Free Appropriate Public Education Under Section 504 (Pennsylvania) - PEN Webinar

(female speaker) Good morning, this is Jackie
from the Parent Education Network. If you can hear me, please raise
your hand on your computer, just a show of hands.
Thank you, thank you, thank you, super!
Okay, today's webinar is going to be about FAPE
under Section 504, and our presenter today
is Charles Jelley. He is an attorney, who
has dedicated his practice to children's issues
for over 30 years. His focus has been on school law,
juvenile justice, children and youth services, disability law,
and mental health/mental retardation matters.
So he will be discussing this important topic today.
I do believe Mr. Jelley will just kind of give
some brief information to you about questions.
I also want to let you know that I did e-mail everyone
who has registered the actual handout that
he will be using today. So have you--if you
have not checked your e-mail today and printed that out, you may do
so at any time. And I will go ahead
and follow up with any other questions as you go.
There is a questions box that you can ask questions,
and I can ask Attorney Jelley those questions as they
come along to you. So I will go ahead and turn
this over to you, Mr. Jelley.
(Mr. Jelley) Thank you.
[Mr. Jelley pauses]
Good morning. The purpose of this session is
to try to acquaint everyone with the differences between
a Free and Appropriate Public Education under Section 504 and regulat--
the statute, the regulation, Pennsylvania's version
of those regulations and a Free and Appropriate Public Education
under the IDEA: the special education regulation.
There are fundamental differences, and the first one--Jackie
if we can come down and start with the table.
If we can go to the second page. The--what I've done is
just lay out the regulations for you. Column one, you have
the Section 504 regulations. Column two--the first column
is the federal regulations, the second column
is the state regulations. Columns one and two relate
to Section 504 and discrimination. Column three is the IDEA regulation.
Basic difference is kids under column one and column two
get a service agreement; kids in need of special education
under column three get something called an Individualized Education Program.
We're going to focus on columns one and two today
and compare and contrast it against what happens in column three.
As a general overview, kids in--who are identified
under Chapter 15 and Section 504--have
basically all of the same rights as kids under the IDEA.
They get it a little differently through the service agreement,
and if you're looking at column two, I am talking about 15.7,
versus an [inaudible], for kids receiving special education.
The initial difference--let me start with the things that are
the same and then we'll go to the things that are different.
Chapter 15.1, the purpose section of the regulation, tells us
that this is the requirement that Pennsylvania places
on school districts to comply with all of the requirements
in column one, relating to non-discrimination
on the basis of handicap, relating to sub-part (d),
or its pre-school, elementary school and then
there's actually (on 504) there's a subpart (e)
for post-secondary education. That's the fundamental difference
between 504 and the IDEA. People who go to school,
and I'm talking about column one, regulation 104.41, 104.42,
43 and 44. People with disabilities that
go to college can get some type of accommodations in college.
You would get that under Section 504, you
would not get that under the IDEA. Your school district's responsibility
to the child under the IDEA ends when the child
graduates or turns 21. So there are some similarities.
School districts have to serve kids under both chapters
and then when the child goes forward and is now
a young adult, colleges and universities could be required
to make some type of changes for the person to go to school.
The purpose section of the IDEA regulations basically--
and I'm in column--excuse me-- purpose section
of the Section 504 regulations; I'm in column one
and I'm talking about 104.1, 2 and 3.
The Section 504 says no public entity
can discriminate in the provision of aid,
benefits or services, and it precludes discrimination
based on a person's disability. The w--definition section
in 504 and 104.3--there are more definitions
there than there are in Pennsylvania's 15.2,
but what it basically 15.2 says is a parent is a birth
or an adopted parent, a guardian acting as a parent of the student.
Chapter 15 identifies kids as a protected handicap student.
To be a protected handicap student, the child must be of school age
from which public education is offered in the district.
The child has to have a physical or mental disability, which
substantially limits or prohibits participation
in or access to an aspect of the student's school program.
So, that definition is different than the IDEA definition,
because in the IDEA, you basically have a group
of recognized exceptionalities, for example, children
with intellectual impairments, children with
specific learning disabilities, children with autism,
kids under the other health impairment rubric,
which is a broad category of kids with seizure disorders,
attention-deficit disorder, anemia or other health conditions.
There you have a condition, and then that condition
adversely affects your education, and I'm talking
about column 3, the IDEA. In columns one and two,
you have to have a physical or a mental disability
which limits or prohibits participation in or access
to an aspect of the student's school program.
So, for example, I could be a child
with a seizure disorder; I would qua--possibly qualify
under the IDEA as a child with an other health impairment,
or I could qualify as a kid under Chapter 15, Section 504,
as a protected handicapped student. The difference may be
that if I'm having difficulty in advancing in my education,
I may be an IDEA kid. If I'm getting passing grades,
moving forward and don't require special education, but I need
to have someone to make sure that I can access my medications
during the day, I can go see the school nurse during the day.
