Understanding Section 504
Questions like these have mystified educators across the country for decades:
- How is a Section 504 plan different from an IEP?
- Do they have different goals, different criteria?
- How do you decide which is appropriate in a given situation?
- Are your 504 eligibility determinations and plans compliant? How can you be sure?
In this 7-part video series, education law attorney John Comegno of the Comegno Law Group demystifies 504 by walking you through the seven core concepts of successful 504 implementation and compliance that can limit your potential liability.
Learn how to address individual need, plug that need into a compliant process and make sure 504-eligible students are making progress.
Episode 1: Introduction to Core Concepts of Section 504
Do you know your history when it comes to Section 504?
In this episode, we dive into the Rehabilitation Act and the Americans with Disabilities Act (ADA) to discuss how and why they came about, what was intended in passing them, and what was not intended, from a legal perspective.
We review how the Americans with Disabilities Act tracks Section 504 — and show how several important cases and events have influenced this legislation over time.
Questions answered in this episode:
- What’s the goal of a 504 plan?
- Is compliance with 504 the same as compliance with the ADA?
- How do you decide if you should use a 504 plan or an IEP to address a student’s disability?
Hi, I’m John Comegno from the Comegno Law Group. Is Section 504 different than the IDEA? Is the Section 504 plan different than an IEP? Are the rights of IEP students different than the rights of Section 504 students? How are they different? Are the goals of Section 504 Rehabilitation Act of 1973 different than the goals of the Individuals with Disabilities and Education Act (IDEA)? Where’s the line? How do we decide? How do we decide which door we go in, which vehicle we use?
If those lines are unclear to you, if those lines are fuzzy, if they’re vague, if they’re gray to you and to your colleagues, you’re not alone. That question — whether 504 is the vehicle you use to address disability or whether IEP is the vehicle you use to address disability — is a question that has plagued, that has haunted, that has teased educators across the country for 40 some years. Today, we’re going to talk about the differences in these laws. We’re going to talk about where 504 came from. Understanding where disability laws evolved from aids us in understanding truly what Section 504 is and, perhaps more importantly, what it’s not. Where do we begin?
We begin, interestingly, in 1954. It’s somewhat amazing to me that it took up until 1954 for the US Supreme Court to proclaim that different, so-called separate, is not equal in public education in the United States. 1954. We look back to the forties, the thirties, the twenties, and prior to that time, discrimination based on all sorts of different distinguishing characteristics, demographic characteristics was legal, was permitted.
In Brown v. Board of Education, the US Supreme Court tells us that school districts can’t provide different based on some arbitrary demographic. In Brown, that characteristic was race, was skin color. So-called, “separate but equal,” is not equal, is illegal, is unconstitutional. Brown didn’t focus on disability. Brown didn’t focus on dyslexia, or autism, or cognitive impairment, or emotional disturbance, or social maladjustment, those kinds of terms that we hear in special education today. It didn’t focus on ADHD, it didn’t focus on diabetes, concussion, the type of medical issues or, at times, the educationally diagnosed difficulties we see in 504 today. But what’s important to understand is that the US Supreme Court in Brown told us we can’t treat different based upon an arbitrary criteria, that all students, regardless, are entitled to public education across the country. That was 1954.
In 1965, 1970, are we still discriminating? Is our country still labeling? Is our country still excluding, and isolating, and stigmatizing? Yes, it is. Statistics in the early 1970s are that over a million students not educated at all, institutionalized, isolated, put in state homes, state facilities. The doors of that local school district, the doors of that neighborhood school closed. Three and a half million warehoused, not receiving any service at all.
The US Supreme Court recently in the Endrew decision, talked about tragic stagnation. It’s in that backdrop, it’s in that climate, it’s in that context that we talk about an evolution of rights of disabled persons and students for our purposes as educators.
In 1954, the US Supreme Court said in Brown, separate is not equal, we can’t treat differently. We see, through the 1960s, an evolution in our awareness of civil rights, the civil rights movement gives a voice to disabled persons. It gives hope, gives opportunity to disabled persons. But disabled persons are not protected despite efforts in the Civil Rights Act of the 1960s. There was an effort by Senator Hubert Humphrey, incidentally, who had a grandchild diagnosed with Down Syndrome, to include disabled persons in the Civil Rights Act specifically in 1964, which failed. 1954, 1960s, early 1970s, we see still that stagnation, that isolation.
The first legislation that’s passed that addresses disabled persons with regard to the provision of service or employment in public entities is called the Rehabilitation Act of 1973. What is the Rehabilitation Act of 1973? Have you heard of it? Do you speak of it? Do you have Rehabilitation Act plans in your schools? You don’t. Because we don’t refer to this law by its name. We refer to this law by its 504th Section. The fact that we don’t even know the name of this law only underscores our lack of awareness nationally, unfortunately, about what 504 is. It’s likely that wherever you’re viewing this from, your state doesn’t even have state (504) regulations, very different than IDEA, right? So how do we understand it?
