Assignment 10-Section 504-Accommodation Plans-Section 3 SPED 433-Lindsey Sharp

What is the Section 504 Accommodation Plan?

The 504 plan refers to Section 504 of the Rehabilitation Act and the Americans with Disabilities Act. This act states that no one with a disability can be excluded from participating in federally funded activities or programs.

A 504 plan includes modifications and accommodations that the students will need in order for them to have the opportunity to perform at the same level as their peers (these could include wheelchair ramps, blood sugar monitoring, a tape recorder for taking notes, etc.). Students that may not qualify for an IEP could qualify for a 504 plan.

Section 504 is a civil rights law that prohibits discrimination against individuals with disabilities. It also ensures that children with disabilities, have equal access to an education.

Unlike the IDEA, Section 504 does not require a public school to provide an IEP and fewer procedural safeguards are available to the child and the child's parents.

*PLEASE NOTE* Other sections of this assignment will go into greater detail about the 504 Plan and how it relates to the IDEA and the IEP. This section (section 3 of assignment 10) deals with court cases and legal ramifications.

What is The Rehabilitation Act of 1973?

The Rehabilitation Act of 1973, replaced the Vocational Rehabilitation Act. This replacement extended and revised grants to states for vocational rehabilitation services. It gives more opportunity to people with disabilities and there is more funding now.

It added an emphasis on services to those with "the most severe handicaps, to expand special federal responsibilities and research and training programs with respect to handicapped individuals, to establish special responsibilities in the secretary of health, education, and welfare for coordination of all programs with respect to handicapped individuals within the department of health, education, and welfare, and for other purposes".

The purpose of this act is to provide services and authorize programs. Especially programs related to the development and implementation of plans for the current and future needs of a children (and other individuals) with disabilities.

*PLEASE NOTE* This purpose (stated above) is only one of many that brought equality and justice to individuals with disabilities.

Legal Ramifications of Section 504

There are many legal ramifications of the Section 504. They can depend on who is violating the law and can affect the schools on a district level as well as in the classroom. They can also affect the family and especially the student.

In section 3 of this assignment, we will take a closer look at a few court cases that relate to the Section 504 Plan.

W.B. v. Matula (1995)

In this case, the school refused to evaluate, classify, and provide appropriate services to a child with a disability.

This case is about a young boy E.J. Before he started first grade, his mother went to the public school to share her concerns about her son. The school did not offer any help. She continued to voice her concerns and they still refused to evaluate E.J.

Finally, she took matters into her own hands and had him evaluated (privately and at her own expense). The psychologist found that he had several serious neurological problems. The school refused to reimburse his mother. They refused to provide him with services. She requested a due process hearing.

The court found that she was able to receive reimbursement under Section 504. The school refused to evaluate, classify, and provide necessary educational services. He had been diagnosed as having ADHD and was entitled to special education and related services (under IDEA). This appeared, to the court, to be a violation of Section 504 because, there seemed to be discrimination.

What is disturbing is that the school said that E.J.'s mother was overly persistent and tried to obtain services that he was not entitled to. The court sides with E.J.'s mother.

The school still has a "child find" duty which they were not adhering to.

This case also brought to light, the importance of deadlines. In part because of this case, once the child has been suspected of having a qualifying disability, they must be identified and evaluated in a reasonable amount of time.

It was concluded that the school officials failed to uphold their "child find" duty which makes the school in violation.

Polera v. Bd Ed. Newburgh City Sch. Dist (2002)

This case is about a girl who is visually impaired. She says that the public school failed to provide her with a FAPE (specifically: study materials, compensation for tutoring, and recognition of academic achievements).

The school said that they provided her mother with notices that would enable her child to be successful in school. Her mother never took any complaints to the school. It was only after the student graduated from high school that she (the student) brought a complaint to the district court.

The complaint filed falls under Section 504 (the equal protection and due process clause of the 14th Amendment).

