlement agreement. Under the agreement, PBSC officials agreed to pay Alejandro $20,000 and her attorneys $79,900. PBSC also agreed to train administrators on disability discrimination laws and the benefits of service animals to individuals with disabilities. Alejandro claimed the money was not important, but insisted that the training aspect be included in the settlement.” Court Decisions Brief.
Kathleen LENTINI, Plaintiff-Appellee, v. CALIFORNIA CENTER FOR THE ARTS, Ninth Circuit, 2004. This precedential case regarding a service dog was also about an adult, not a student. In this case, a public accommodation was required to modify its policies by admitting plaintiff’s service animal; in part due to human-dog bond, modification was “necessary” even though plaintiff could be “accompanied by an able bodied companion, and even though the defendant offered the assistance of specially-trained staff”); 135 Cong. Rec. S.10,800 (1989) (statement of Sen. Simon) (“[a] person with a disability and his service animal function as a unit” such that separating the two generally would generally be discriminatory under the ADA. What is particularly significant is that the Ninth Circuit upheld a district court finding several individuals personally liable for damages, in one instance for $1000, in the other for $5000.
Updated 11/20/2018
News Stories
On this page, OCR had posted its Recent Stories since 2011. It may or may not be significant that the last posting was in September, 2017, with no new news stories posted in 2016. While not all of the news releases pertain directly to children with disabilities, even those apply to all public education children would be equally applicable to children with disabilities. Some of the more recent and relevant subject headings follow. Readers are referred to the link above as each heading provides multiple relevant links to fact sheets, letters to colleagues, etc. Some of the guidance was discussed previously on this page and this page was reorganized to provide that information here.
2016
Resources for Educators on Title VI and Religion
Guidance about the Rights of Students with Disabilities in Public Charter Schools
Use of Restraint and Seclusion in Schools
Resource Guide to Section 504 in Public Elementary and Secondary Schools
Office for Civil Rights Releases ADHD Guidance
7/27/2016: The Office for Civil Rights issued additional guidance for schools regarding children with ADHD. “Over the last five years, OCR has received more than 16,000 complaints that allege discrimination on the basis of disability in elementary and secondary education programs, and more than 10 percent involve allegations of discrimination against students with ADHD. The most common complaint concerns academic and behavioral difficulties students with ADHD experience at school when they are not timely and properly evaluated for a disability, or when they do not receive necessary special education or related aids and services. ” Included in the link above is a 34 page Resource Guide. Additionally, OCR also issued a two page Know Your Rights Document for parents.
Guidance on the Prevention of Racial Discrimination in Special Education
Guidance to Ensure English Learner Students Have Equal Access to a High-Quality Education
Additionally OCR maintains a list of pamphlets in the public domain that may be printed and distributed. The two this writer found the most useful are the two following.
Student Placement in Elementary and Secondary Schools and Section 504 of the Rehabilitation Act and Title II of theAmericans with Disabilities Act (Revised 20190) and
Free Appropriate Public Education for Students With Disabilities: Requirements Under Section 504 of The Rehabilitation Act of 1973 (Revised 2010)
In more specific situations, other pamphlets may prove equally helpful and they may also be downloaded from their Pamphlets section. on Disability Discrimination.
Health Care Plans vs. a Section 504 Plan or IEP
In the past, a number of school systems have tried to meet the needs of children with health problems that might have qualified under Section 504 or even the IDEA with a school health care plan. Obviously a student who only has a health care plan is not entitled under the law to a free appropriate public education nor would she or he enjoy any of the protections available to a child with a disability under Section 504. OCR has addressed this issue multiple times. In one typical finding, OCR ruled that by relying on the health care plan and not initiating an evaluation under Section 504 that the school was in violation because it had circumvented the procedural safeguards in Section 504. Peter Wright has a 4 page essay on his website with respect to this issue with relevant legal citations. Another disadvantage (from a parent’s perspective) is that a Health Plan doesn’t even require that it be developed by a group or committee; a school nurse could write it without any input from anyone. And unless district policy allowed for health plans to excuse absences, federal laws giving students with disabilities a right to that accommodation would not apply.
One paragraph from Peter Wright’s paper.