Let’s talk about what its intention was in 1973. Passage of the Rehabilitation Act was not focused on students in your schools that have physical or mental impairments that impact major life activities. It wasn’t focused on the student with the attentional difficulty, wasn’t focused on the student with a mental health difficulty that’s preventing appropriate peer relationships. It wasn’t focused on the student that may have dyslexia, that may have difficulty in processing, students who we recognize today that are likely eligible for 504 accommodation.
The goal and focus of the Rehabilitation Act was to address disabled veterans coming home from the Vietnam conflict. It was discrimination against those persons that the US Congress stepped up to prohibit. In fact, it took seven years to even have enabling regulation. It took years beyond that for public schools to see an application of 504. That may explain a lack of understanding and an awareness of what 504 is today.
What’s the goal of 504? Centrally, if we boil it down, the goal and the intention of 504 is not to change the employment experience. It wasn’t then. Today, the goal and purpose of 504 is not to change the educational experience for eligible students. In another segment we’ll talk about the eligibility criteria. Now, just focusing on intent and purpose. The intent and purpose of the Rehabilitation Act is not to change the experience for our students. In fact, it is to ensure that the experience of public education for eligible students is the same. It’s the same experience as their non-disabled peers are entitled to. And that’s because our 504 students are not special education students, they’re general education students.
We can sum up 504’s intent in four words. Thou shall not discriminate. Thou shall not treat differently. Thou shall not provide so-called separate but equal. We’ll speak later as to the impact of the difficulty. We’ll speak later, in a different segment, as to the criteria. But again, understanding what 504’s goal is — 504’s goal is to prevent disparate treatment.
Look at the meat. The meat of 504 speaks to exclusion. It speaks to denial of benefits. It speaks to disparate treatment. The language, “No otherwise qualified individual with a disability…,” and those are all terms that we’ll define in separate segments and I hope you tune into them as well. “No otherwise qualified individual with a disability shall, by reason of the disability, be excluded.” You can’t exclude, deny benefit of. You can’t provide different. You can’t deny benefit to one group of students or one individual student because they might be able to not access because of the disability. You have to accommodate or subject one to discrimination. Thou shall not discriminate. That’s the standard. Whether we’re speaking of employees, whether we’re speaking of students, 504’s mandate is a negative mandate: don’t discriminate.
504 doesn’t talk about 504 plans. 504 doesn’t define a 504 committee. 504 doesn’t even speak to the breath of accommodations that we’re expected to provide and that’s because its intention is not expand or change the experience. Its intention is to prevent discrimination, to ensure that the eligible students’ experience is the same as the general education peers. Thou shall not discriminate. Can’t treat different.
We’ve seen an evolution over time, an awareness, a growing awareness of what 504 is. And at some point, in my experience, the roads get crossed. 504 plans are looked at as IEP lights, they’re looked at as IEP juniors, they’re looked at as a step down. We should not have that perspective. We should ensure that our 504 process is a separate road than our IEP process because the goals of these laws are separate. The intention of the Rehabilitation Act is not to expand the experience, which is part of the intention of IDEA.
When we look at decisions like Board of Education v. Rowley in 1982, defining FAPE. When we look at other decisions from courts and looking at the role of parents and their participation, we may be guided by them, but we must be mindful that those decisions don’t directly address, and control, and explain what the intention is of 504.
Brown in 1954, growing awareness of the rights of disabled persons through the sixties. The Rehabilitation Act in 1973, Section 504, applied to public entities only, public employers, public schools. We see, through the 1980s, a growing awareness that disabled persons, because private employers, private entities are not specifically bound by war, fall within the purview, the ambit of the Rehabilitation Act, that there’s a need to address the rights of disabled persons in the private sector.
So, after a series of court decisions that really teed this issue up, the US Congress passes, after introduction in 1989, in 1990 the Americans with Disabilities Act, the ADA. We can look to the ADA and Section 504 as almost the same. Individuals, whether they’re students or whether they’re employees in the private sector, protected by the ADA follow the same eligibility criteria. The enforcement mechanisms between the ADA and 504 are the same.
If we look to the law of the ADA at 42 U.S. C. § 12132 and § 12133, we can see there’s a prohibition of discrimination on the basis of disability. Those persons may not be excluded, may not be subject to disparate treatment, may not be denied the benefits of programs. Sound familiar? Look familiar? It’s the identical language from the Rehabilitation Act. In fact, the enforcement mechanisms that we see under the ADA are the same as the enforcement mechanisms under the Rehabilitation Act of 1973, or Section 504.