I'm probably going to be sliding over
into Chapter 15 as a protected handicap student.
(Mr. Jelley pauses)
Going forward, under 15.4, school districts have to provide
parents of enrolled students an annual notice that they
do not discriminate against protected handicapped students,
and they have to tell parents what their--their responsibilities
are under this Chapter. The notice
must be reasonably expected to reach the parents
of the students enrolled in the district school dist--
in the school district, such as school calendars or brochures.
So, you'll find postings on district websites that say
we do not discriminate and they'll be a gen--
a general posting under all categories, for example,
race, religion, sex, and then specifically
for protected handicapped students. The notice has to be expected
to reach the family. The notice
should be prominently displayed and the notice should tell you
how you get in touch with people if there is a difficulty.
The types of discrimination that are prohibited
would be if you deny a qualified handicapped person
the opportunity to participate in or benefit
from the aid benefit of service. And I'm talking
about the definition in column one, 104.3,
and that's all so you-- that definition would apply
to everything in column two. Another type of discrimination
would be afford a qualified handicapped person
an opportunity to benefit from a service that
is not equal to that afforded to others.
So for example, if the child was permitted to go to school,
but got less of a school day, that would be discrimination.
If the child was permitted to ride the school bus,
but was not given accessible transportation,
such as a lift, that could be discrimination
because the district refuses. Another example could be
a child who is in a wheelchair and needs physical accommodations
in the buildings, such as lifts, stairs,
lowered water fountains. You'd be looking at that
as denied access to the program in benefit.
If the child's in a wheelchair
and is in a home economics class, but they can't reach
the knobs, they can't stir, they can't run
any of the utensils, they can't run the sewing machine
because there aren't any changes, such as a hand--
a hand button versus a foot button, those would be
types of discrimination. Discrimination can be provide
different or separate aids or benefit to the person,
unless it's absolutely necessary. So an example would be is,
there's a home ec. class just for kids with disabilities,
rather than having kids with disabilities
or protected handicapped kids in the class with everybody else.
So you have broad coverage for discrimination
across all of the program. When you get down into 15.5,
school district initiated evaluation and provision of services.
A school district shall send a written notice
to the student's parents if the district believes
the student meets one or more of the following:
should be identified as a protected handicap student
(they'll send you notice), should no longer be identified
or requires a change in or modification
of the student's current service agreement.
The school district's notice to the parents must be given
in the native language or mode of communication,
and it has to tell the parent the following information:
the district believes the student is--is or no longer is eligible
as a protected handicap student; they have to tell you the basis
of their dis--their belief; they have to tell you what
the proposed change or the modification is;
they have to tell the parents they have the right
to inspect and review all relevant school records;
they have to tell the parents they have the right to meet
with appropriate school officials to discuss the issues
related to evaluating or accommodating the student;
they have to identify the specific related aids,
services or accommodations the school district is proposing
(and this comes in with the parent notice);
they have to advise the parents of requirements if the parents
agree to the identification, and they must execute
a service agreement before the district will provide
the proposed related aid, services or accommodation.
The district shall not modify or terminate
a current service agreement without the parents' written consent.
The district must provide the family with procedural safeguards,
and we'll get into that later about how detailed
or not-detailed they must be. If the district needs
additional information before it can make a specific recommendation
regarding the aid services, the district may ask
the parents to provide additional medical records,
which the parents have, and grant access...
and permission to evaluate the student.
The school district initiating the request shall
speci--specifically identify the procedures and types of tests
which it proposes to use, and inform the parent
they have the right to give or withhold written consent.
That's an awful lot, but basically it's
just like the IDEA. You can go
or the district can go and identif--
say, "We believe the child is eligible."
There will be a review of the records
and additional testing if necessary.
And this is part of the district's-- what's called
their "child find" duty. And child find under 504
is bigger than child find under the IDEA.
The--when I say bigger, the IDEA talks about providing the notice
and doing child find for all kids who are enrolled
in the district. The Section 504 regulations,
and specifically, 104.31, 104.32, are broader.
104.31 tells us that these regulations apply
to pre-school, elementary, secondary and adult classes
or activities that received federal financial assistance,
and to recipients that operate or receive federal financial assistance.
104.32 tells us that a recipient that operates a public
or secondary education program shall annually undertake to eval--
identify and locate every qualified person,
handicapped person, residing in the recipient's jurisdiction,
who is not receiving a public education,
and then they have to take appropriate steps to notify
handicapped persons and their parents or guardians
of the recipient's duty under the subpart.