“The concept of an IHCP is not recognized in or created by the Individuals with Disabilities Education Act (IDEA 2004), Section 504 of the Rehabilitation Act or the Americans with Disabilities Act, Amended Act of 2008 (ADA AA). Each of the three statutes do provide procedural safeguards for the student. An IHCP does not provide any procedural safeguards for the student. If an IHCP is created, to obtain the rights and protections of the preceding statutes, it should be attached to and incorporated by reference into either an IEP or a Section 504 Plan and considered as a part of the IEP or Section 504 Plan.”
If a parent complained to OCR that their child’s rights were being ignored, that could result in the school having to inform every parent of every child on a school health plan of their rights under 504 and the IDEA, including their right to refer the child for an evaluation at public expense.
The right to 504 protections is triggered by any mental or physical disability limiting an individual in a major life activity. The non exhaustive list of major life activities ibarcludes both General and Major Bodily Functions. General major life activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. Major bodily functions also include the operation of a major bodily function, including but not limited to, functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions. Within the context of public elementary schools, however, the school’s burden is imposed any time a major life activity limits a child’s ability to learn. In such cases, the school’s responsibility under 504 is toward children with disabilities is “the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of
nonhandicapped persons are met.”
Other OCR References Regarding 504
OCR does accept and answer questions from the general public, and interested parties can even use email to ask questions or even to file a complaint. However, getting answers can sometimes take a very long time, particularly if a reply in writing is required, and particularly if the person making the query is under a strict timeline for which an answer is required. Fortunately, OCR has published a variety of Q and As and FAQs
With respect to ensuring compliance with federal regulations, OCR maintains a number of FAQs and QandAs that have been updated. One of the most relevant to educators in this reviewer’s opinion was:
Frequently Asked Questions about Section 504.
This document has been a valuable source of information for parents and schools alike for decades but had to be revised after passage of the ADAAA 2008. Readers are encouraged to save this link and/or reference, because with so many additional FAQs on the OCR website, this particular one can be surprisingly difficult to find.
Questions and Answers Regarding the ADA Amendment Act of 2008
(Updated 10/27/2018)
The ADAAA of 2008 (Added October 24 2018)
The ADAAA (link to statute preceding) of 2008 greatly expanded the rights of children with disabilities to be qualified under this Act. This summary does not, of course, carry the force of law, and readers are encouraged to click on the link preceding and to read the Act in its entirely. It isn’t long or laborious reading as is the IDEIA of 2004 or the ESSA of 2018.
Specifically, the Act overturned three Supreme Court decisions. One of its stated purposes was
2) to reject the requirement enunciated by the Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and its companion cases that whether an impairment substantially limits a major life activity is to be determined with reference to the ameliorative effects of mitigating measures;
(3) to reject the Supreme Court’s reasoning in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) with regard to coverage under the third prong of the definition of disability and to reinstate the reasoning of the Supreme Court in School Board of Nassau County v. Arline, 480 U.S. 273 (1987) which set forth a broad view of the third prong of the definition of handicap under the Rehabilitation Act of 1973;
(4) to reject the standards enunciated by the Supreme Court in Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms “substantially” and “major” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled,” and that to be substantially limited in performing a major life activity under the ADA “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives”;
(5) to convey congressional intent that the standard created by the Supreme Court in the case of Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002) for “substantially limits”, and applied by lower courts in numerous decisions, has created an inappropriately high level of limitation necessary to obtain coverage under the ADA, to convey that it is the intent of Congress that the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations, and to convey that the question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis
The Act clarified that children who are only regarded as having a disability would only be entitled to civil rights protection (e.g., a child with HIV who was regarded by his school and discriminated against on the basis could invoke civil rights protections under this Act.).
However it also opened the possibility for children who had a record of a disability to still receive accommodations when needed.
Also, while a school could still consider mitigating factors in determining what services a child might need, it could no longer consider them when contemplating eligibility. Previously, only children who had a disability (the first leg of the federal definition) could qualify for accommodations. An example of a child qualifying under the “record of” leg might a student with a heart condition that had been corrected by surgery to omplete without penalty assignments missed even though the physical disability was no longer present. Another example would be a child who suffered from recurrent cancer. Even if the cancer was in remission. Further, an individual with a record of a disability would be entitled to a reasonable accommodation currently needed for limitations resulting from or relating to the past substantially limiting impairment.