We don’t often speak to ADA in public school because ADA relates to the private sector, principally. But you should be aware that Title II of the ADA does directly apply to public schools. So, that means we need to be aware of access. We need to be aware that access under Title II, as directly applied to public schools today, is another responsibility within our public schools. Hottest topic today Title II ADA is service animals. But we could also be speaking to the provision of service for students with allergies. We could be speaking towards accommodations we typically see in Section 504 Plans.
What’s the takeaway? What’s the lesson? Compliance with 504 is compliance with the ADA. Compliance with Section 504’s direction that we not discriminate, that we accommodate. Make sure that we follow, and we’re consistent and compliant with Title II of the ADA.
People often speak to 504’s direction as leveling the playing field. You may not be aware, but playing fields aren’t level. We ought to be speaking of access. We ought to be mindful that similar to our best practices in IDEA, focusing on need, and process, progress, when we speak to 504’s direction, 504 focuses also on individual need. We’ll be speaking in a different segment about the criteria. The criteria speaks to impact. 504’s direction that we shall not discriminate looks to the impact, looks to the need. There has to be a need. This isn’t driven solely by a diagnosis.
We can’t discriminate on the basis of that disability. How do we do that? Do we do that by developing the plan that the law requires? As I said, the law doesn’t require a plan. The law requires that we be mindful of that individual need and that we accommodate that individual need.
So again, and in summation, what is 504? 504 is civil rights legislation. 504 doesn’t expand the rights of our students, it protects the rights of our students. Let’s make sure that we’re accommodating, we’re not changing their experience but we’re enabling access, we’re preventing exclusion, we’re preventing a different experience by the provision of accommodation.
I’m John Comegno. Thank you for tuning in. Be careful out there.
Episode 2: Understanding the Section 504 Eligibility Criteria
To make informed Section 504-eligibility decisions, based on specific criteria, you need to gather high-quality 504 eligibility data.
In this video, find out which data you’ll need to make compliant 504 decisions. Learn what constitutes a physical impairment and a mental impairment — and what is meant by the term “major life activity” when determining student or staff eligibility.
Learn how important cases have shaped these criteria and definitions over time.
Questions answered in this episode:
- How do you follow a compliant process when determining 504 eligibility?
- What is meant by the term “major life activity” when determining 504 eligibility?
- How do learning disabilities like dyslexia factor into 504 eligibility decisions?
Understanding the Section 504 eligibility criteria. What is the eligibility criteria? What is it not? Is 504 simply, “provide a medical diagnosis begets a 504 plan?” or is it not? Hi, I’m John Comegno from the Comegno Law Group. Today, we’re going to be talking about what the criteria is, why understanding what the Section 504 eligibility criteria is is crucial to compliant delivery and implementation of Section 504’s mandate.
In other segments we’ve spoken to the difference between 504 and IEP. We’ve spoken about what 504 is. We recognized that 504 is not about expanding rights, it’s not about changing the experience, it’s not about creating educational rights, it’s about protecting educational rights.
What does that mean? How does one find themselves eligible? How is the student with the broken leg eligible, but the student with the sprained ankle not eligible? Or is the student with the sprained ankle eligible and the student with the broken leg not eligible? Is 504 eligibility focused on mental health issues? Is it focused on medical diagnosis?
The student who used to be specific learning disability (SLD) eligible for an IEP but has been declassified, no longer found eligible, do they automatically receive a 504 plan? Is the 504 plan a consolation price? We speak specifically to that issue in another segment. But the answer to these questions turns on understanding what the eligibility criteria is. 504 is not about producing a piece of paper like a medical diagnosis, like a former IEP, even like a former 504 plan and automatically receiving a new 504 plan. 504 is about preventing discrimination. It’s about enabling access through the provision of 504 reasonable accommodation. The trigger, the determinant, the decision as to how and when and why that 504 plan is required, how that individual, that student or that employee is eligible, involves an understanding of the criteria.
What is the eligibility criteria, and how does it fit in to this mandate under 504, this direction, thou shall not discriminate? Again, 504 doesn’t define the players, doesn’t define the process, doesn’t define who sits at the table, how and when and why and where. It simply says, “No otherwise qualified individual with a disability on account of that disability shall be excluded, denied benefit, treated differently.” It doesn’t come out and say, “This is the eligibility criteria.” How do we determine what the eligibility criteria is when we look to, then, what the definition of disability is?
We’ll speak later somewhat to these concepts of, “regarded as” and “record of impairment.” But for best practice purposes, for making sure that we’re compliant in how we’re implementing Section 504, we need to consider, at the table, what the definition of disability is. That definition of disability has two prongs. Those prongs need to be answered by current, objective, clear, sound data. Since we don’t have regulations that define that, that means that you, your schools, your districts, your institutions have to be consistent vertically and horizontally, and I did not just bless you.