Excuse me. (Mr. Jelley coughs)
I'm reading this from the regulation, so I apologize
if I'm offending anybody by the language, but the han--
the word "handicapped person," it's the language
in the regulation; it's not my nomenclature.
And what I'm trying to emphasize here is under 104.32 (a),
they have to identify and locate every qualified person
residing in the recipient's jurisdiction who is not receiving
a public education. So under 504, the child find duty
is a little bit broader, and it's broader than what's
under the Chapter 15, 'cause Chapter 15 talks
about kids who are enrolled. So, the actual regulation that--
the federal regulation tells the district they have
to look for kids in a variety of places.
If there are questions, I'll take them as we go.
You can just send them into Jackie and she'll pass them onto me.
What we're trying to do in this webinar is just focus
on those kids who are 504-only eligible,
as opposed to kids who are IEP eligible.
All kids with IEPs are covered under 504.
I'll say that again. All kids with IEPs
are covered under 504. The same is not true
going the other way. All kids with service agreements
may not be qualify for IEPs. That's why we have an IEP
if you need specially designed instruction,
or you have a service agreement. So, the coverage of 504,
it picks up kids who are not picked up in the IDEA.
The fundamental difference in terms of qualifying
for eligibility is the-- an impairment under 504
or the Americans with Disabilities Act has
to substantially limit a major life activity.
And major life activities include caring for yourself,
performing manual tasks, seeing, hearing, eating, sleeping,
walking, standing, lifting, bending, speaking, breathing,
learning, reading, concentrating, thinking, communicating and working.
A lot different than under column three, that you have
a condition that adversely affects your education.
You could have a respiratory problem that limits
your ability to breathe, that doesn't necessarily limit
your education, but you just can't breathe.
So, a kid with asthma who needs to have his inhaler in school
would be covered. A kid with asthma who needs
to be in a classroom that has an air conditioner so the air
is somewhat clean would be covered under 504.
They don't necessarily have to get bad grades
or not progress academically, you just have
to have a condition that substantially limits that
major life function. You know, the learning, reading,
concentrating, thinking and communicating can cover
a lot of kids: kids with anemia, kids who are chronically ill
and miss school, kids with a seizure disorder,
that have a difficulty in thinking and concentrating.
Kids with mental health issues in the community system, that
are taking medications and have an active diagnosis, may have
issues with thinking, concentrating, communicating, so your--
the numbers of kids are potentially greater.
That said, the condition has to substantially limit
a major life...function. The other thing with the definition
under 504 in terms of eligibility is a kid could have asthma,
the asthma could be in remission, and because it's in remission,
he can--he or she could still be in need of the aids or benefits,
so they can access the public education.
So, eligibility is potentially broader. The categories that are subject
to evaluation are greater than just paper-and-pencil psychological tests.
Major life activities are not limited to respiratory,
circular, neurological, so there are a variety of factors
that need to be looked at. And at times if you
are just doing a paper-and-pencil evaluation,
you could skip over and miss a group of kids who
would otherwise be entitled to Free Appropriate
Public Education services under a service agreement.
Another important function-- or another important distinction
is a child with a condition that takes a medication
for the condition cannot be used as a factor
to exclude the child from eligibility.
So, if I am a kid with asthma, and I'm taking
my asthma control medications and I have my inhaler
and I'm using my Albuterol, and I'm not having
episodes in school, I am still--that can't be,
that being the medication, can't be a reason
to say I'm not entitled. If I'm a kid
with a seizure disorder and I'm taking my medication,
and I'm not having active seizures during the day
that people can notice, I'm still potentially eligible.
And this can come up where the child's wants to--
the child's class is going on a field trip; the child
should be able to take the medication;
the medication is listed in the service agreement,
but yet there is a question about whether the nurse
should go on the field trip. If it's in the service agreement
that the child is supposed to get the medication
from the nurse, the nurse needs to be provided access
to the field trip, so the child can go.
You can't come to the parent and say, "Well we're going
"on a field trip. If you want the child to go,
you have to take the day
off of work, and you take the child, because we're not going to."
That would be denial of access to the aids,
benefits and services. We'll give it to you as long
as we're in our building, but we won't give it to you
if we take the child on a trip. So, eligibility is broader
and it covers in the district and activities that the child
is engaged in outside of the district.
I've been talking now for about 20, 25 minutes.
I'd like to stop and take some questions on the issue of purpose,
child find, identification. Do we have any questions, Jackie?
(Mr. Jelley pauses)
(Jackie) Not as of--ooh, yes,
one just came in:
"How is 'adversely affects education' defined in IEP,
especially when comparing with 504.