The court found that the school had intentionally discriminated against Polera (and thus were in violation of Section 504). She was awarded an amount of money that would compensate damages to her emotional distress (she was out of school at the time of the hearing so, I wonder how much education and socialization [FAPE] she did not receive because the school failed her).

The school appealed stating that Polera did not exhaust all her efforts, through the school, before she filed a lawsuit. Is it the students responsibility to exhaust all efforts? Isn't it the school's responsibility as well as the parents?

There is a provision under IDEA that requires all efforts to be exhausted before they are taken to court. Now the court is to decided if this "exhaustion of efforts" applies to Section 504. She did in fact have an IEP however, it was inadequate. She waited too long to file a complaint and did not follow the guidelines.

The court found that Polera did not exhaust all her efforts prior to going to court.

In considering the applicability of the IDEA exhaustion requirement, the court held "that in the unique circumstances of this case in which the injured child has already graduated from the special education school, his injuries are wholly in the past, and therefore money damages are the only remedy that can make him whole-proceeding through the state's administrative process would be futile and is not required before the plaintiff can file suit in federal court."

In other words: Because she waited too long to file a complaint, and she has now graduated, there is no way to make this right except monetarily. So...after the appeal by the school, she did not win.

Conclusion: Polera was required to exhaust all efforts before bringing the school to court. She admittedly failed to do so. The case was dismissed.

My Thoughts

I am not sure why she waited so long to file a complaint. Did she not know or understand the law? If this is the case, it is the school's responsibility to make sure her parents understand. She must have been educated appropriately if she was able to graduate?

I can see why the court ruled in favor of the school. If there was an issue with her IEP, it needed to be addressed sooner. This is why we have the procedural safeguards and timelines that we do (under IDEA). There are certainly violations under IDEA that could have occurred in this case, if there had been a complaint about her IEP. If the school was reevaluating her, like they are supposed to, there should have been plenty of opportunities to remedy whatever was not working.

There was no evidence of discrimination thus, no violation of Section 504. If she truly was not happy with the IEP and was not receiving services she was entitled to, and a complaint had been filed (prior to her graduating), there could have been a case under Section 504.

Burriola v. Greater Toledo YMCA

This case is about Jordan, an eight year old child with autism. He attends the YMCA after school and when there are breaks at the public school. This case came to court through a counselor at the YMCA (Burriola) who was trying really hard to help Jordan. Jordan had been terminated from the YMCA.

My first question is, is it even allowed to terminate a child from daycare?

After reading through this case, it seems like, one staff member was willing to do whatever was necessary to keep Jordan in the YMCA. In fact, it would be considered discrimination if she did not do that.

She offered free training for the staff (training about how to work with children with autism). There were a few things she suggested to be implemented (a written schedule and letting Jordan know if they would be veering off the schedule-warning him first). The training was not mandatory and only two counselors showed up. Then those two quit working at the YMCA (so now there is nobody qualified and knowledgeable to help this child).

It seems like the director at the YMCA, just wanted to get rid of Jordan. He was not willing to implement any of the supports and he is the one who sent a letter stating that Jordan was to be terminated immediately.

This case is clearly one that involves discrimination against a child with a disability (in my opinion-the YMCA could not handle the behavior issues associated with Jordan and were not very willing to try). The statute states that discrimination includes, "a failure to make reasonable accommodations in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.” 42 U. S. C. § 12182 (b)( 2)( A)( ii).

I do not think that training counselors and implementing a few changes would be considered to "fundamentally alter the nature".

The court concluded that, if the counselors had tried to accommodate Jordan, he would not have been terminated.

The YMCA denied the allegations by saying that modifying the program (for Jordan), would have caused them to alter their program and this would cause undue burden. They also said that Jordan was a direct threat to the other children in the program (because of his disability, he had a tendency to hit and bite his peers as well as counselors, this is why training was so important and nobody wanted to be trained).

The court also found that, other children at the YMCA were causing physical harm to their peers and they were not terminated (another reason this case is considered one of discrimination and a violation of Section 504). Thus the YMCA was discriminating against Jordan.