How do we look at that definition at the elementary level? How do we answer the question of what the eligibility criteria is at the elementary level? It has to be the same at the middle. It has to be the same at the high school. Horizontally, Elementary A can’t simply accept the medical diagnosis without plugging into a criteria while Elementary B doesn’t ask the questions at all, and will evaluate through special education, but then provide a 504 plan. Over at Elementary C, they don’t even provide 504 plans. It’s a recipe for disaster. It’s a recipe for failure.
We need to recognize that there is an eligibility criteria. We need to understand what it is objectively, and we need to implement it consistently. Let’s remember what I refer to as the “Comegno, so what?” which is born out of empathy, care, consideration and love. So what? Billy’s got ADHD. So what? Johnny broke his leg. So what? Now, I’m not saying, “So what?” flippantly. What I’m saying is, “What’s the impact?” That’s the question you need to ask because the eligibility criteria focuses on impact.
Remember our key principles, our governing best practice points: need, process, progress.
What does that individual need? There is no presumptive eligibility under 504. That means that an individual that comes in with a diagnosis is not automatically entitled to a plan. It means we need to ask the questions. It means we need to recognize what the criteria is.
In another segment, we’re going to speak to otherwise qualified. Otherwise qualified is a battlefield today. Otherwise qualified is a place where many institutions can avoid 504 exposure. Otherwise qualified for our purposes right now simply means that one is able to complete the essential tasks or duties of their position regardless of accommodation when we speak to employee. Otherwise qualified for a student means that they have a right to be in our school, in our public schools, pre-K to 12. They’re of the right age and they’re in the right grade. For college, university, they’ve been accepted. Assuming that those factors apply, those individuals are otherwise qualified. Again, if you have more questions on otherwise qualified, tune in to that segment. It’s a compelling issue today.
Here, we’re going to talk beyond otherwise qualified to the eligibility criteria. What are the questions? How many prongs are there? There are two. They’re not three. They’re not four. Five is right out. Two prongs, two questions. No presumptive eligibility. No prescription blank diagnosis begets a plan. We need a yes to both of these questions. If we do not have a yes to both of these questions, then the individual is not eligible. What’s the first question? The first question is, whether or not there’s a physical or mental impairment. We’re going to define what that is. That typically is provided through medical diagnosis, but we need to ask the question of what’s the impact of that physical or mental impairment? There is a physical or mental impairment and that physical or mental impairment substantially limits one or more major life activity. There’s impact. There’s need.
504 prohibits discrimination. It prohibits discrimination and exclusion, lack of access when we consider the impact of their physical or mental impairment, physical or mental impairment which substantially limits one or more major life activity.
Let’s define those terms. Physical impairment. The feds recognized in 1973 with passage of the Rehabilitation Act and defining disability that, if they had also given to us regulations that listed every disease and condition and syndrome and disorder which equaled physical impairment, then that direction would be outdated by 1974, maybe earlier. Instead, what the feds clarified in defining what physical impairment is, and we see this in the regulations, what they did was to note all the physical systems. They note neurological, musculoskeletal, special sense organs, respiratory, cardiovascular. All the systems are noted with the conditioning language that any disease or condition, any disfigurement, any loss affecting any one or more of those body systems equals physical impairment. You know what? That’s anything because all the systems are referenced and the words “any” is used. Any means any. Any. Any issue affecting anybody system equals physical impairment.
For my purposes as a disability rights litigator, as an educator and educational law attorney, as an attorney representing primarily schools, that means that the diagnosis itself typically isn’t the issue. The issue is how current is that diagnosis? Does that diagnosis have validity? Do we have data that we’ll take us from simply the diagnosis towards the second prong? But for our purposes, physical impairment means any issue affecting any physical system.
What about mental impairment? That’s second half of the first question, physical or mental impairment. We’re up to the DSM-5 now. Any disorder listed in the DSM-5 may equal mental impairment. Cognitive impairment, brain syndrome, dystonia, oppositional defiant disorder, obsessive compulsive disorder, or attentional difficulties, somatoform disorder, anything that we may see diagnosed from the DSM may constitute a mental impairment.
What about specific learning disabilities? What about dyslexia now that we have certain normed, national definitions? What about processing difficulties? What about difficulties in computation and comprehension, those special ed-ish difficulties? Might we see those as mental impairments that might make one eligible for 504 protection? The answer is yes. We may plug in those difficulties in the first end of that criteria, just like we might plug in any other medical condition. Please don’t think that the criteria only involves medical diagnosis. It involves any physical, any mental impairment. But we need to plug in to the next prong. We need to look at substantial impairments, substantial limitation of major life activity. We’ll talk about that in a moment.