Marilyn Bartlett v. the New York Board of Law Examiners, District Court, 2001 (Added Friday 13, 2018)
Bartlett v. the New York Board of Legal Examiners is an old case involving an individual who had been denied accommodations for the bar exam in New York. It was a district court case, and it was ultimately decided on standards that were modified by Congress when it passed by the ADAAA or 2008. Nevertheless, the testing debate between Nancy Mather and Dawn Flanagan about the appropriate interpretation of testing results when determining eligibility for accommodations under Section 504 and the ADA. The case, ultimately decided by Sonia Sotomayor, now a Supreme Court Justice, remains relevant even today.
504 Resources and Sample Forms from Florida (12/14/2017)
Section 504 regulations, compared to those for the IDEA, are remarkably brief, and there are few explicit requirements for documentation. Additionally, spedlaw litigation based solely on Section 504 has been reported rarely in comparison to litigation based on IDEA. Nevertheless, with an increasing emphasis on progress monitoring under both the IDEA and within the context of state MTSS guidelines, it would seem prudent to document that the accommodations specified in a child’s 504 Plan were being implemented with fidelity.
LRP recently recommended to its members that they review the Pasco County, Florida progress monitoring forms on their website. For your convenience, links to those sample forms from Pasco’s website are provided below. The key word in the sentence above is “sample.” These forms should be tailored to reflect the specific, individualized accommodations/modifications actually found in the student’s 504 Plan; each teacher would complete the individually tailored form each day and return it at the end of the week to the 504 Coordinator or his/her designee in each school.
Sample forms from Pasco: Click here for sample forms.
The data gathered can help determine whether or not a student’s 504 Plan needs to be revised. Additionally, if an accommodation in a 504 Plan is NOT being used, using (and reviewing) these forms can serve as an early alert, allowing the 504 Coordinator an opportunity to find out “why” before it becomes a parent issue.
Despite the brevity of the OCR regulations (which carry the force of law), Florida’s Department of Education has published a 160 page book detailing how those regulations should be put into effect and documented. If you are interested, “Click here.
Revised Department of Justice ADAAA Regulations, Effective October 11, 2016
SUMMARY: The Department of Justice (Department) is issuing this final rule to amend its Americans with Disabilities Act (ADA) regulations in order to incorporate the statutory changes to the ADA set forth in the ADA Amendments Act of 2008 (ADA Amendments Act or the Act), which took effect on January 1, 2009. In response to earlier Supreme Court decisions that significantly narrowed the application of the definition of ‘‘disability’’ under the ADA, Congress enacted the ADA Amendments Act to restore the understanding that the definition of ‘‘disability’’ shall be broadly construed and applied without extensive analysis. Congress intended that the primary object of attention in cases brought under the ADA should be whether covered entities have complied with their statutory obligations not to discriminate based on disability. In this final rule, the Department is adding new sections to its title II and title III ADA regulations to set forth the proper meaning and interpretation of the definition of ‘‘disability’’ and to make related changes required by the ADA Amendments Act in other sections of the regulations.
The JDSUPRA Business Advisor advised its readers on 10/5/2016:
Of particular significance is the addition of attention deficit hyperactivity disorder and dyslexia to the list of examples of mental and physical impairments, and the addition of “writing” and “interacting with others” to the list of examples of major life activities (which also include caring for one’s self, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, reading, speaking, breathing, learning, concentrating, thinking, communicating, and working, in addition to the operation of major bodily functions). Further, the new regulations add a new section on “predictable assessments” which list a number of impairments that “in virtually all cases” will result in a determination that an individual has an actual disability. The list of such impairments include major depressive disorder, bipolar disorder, post-traumatic stress-disorder, traumatic brain injury, obsessive compulsive disorder, and schizophrenia (the list also includes: deafness, blindness, intellectual disability, partially or completely missing limbs, autism, cancer, cerebral palsy, diabetes, epilepsy, and HIV).