The results of this case include, Jordan going back to the YMCA and the staff is mandated to get the training they need to accommodate him (and there is a deadline as to when this training will be done by). All staff that will be involved with Jordan, will be trained. The modifications proposed will be implemented (with a deadline).

My Thoughts

I thought it was completely out of line that Jordan was terminated from the YMCA. Why would anyone ever think this is OK? I feel bad for Jordan and his family. Jordan just needs the people who are working with him to understand him. That's all. I am glad that one lady did not give up on him and she took the YMCA to court on his behalf.

Jarron Draper v. Atlanta Public School District (2008)

J.D. was 21 years old at the time of this case. The due process hearing happened at this age and he was in the 11th grade.

It all began when he was in 4th grade. His mother gave consent for a complete and comprehensive evaluation. It was determined (by the school psychologist) that he had an I.Q. of 63. He was able to move on to 5th grade. He was placed in a very restrictive environment and given some services.

When he was in 9th grade, his mother enrolled him in a specialized school because he was not improving (and had not been). This was at her own expense.

His family did not agree with the school evaluation. Another evaluation was done, by a different school psychologist, and it was discovered that J.D. had a specific learning disability (this evaluation occurred YEARS after the first one).

The IEP team met and the parents requested that he have private school one-on-one tutoring to help "close the achievement gap". Action was not taken. The school decided to provide the Lexia reading program. They waited a long time to implement this program.

In the meantime, his family filed a complaint. The school was not providing J.D. with a FAPE. They did not see any progress with the Lexia program, however the school kept using that program.

Again, his family had him evaluated, at their expense. This psychologist determined the specific learning disability was dyslexia (and this diagnosis came when he was in 10th grade-more than 6 years after his first evaluation). How did this diagnosis slip through the cracks? There are many programs available to help children with dyslexia. Early intervention could have prevented this child YEARS of struggling.

Despite continued complaints about the Lexia program, the school still used this. He was not making any progress.

What bothers me is that he showed signs of dyslexia as early as third grade and instead he was labeled as mentally retarded. It also bothers me that his parents made many complaints and the school did not do anything.

The school said that his parents did not agree with the IEP and insisted on additional "private remediation services in reading". They have a right to disagree with the IEP. They have a right to disagree with the school. The services that were provided to Jordan (the private remediation services), actually helped him.

The court found that, the school did not provide J.D. with a FAPE (under IDEA). They also thought it was out of line for the school to insist on a reading program that was not helping him (this program resulted in "minimal educational benefit"-which is NOT what students are entitled to).

The court found that J.D. was entitled to "compensatory services" and that the public school should NOT provide those services. The school had misdiagnosed him, refused to reevaluate him, and insisted on continuing to use a course of instruction (Lexia) that was not benefiting him.

This court ruled that, J.D. could choose to stay in the public school and they would have to provide the necessary services or he could be placed in a private school. He would also be reimbursed for all costs pertaining to this court case (private school, legal fees).

Of course, the school appealed. They said that the case violated the statute of limitations (the limitations for an IDEA claim is two years). There was evidence that proved the school was in violation however, it did occur many years before this case was brought to trial.

The conclusion: He was granted partial reimbursement.

My Thoughts

It is sad that so many years went by before anything was ever done. It is frustrating that this child was misdiagnosed. He missed out on a lot of educational opportunities because of this negligence. The school failed this child.

Mark H. et al v. Patricia Hamamoto and Hawaii Department of Education (2010)

This case involves two siblings with autism. Their parents took the school to court because the school failed to provide their children with a FAPE.

"The parents alleged that the department of education failed to provide the children with appropriate services during their formative years. The “window of opportunity” to learn to speak and interact with people closed…… because of the department’s “deliberate indifference.”

Their complaint involved the school failing to provide accommodations (specifically autism-specific education services) and they failed to design their IEP's to meet their children's needs.

Their parents considered these failures to be "deliberate indifference" which violated Section 504.

**PLEASE NOTE** Parents are allowed to seek reimbursement under Section 504 when children are "damaged by deliberate indifference".