I want to talk about an interesting case before we get to there, looking at physical or mental impairment. There’s a case at a Central District of California, that case is still pending, involving Compton Unified, an area of LA that’s plagued with violence and poverty. A class of current and former students challenged, essentially, whether or not one needed to have a standalone diagnosis of physical or mental impairment in order to be considered for 504 eligibility, with the argument that, in depressed communities, the trauma experienced by members of the community, again, in a socioeconomically distressed community, one where we’ve got the plague of illegal substances, violence, issues with nutrition, issues with housing, sustenance, family structure, whether or not the impact in the so-called “complex trauma” that those individuals have been subjected to could result in so-called neurobiological effects constituting a physical or mental impairment. That trauma then substantially are limited to major life activities.
Plaintiffs allege that they were denied certain benefits of certain programs on account of how they presented, how their learning style was impacted by that trauma, how they functioned independent of one another, how they functioned with one another, how their ability to develop peer relationships, how their ability to follow relationships with authority figures was impacted, whether or not those facts could present as 504 eligibility. Interestingly, the court said yes. The court said, considering the impact of that trauma, the plaintiffs, at a minimum, had alleged sufficient claims under 504 for the case continue. Let’s keep our eyes out for a decision. Let’s pay attention to where that case goes. That’s trending. That’s current.
Our takeaway, though as we continue on in our discussion of the eligibility criteria, let’s remember, we need current, present, objective data as to physical or mental impairment in order to check off the first box of the eligibility criteria. Assuming that we have that data, we then ask the question of whether and how that physical or mental impairment substantially limits one or more major life activity.
What are the major life activities? Well, the major life activities are the major life activities, like listening to me, like watching me, like being able to focus long enough to process the information that we’re discussing in this program. Those are all major life activities. We had a list of the biggies in the beginning, in the Rehabilitation Act, back in 1973, things like, caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, working and learning.
Folks, don’t fall in the hole of just learning. We should never be speaking of a 504 major life activity as only involving learning. (You may be thinking) but, we’re in a public school, all that matters is learning. We’re in a public school. Therefore, the only major life activity at play is whether or not the student is making progress, whether or not the student is learning in the classroom. That’s not entirely true because the law speaks to and the eligibility criteria speak to one or more major life activity, one or more. Learning is one, so is walking up the steps to get on a school bus, so is sitting on that school bus and developing appropriate peer relations so one could ride that bus safely to school, or climbing off that school bus, or being able to walk down the sidewalk to get into the school, or walk through the hallways, how one sees, one hears, one’s ability to attend and to focus, to comply with rules.
Federal courts have clarified that any activity one engages in routinely may constitute major life activity. Any function one performs routinely may constitute, may be considered to be, a major life activity.
So, where are we? Let’s remember the eligibility criteria for 504 is different than the eligibility criteria for IDEA. Let’s remember that there is a criteria. Let’s remember that that eligibility criteria has two prongs. It’s not just medical, it may also be so-called educational. Physical or mental impairment impact, physical or mental impairment that substantially limits one or more major life activity. We should not be finding eligibility or providing plans for students or employees for whom we do not have data that satisfies that eligibility criteria. But if we do have data that satisfies that eligibility criteria plugged in consistently, we ought to and need to develop plans that provide reasonable accommodation.
In other segments, we’re going to talk about reasonable accommodations. We’re going to talk about collecting data. We’re going to talk about how we take our understanding of a compliant criteria process and plug it into day-to-day delivery of 504 accommodation. Let’s remember, there’s an equation, there’s criteria. Physical or mental impairment, substantial limitation, major life activity.
Thank you for tuning in. Be careful out there. I’m John Comegno.
Episode 3: Unraveling the Key Concept of “Otherwise Qualified” and Its Implications
When it comes to compliance with Section 504 and the ADA, the term “otherwise qualified” has been historically challenging for education organizations to define and defend. What does it mean exactly?
In this video, update your knowledge of otherwise qualified and see why it’s such a hot topic in the landscape of litigation for education organizations.
Questions answered in this episode:
- What does “otherwise qualified” mean? Is it a pre-cursor to considering 504 eligibility?
- How can you know if a student is “otherwise qualified” to learn in the classroom?
- Does Section 504 require you to ignore some types of misconduct? What about bullying?
We recognize that students with certain physical or mental impairments are eligible for 504 protection. We recognize that oftentimes medical diagnosis guides that process. The parent that comes in with the prescription blank, the parent that requests testing accommodations, setting accommodations. We recognize the student who used to be eligible for IEP may be eligible for 504 today. We understand the definition of disability: physical or mental impairment substantially limiting a major life activity. What do we often lose sight of? What do we often overlook? Otherwise qualified. “No otherwise qualified individual with a disability.”
I’m John Comegno from the Comegno Law Group. In this segment, we’re going to talk about this concept of “otherwise qualified,” and you will see, you’ll hear relevant university and college cases. There are cases that come out of professional schools. There are, interestingly, cases that come out of dental schools, several. Cases that come out of medical school.
“Why, John, would we, in pre-K through 12, have interest in what’s going on in college and university?”