Click here for the full text of the Title II, Title III, and ADA Final Regulations Effective October 11 2016
New Guidance from OCR regarding children with ADHD
New 7/27/2016: The Office for Civil Rights has issued additional guidance for schools regarding children with ADHD. “Over the last five years, OCR has received more than 16,000 complaints that allege discrimination on the basis of disability in elementary and secondary education programs, and more than 10 percent involve allegations of discrimination against students with ADHD. The most common complaint concerns academic and behavioral difficulties students with ADHD experience at school when they are not timely and properly evaluated for a disability, or when they do not receive necessary special education or related aids and services. ” Included in the link above is a 34 page Resource Guide. Additionally, OCR also issued a two page Know Your Rights Document for parents.
Comparison of 504 and the IDEA
The primary (not the only) difference between Section 504 and the IDEA is that in order to qualify for services under Section 504, a student would only need related services or modifications in order to receive a free appropriate public education (FAPE) whereas under the IDEA, a student must need specially designed instruction (special education) in order to qualify. Nevertheless, while FERPA replaces HIPAA with respect to student records, IDEA does NOT replace Section 504. All disabled children are protected by Section 504 of the Rehabilitation Act, which is why parents of children receiving special education have the option of filing an ADA/504 directly with OCR. (Parents of children receiving special education must file procedural complaints with the State Educational Agency. ) However, OCR has always taken the position, a position supported by the federal regulations, that disabled students have the same right to FAPE as students entitled under the IDEA. Therefore, while Section 504 only guarantees employees in the workplace “reasonable accommodations,” that same limitation does not apply to students, who are entitled (as under IDEA) to whatever special education, related services, technological support, or reasonable modifications that might be necessary to provide FAPE. FAPE under Section 504, however, is defined a little differently than under the IDEA. The courts have variously defined FAPE under the IDEA as an education that provides a student with more than non trivial benefit, whereas 504 requires that students receive whatever services might be needed to level the playing field. Or in the language of the 504 regulations themselves (see link to 34 CFR 104 above),
(b) Appropriate education. (1) For the purpose of this subpart, the provision of an appropriate education is the provision of regular or special education and related aids and services that (i) are designed to meet individual educational needs of handicapped persons as adequately as the needs of nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the requirements of §§ 104.34, 104.35, and 104.36. 34 CFR 104.33
Although parents have essentially the same rights under 504 as they would under the IDEA to administrative remedies and state or federal courts to resolve disagreements, there are nevertheless some other differences that may be important under some circumstances. I’ve listed some below.
- Manifestation hearing required before suspending student for more than ten consecutive days: IDEA: Yes. 504: Yes
- Entitled to services when Code of Conduct violation a manifestation: IDEA: Yes. 504: Yes.
- Entitled to services when NOT a manifestation: IDEA: Yes. 504: No.
- Parent consent for testing required: IDEA: Yes. 504: Yes, according to the Office for Civil Rights
- Parent participation required in planning services: IDEA Yes. (IEP team) 504: No. (504 Committee)
- Parent consent required before implementation of services: IDEA (IEP): Yes. 504 (504 Plan; No)
- Schools receive additional funding for child with disability IDEA: Yes. 504: No.
Question: Are all the rights held by disabled children specified in the IDEA or Section 504?
Answer: The answer, of course, is no. There are a number of other federal laws that may be invoked by the parents of children with disabilities in an effort to insure that they receive all the services to which they are entitled. Title VI and Title IX of the Civil Rights Acts are also enforced by the Office for Civil Rights. Parents of children with disabilities would have the same rights as the parents of any child to seek redress of alleged discrimination based on race, color, national origin, or sex in federal courts. While administrative remedies must be exhausted before seeking redress in the courts when parents allege that a school failed to provide their child with FAPE, not all alleged injuries incurred by children with disabilities in school are educational injuries. In those cases where FAPE is not an issue and administrative remedies could not provide the relief sought by parents (e.g., damages), they may apply directly to federal district court. Administrative remedies are available under both the IDEA and 504 when FAPE is an issue between a school and parent. Admnistrative remedies are not available in those rare instances where the disagreement is between parents and the state; in those uncommon instances parents may also apply directly to the federal courts.