**IMPORTANT TO NOTE** "Deliberate indifference is the conscious or reckless disregard of the consequences of one's acts or omissions. It entails something more than negligence, but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result."

In other words, the parents considered the school to be more than negligent in the education of their children. This is a serious term. It is an important term. Educators have the livelihood of children and our future generation in their hands. We can not afford to be negligent let alone "reckless...something more than negligent".

Autism, in their cases, causes them to have significant barriers to their learning. They are nonverbal and have limited abilities when interacting with others.

The school is responsible for ensuring that their students receive appropriate special education services that will enhance positive learning outcomes.

When one of the girls was three, she was found to be eligible for special education services and it was suggested that autism specific services be implemented right away. They were not implemented. This same situation occurred with the other daughter (who is a year younger).

The school knew these children needed autism specific accommodations early on (before kindergarten) and did not provide these services nor, in later years, did their IEP's reflect the autism specific services. This is why the complaint involves deliberate indifference and is a form of discrimination (and discrimination is a violation under Section 504).

Had they been given these accommodations early on, their academic and social growth and progression would have been much better. Research has shown that, early intervention and autism specific services will increase the chances of development in many areas of the child's life.

It seems like the principal refused to implement these services. Their pre-school teachers thought these services should have been implemented. They were actually placed in a secluded room with a person who did "very little". This sounds like segregation and discrimination. We don't put children with disabilities in secluded areas anymore.

When this case went to court, the school tried to say that the family could not establish a violation of Section 504 because they could not produce any evidence that the children were, "intentionally discriminated against solely by reason of their disability.”

**PLEASE REMEMBER** "The Rehabilitation Act § 504 forbids organizations that receive federal funding, including public schools, from discriminating against people with disabilities. 29 U.S.C."

This case is considered to be one that involves deliberate indifference because, the school knew these children needed specific special education services and did not provide them nor make any effort to.

The school said they were "merely negligent, not deliberately indifferent". HONESTLY??? As educators "merely negligent" is NOT OK. Being "merely negligent" can have detrimental affects to the child. However, maybe, in some cases, under the law, being merely negligent is better than being deliberately indifferent. No matter how you spell it, it still looks like the school did not have the best interest of the students in mind.

Fortunately, this argument failed.

The conclusion: Originally the case was to be thrown out (there was not enough significant evidence) however, it ended in favor of the children and their family. The school would have to pay.

The sad fact is, no amount of money can buy time lost. These girls could have had a significantly different education if services would have been provided sooner (and the school had ample time to provide them).

My Thoughts

The school failed these girls. It is likely that the girls would have made significantly more progress had they received the appropriate services sooner. This case really does amount to a tragic loss of "developmental opportunity" for the students. Because the school did not provide the services to these students that they needed, "irreparable harm" was caused to them.

Legal Ramifications from the District Perspective

If schools go to court, it can leave a bad taste in the mouth of the community.

Districts could have a hard time finding teachers that want to work in their district.

Teachers and other administrators could lose their jobs.

Time and money is wasted.

Legal Ramifications as they Apply to the Classroom

Teachers can lose their jobs.

It can cause turmoil and frustration in the classroom.

Parents can become unhappy.

Valuable time is wasted.

Money is wasted.

Children could miss out on important classroom instruction.

It could be detrimental to students.

Can cause discourse.

Can cause the classroom environment to not feel safe anymore.

Reflection

Section 504 Plan in My Future Classroom

Schools are federally funded and (partly) because of the Rehabilitation Act, they receive more federal funding now than ever. There is no excuse to not do whatever we can to accommodate children. It is their right and our responsibility as teachers.

As a future teacher, I will be aware of my students. If I see that they are struggling, it is my job to understand why. There are tings I can do to differentiate my instruction. If this does not work, I know and understand the law (or know where to find answers). With this knowledge and understanding, I can work together with parents and other members of my school to ensure that no child slips through the cracks. I believe in the purpose of IDEA. All children can learn. All children have a right to a FAPE.

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