Let’s remember, college, university, private sector is Americans with Disabilities Act (ADA). As we’ve discussed in other segments, ADA takes the same language, uses the same language of Section 504. That means that the principles that the court is looking at are the precise, same principles you need to be considering preschool to 12th grade. The analysis that the court engages in, in “otherwise qualified,” is relevant to your employees. It’s relevant to your students. It’s relevant to your understanding of when one is otherwise qualified to receive accommodation.
Remember that language: “No otherwise qualified individual with a disability.” One must be otherwise qualified. Interestingly, when we look at the landscape of litigation over the last five years, give or take, and you’ll see the ages of these cases coming out of federal courts, this issue of otherwise qualified is a hot topic, which is why we talk about it. That’s why we have this segment for you.
The majority of those cases, although there are several that involve public-school students, pre-K to 12, the majority of these cases are in the college and university setting. But they’re relevant to you because the legal principles are the same. Terms not so hidden in 504’s disability discrimination prohibition. But terms that are often overlooked. And terms which might surprise you are fought about today. We see in many, many cases being litigated against our public schools, pre-K to 12, as well as in the higher education setting, college and university, and in the private sector employment setting, under ADA. We see disputes about whether or not individuals are otherwise qualified.
If an individual, if a person, a student or an employee, is not otherwise qualified, otherwise qualified to complete the essential tasks or duties of the position, to complete the curriculum, to do their jobs, do their work, to complete the program, then that individual, that person, that student, that employee is not eligible for 504 protection.
There is no dispute about whether that student is eligible. There’s no dispute, then, about the reasonableness of the accommodation that might be provided. There’s no dispute about whether or not the 504 Plan has been comprehensively and compliantly implemented.
We’re going to talk about a number of cases today. I know you’re excited about that. How is this issue trending? Where is it trending? What are the concepts courts are looking at? What are the issues that litigants are raising? When we talk about otherwise qualified? It’s a topic that’s hotter than you may think in our practice of 504 eligibility, in our practice of 504 implementation.
We need to keep in mind that persons have to be otherwise qualified for employee. That means they need to be able to complete the essential tasks and duties of their position before we even look at eligibility. We must be certain, in the employment process, that they can complete those functions before we have to look at eligibility.
That doesn’t mean that we can turn someone away on the basis of disability or the basis of diagnosis, because we may not. Let’s remember 504’s direction. 504’s direction is: thou shall not discriminate. However, in looking at objective, functional ability, one must be able to complete the essential tasks or duties of their position before we consider eligibility and accommodation. The same with students. Are they of the correct age? Are they properly residing? If it’s a public-school setting, if it’s college and university (setting), are they able to complete the curriculum? Do they meet your technical standards for admission? That’s what “otherwise qualified” means. Let’s remember that, that’s a precursor requirement to even looking at eligibility.
Let’s look at some cases and let’s consider some current cases today.
A case in the federal court in Massachusetts, involving Fay School. This is a student in a private boarding school, private-school setting. Student presented a diagnosis of attention deficit hyperactivity disorder, brought an action against the private school alleging disability discrimination in violation of ADA. And as we know, and as we discussed in some other segments, ADA, Title II applies to public school.
ADA’s disability discrimination prohibition is the same as 504. So even if you’re not in a private school setting, direction in these cases is relevant to you because the law is almost exactly the same.
That student, that student with attention deficit hyperactivity disorder (ADHD), alleged ADA disability discrimination violation with regard to a breach of contract arising out of that student’s withdrawal from the school for medical reasons in lieu of expulsion. On its face, perhaps the student asserts a valid claim. Climbing inside the facts of the case, the court looked to the student’s performance. The court look to the student’s disciplinary difficulties. The court concluded that the student was not otherwise qualified for protection under ADA for participation in the private boarding school’s day-student program because, as part of the requirements for that school, the school placed great emphasis on so-called honorable conduct, compliance with its disciplinary code, compliance with its expectation for everyday functioning.
It turned out that that student had over 120 disciplinary violations in less than two academic years. The student had cheated, had lied, it’s the language of the court, to his advisor. Major violations of the school’s code of conduct. Even while on final probation.
What does that mean? That means that the student was not otherwise qualified. We’re not even going to look at the ADHD. We’re not even going to look at whether or not there’s accommodation or the reasonableness of the accommodation because the student’s own performance indicated the student was not otherwise qualified to be at the school.
A case from the Third Circuit, United States Court of Appeals in 2008, Millington v. Temple University School of Dentistry. Plaintiff alleged eligibility for 504 and ADA protection on the basis of orthopedic, arthritic neurological impairments, hearing loss, irritable bowel syndrome, premenstrual dysphoric disorder, chronic migraine, chronic pain, neck sprain strain. So, we have multiple diagnoses. We have multiple difficulties. We have a student who I wouldn’t characterize necessarily as medically fragile but certainly presenting with physical and mental impairment.