While the guidance above is helpful, guidance does not necessarily carry the force of law. Federal law, of course, does because it IS the law. The Americans with Disabilities Act of 2008, unlike the implementing regulations issued by the EEOC, is not very long and can be read in its entirety at the following link:
Americans with Disabilities Act Amendments Act of 2008
The EEOC issued revised regulations for application in the workplace in 2011. The difference between the burden of employers and the burden of school administrators is that employers are only required to provide “reasonable accommodations” whereas the regulations for schools from Office for Civil Rights in the United States Department of Education (see link above) require schools receiving federal funds to provide children with disabilities FAPE. Nevertheless, the EEOC’s regulatory implementation of the changes brought about by the 2008 ADAAA can be very helpful in clarifying the Congressional intent. Those regulations are available for download on this website at:
Children with learning problems who do not qualify for special education may still qualify for services under Section 504 based on a diagnosis of dyslexia or specific learning disorder (DSM 5). While the EEOC regulations apply to adults in the workplace, the criteria that they suggest be considered for individuals with learning disabilities are based on the ADAAA and, therefore, are also applicable to educational decisions in schools. Excerpts from the EEOC (link above) regulations above are provided below.
Thus, someone with a learning disability may achieve a high level of academic success, but may nevertheless be substantially limited in the major life activity of learning because of the additional time or effort he or she must spend to read, write, or learn compared to most people in the general population. As Congress emphasized in passing the Amendments Act, ‘‘[w]hen considering the condition, manner, or duration in which an individual with a specific learning disability performs a major life activity, it is critical to reject the assumption that an individual who has performed well academically cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking.’’ 2008 Senate Statement of Managers at 8. Congress noted that: ‘‘In particular, some courts have found that students who have reached a high level of academic achievement are not to be considered individuals with disabilities under the ADA, as such individuals may have difficulty demonstrating substantial limitation in the major life activities of learning or reading relative to ‘most people.’ When considering the condition, manner or duration in which an individual with a specific learning disability performs a major life activity, it is critical to reject the assumption that an individual who performs well academically or otherwise cannot be substantially limited in activities such as learning, reading, writing, thinking, or speaking. As such, the Committee rejects the findings in Price v. National Board of Medical Examiners, Gonzales v. National Board of Medical Examiners, and Wong v. Regents of University of California. The Committee believes that the comparison of individuals with specific learning disabilities to ‘most people’ is not problematic unto itself, but requires a careful analysis of the method and manner in which an individual’s impairment limits a major life activity. For the majority of the population, the basic mechanics of reading and writing do not pose extraordinary lifelong challenges; rather, recognizing and forming letters and words are effortless, unconscious, automatic processes. Because specific learning disabilities are neurologically-based impairments, the process of reading for an individual with a reading disability (e.g. dyslexia) is word-by-word, and otherwise cumbersome, painful, deliberate and slow— throughout life. The Committee expects that individuals with specific learning disabilities that substantially limit a major life activity will be better protected under the amended Act.’’ 2008 House Educ. & Labor Rep. at 10– 11. p. 17012-13 (Emphasis added.)
Federal Guidance on Grading and Diplomas
Letter to Runkel 2008
Archived OCR Guidance on the Use of Tests in High Stakes Testing
The Use of Tests in High Stakes
Student rights under Section 504
Student Placement in Elementary and Secondary Schools and Se
Rights of students with disabilities preparing for postsecondary education under Section 504
Students with Disabilities Preparing for Postsecondary Education
Some Oldies but Goodies
Public school responsibilities for students entering higher institutions of learning
Letter from Monroe (2007)
No financial limitation on schools’ responsibility to provide FAPE
Letter to Zirkel re Section 504 FAPE
Joint Memorandum on schools’ responsibilities when ADHD suspected
Joint Policy Memorandum on ADD 1991
Clarification of the Joint Memorandum above
Clarification of School’s Responsiblity to Evaluate
In the Joint Memorandum above, OSEP and OCR issued a Joint Memorandum in which they emphasized that both the IDEA and Section 504 required schools to provide medical evaluations at no cost if ADHD was suspected. The 1993 Clarification was issued by OCR because apparently many parents were interpreting that to mean that if they requested an ADHD evaluation, then the school was required to provide it. Not so. The school IS required to pay for the evaluation but ONLY if it shares in the parent’s suspicion. If it does not, the school may decline the parent request but must also provide them with their due process rights in writing, including of course the right to appeal.