Her allegations were that Temple University failed to provide reasonable accommodation in response to her request. Failed to provide appropriate extension of time to complete schoolwork and administer makeup exams and appropriate settings. Didn’t allow her to take leaves of absence.
She claimed that after certain actions, Temple dismissed her from the program of dental studies and that dismissal violated her rights under ADA and 504 because she should have been given leaves. She should’ve been given other opportunities to complete the program of studies. The court concluded that the student was not otherwise qualified. Regardless of those multiple, multiple, multiple diagnoses, her dismissal didn’t violate the ADA, didn’t violate the Rehabilitation Act because, again: performance. The student struggled academically from the inception of her studies, even before she had a physical manifestation in school, she slipped on some stairs. Before she requested accommodation.
It was fairly clear that she was not able to perform at the level expected. She was not otherwise qualified to complete the essential tasks or the curriculum. Her academic performance didn’t improve, even when the university granted various accommodation requests. The few suggestions that the university denied, the court concluded, would have fundamentally altered the nature of the school’s program and the expectation.
And let’s remember, and we’ll be speaking more specifically to this in another segment, let’s remember that 504’s direction of prohibiting discrimination does not require you to change your curricular expectations. It doesn’t require you to change the expectations that you have for an employee’s duties. What it requires is that you not discriminate as to performance, as to participation, by the provision of accommodation.
Accommodation is an adjustment. Accommodations adjust duties. They adjust how we complete duties. They adjust how one learns, they adjust how one participates in instruction, shows mastery of information and testing. Accommodations don’t change.
Here, the court’s concluding that the suggestions, the requested accommodations, weren’t accommodations, that they actually were modification requests. You are not expected to modify your standards or your expectations for students. That’s IDEA. That’s IEP, isn’t it? That’s specially designing instruction based on need. We’re not expected to do that for students under 504. We’re not expected to do that for employees.
Again, the court, here, looked at struggling academic performance over a period of years. Even when accommodations had been provided, the student’s academic performance didn’t improve. The university, the court notes, went so far as to even provide a dental assistant in clinical studies. But yet, the plaintiff still wasn’t able to complete the duties, wasn’t able to complete the curriculum. Therefore, not otherwise qualified.
Towson University. Class vs. Towson, in a case coming out of the Fourth Circuit in 2015 raises the interesting question of whether or not, under 504, we should be changing our expectations for medical clearance. Change sounds like modification. It doesn’t sound like accommodation. I bet you know where the court goes in this case.
University football player collapsed on a practice field from heat stroke with liver failure. He brought an action against the university alleging violation of rights under ADA because the university had required a medical clearance to put that student back on the field. I’m sure you can understand why. We’ve got a student who experienced a significant medical condition. We’ve got a concern about that student’s safety. We want to make sure that that student’s going to be safe. We don’t want to put that student back on the field, where the student may experience another medical crisis, collapse again, suffer from even more significant difficulty. Obviously, there would be exposure there. The simple request is for medical clearance.
Very creatively, the football player alleges, on account of diagnosis, on account of medical status, that it would be exclusion, it would be denial of benefit for the university to request the medical clearance.
The court said no. The requirement of medical clearance, physical clearance, was an essential eligibility requirement in order to determine whether one was otherwise qualified.
Think about it. Is the student otherwise qualified to learn in the classroom? Is the employee otherwise qualified to complete the essential tasks of the employment position? Is the athlete otherwise qualified to physically participate in the sport? An essential inquiry there is whether or not the individual is medically cleared. So the court dismissed the claim. The request, an objective request looking for data for medical clearance, in that circumstance was not discriminatory.
Halpern vs. Wake Forest University Health Services. A case coming out of the Fourth Circuit, United States Court of Appeals in 2012. Again in the higher ed setting here, looking at medical school provision of accommodation.
A medical school student is diagnosed with attention deficit disorder, anxiety disorder, multiple mental impairments that might present one for eligibility under 504. Student was dismissed for unprofessional behavior. The student, very importantly, did not disclose the diagnosis or make a combination request until after the dismissal. This is not a case where a student applies and is accepted and then, in a transparent way, in a proactive way, goes to the school and makes requests for accommodation and presents the diagnosis. Here we have an individual who engaged in a pattern of factual misconduct, is dismissed, and then said, “Wait a minute, you’ve discriminated against me, you’re excluding me on account of my ADD, on account of my anxiety. On account of the manifestation of my mental health impairment.”
Student brought suit, former student then brought suit, alleging dismissal was in violation of ADA and the Rehabilitation Act. The court looked at the facts.
The court concluded that the student was abusive with staff, misrepresented attendance information, missed class without permission, sought to miss and reschedule exams. The court concluded that with or without accommodation, the student was not otherwise qualified. Professionalism in the context of professional school, medical school, was an essential requirement of the program. The student could not meet that requirement regardless of accommodation.
And the court provides some interesting, instructive language, which we should consider: “A school, if informed that a student has a disability with behavioral manifestations, may be obligated to make accommodation to help the student avoid engaging in misconduct. But the law does not require you, the school, to ignore misconduct that has occurred because the student subsequently asserts it was the result of a disability.” Essentially, the Rehabilitation Act and the ADA don’t obligate a school to permit a student to continue in an educational program with the hope – the hope – that, at some unknown time in the future, he might be able to satisfy essential requirements. We must be able to complete the essential requirements first.
A case out of the Fifth Circuit 2015, involving the University of Texas Health Science Center, looking at otherwise qualified, again in the context of dental school participation. A dental student commenced an action under the Rehabilitation Act and ADA, alleging failure to provide reasonable accommodation. The court dismissed the claim.
What are the facts of the case?
The student disclosed to the university that he suffered from ADD, attention deficit disorder. Faculty members had awareness that he had some limitations, but the court concluded that the faculty members’ limited awareness of the impact was not sufficient to give rise to obligations under the ADA or the Rehabilitation Act. Since the student didn’t provide the university with any specific accommodation requests or information beyond a simple diagnosis.
As we’ve discussed in other segments, looking at the criteria, looking at collecting real data, looking at plan implementation, diagnosis alone does not beget eligibility. In that case, presentation of the diagnosis itself was insufficient, was not enough.
The court concluded that, without additional information, the university did not have obligation to find eligibility and provide accommodation.
A case involving Midwestern University, 2016. Another professional school case. Plaintiff was a former medical student at Midwestern University. She became depressed, develop generalized anxiety disorder. Plaintiff alleged that she requested reasonable accommodation in light of the disabilities, but the defendant denied the request.
The court concluded that that individual, again, despite diagnosis, was not otherwise qualified because she was failing multiple classes other than the one in which she was requesting accommodations. She was not otherwise qualified to complete the curriculum. She was not otherwise qualified to satisfy program obligations and requirements, thus not protected by 504.
A difficult case coming out of the eastern district of Arkansas in 2014, involving a student, involving a high school student. The Estate of Barnwell — looks at the manifestation of mental health difficulty and the impact of bullying in a high-school setting and asks us, what responsibilities we have, what responsibilities you have, considering that the difficult reality today of harassment, intimidation and bullying. And whether or not, if we choose not to, if we elect not to, if we’re not compliant with state requirements for Harassment, Intimidation & Bullying (HIB), if we’re not progressive in implementing our own HIB rules, individuals are bullied on account of disability ― whether or not we may be exposed, you may be exposed, under 504 and ADA.
Here we have a high-school student who had Asperger’s syndrome and, unfortunately, sadly, took his own life, committed suicide, following alleged bullying. The family, the estate, brought claims against the school district alleging a number of things: alleging civil rights violations, alleging student-on-student sexual harassment. But, beyond that, and for our purposes here today, alleged discrimination under 504, because we have a disability, which might have been the subject, might’ve been a distinguishing characteristic which led to the bullying, which was part of the bullying, which then led to the student committing suicide.
What did the court conclude? The court concluded that the parents had alleged sufficient claims under certain civil rights laws including Title IX as well as the Rehabilitation Act, due to the school’s quote “deliberate indifference” to student on student disability-based harassment.
What’s the take home? The take home for us, in that case, the take home for us in most of these cases is that we need to, and I come back to three principal best practice points, whether it’s IEP, whether it’s 504: we need to be aware of individual need, we need to be aware of compliant process, we need to be aware of progress. Need, process, progress.
Here, otherwise qualified gets to need. The impact of that difficulty. Implementing our eligibility criteria. Is one able to complete our curriculum, to satisfy our curriculum? To honor our code of conduct? Is one, in the university medical school setting, able to complete that rigorous curriculum? In employment, is one able to complete their employment duties? Is one, in second, third, fourth, fifth grade, able to complete the tasks? Is one resident in our district and of the correct age? If the answer to any of those questions is no, that individual is not protected by 504. Remember that, and remember, when we have responsibility, when we do not, before hopefully avoiding litigation, but also within litigation.
Let’s remember that otherwise qualified means something. It’s a substantive element to the criteria in determining for whom we consider accommodation and who we do not. Again, I’m John Comegno from the Comegno Law Group. Thank you. Be careful out there.
Episode 4: Are We Just Talking About Medical Diagnosis? Using Data in Section 504 Decision-Making
Episode 5: When Are 504 Plans for Students Exiting Special Education Appropriate?
Episode 6: What About Behaviors? Do Our 504 Students Receive “Extra” Due Process?
Episode 7: Best Practices in Drafting Section 504 Plans: The Need for Consistency
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