(Mr. Jelley) The IDEA regulations don't provide us
with a specific definition of when
the child is "adversely affected." What you tend to look at
are indicators of difficulty. You're not progressing
in the curriculum, your communication skills aren't
age-appropriate, you are not able to do the curriculum activity
of reading--you're just not picking up the skill.
There are standardized tests, you would get--the child would get
an IQ test, the child would get an achievement test, and whether
you're--you could identify the child with a specific
learning disability. So, "adversely affected"
is not identified, but you can tease it out versus
looking at specific curriculum that the child is not progressing in.
Under the 504, Chapter 15 side, you're looking at a kid
with a condition, and that condition limits breathing,
that condition limits walking, that condition limits thinking.
Let me give you an example, there are a variety of kids
with certain health conditions or pain disorders.
If you're in pain all day, you can't think.
If you're a kid who is going through cancer treatment,
you have problems thinking, communicating, concentrating
at times, depending on what the medication regime is.
So, those kids would qualify. They'd probably qualify under both,
but would specifically qualify under 504.
Any other questions?
(Jackie) Yes. I have a parent that says,
"I have a daughter who is
"a Type One diabetic and also has ADD.
"Her 504 plan is only specific to diabetes and has
no provisions for the ADD. The school says--"
(Mr. Jelley) Um...
(Jackie) "The school--"
(Mr. Jelley) Go ahead.
(Jackie) "The school says she functions
just fine with the ADD
and does not recognize it as a disability.
She is a very poor test-taker. I think it is linked to diabetes.
I am currently having an IEE done, because I do not agree
with the school. How can--"
(Mr. Jelley) Okay.
(Jackie) I get them to recognize the ADD
and make testing accommodations for her.
(Mr. Jelley) That is a potential.
The answer is, potentially yes.
Because what the IEE-- and IEE is an acronym
for Independent Educational Evaluation--what that IEE evaluator
needs to focus on, if they can, is how the condition
of Attention Deficit Disorder substantially limits
the child's ability to think, recognize, concentrate--
I'm going back to my list--
(Mr. Jelley pauses)
learning, reading, concentrating, thinking
and communicating and working. So how does it get in the way,
and how does it substantially limit? And they may want to look
at why the district has taken the position that the ADD
is not having any effects during the day.
One of the things that you may want to identify
is did the child-- and--if the child is taking
a medication, and the purpose of the medication is to address
the ADD condition, by definition the medication
and the condition it-- if you have the ADD
(you can't think, you can't organize or you can't concentrate),
if the medication is helping to deal with that, there is
medical information to say, one, the condition exists.
Two, that part of the condition that's being treated
with the medication is thinking, concentrating, organizing.
So the medication itself is not going to be negative
in terms of the evaluation, the medication could be used
as a positive to say, "See, it exists to the point
"where the child has to be taking something to help manage it.
"But now that the medication is helping to manage it,
"they still have a skill set. Their skills aren't sharp enough,
and they need to go forward."
(Mr. Jelley pauses)
15.6: Parent Initiated Evaluations and Provisions of Services.
Parents can request in writing the child be evaluated
if they believe the child meets one or more
of the following: one, protected handicap;
two, no longer--my child no longer needs it;
three, my child needs more or something different.
When you try to identify
your child, you should include relevant medical information
along with their written request for provision of services.
"So, here's my records, will you help me?"
Whenever possible, requests shall state the following:
the reasons why you think your child is eligible
or no longer eligible, a suggestion of the related aids
of services that you believe the student needs,
the specific modification the district would like to make
to the current service agreement, if they have one.
And what's interesting under Chapter 15.6--
and it's 15.6 (d)-- within 25 school days
of the recipient of the receipt of the parent's request,
the school district shall evaluate the information
submitted and send a written response
to the parent's request. The school district's response
shall be in the parent's native language,
and it could state that they --either the request
is either accepted or denied. The right to meet
with the officials to discuss the issue about accommodating.
The district must give you your procedural safeguards,
which are the rules if you disagree, what you
can do to help them change their mind.
So, your evaluation process is a lot faster under 15,
because if you're an IDEA kid, the district basically has 60 days.
If you're a 504, Chapter 15 kid, the district has 25 days
to say "yes" or "no." So, one, quicker eligibility,
quicker determination of eligibility; two,
it doesn't necessarily require diagnostic testing, you can make
the determination based on the medical information provided.
For example, if the child is chronically missing school
because of migraine headaches-- the child's in pain,
has the migraine, can't concentrate, can't think,
can't be in the-- in a lighted room because the--
the brightness of the room could cause a problem.
You have a variety of kids these days engaging
in athletic activities, like cheerleading, baseball,
football, soccer, hockey, and these kids are
regular education kids getting passing grades,
and then all of a sudden get a concussion.
The concussion is such that the child can't attend school,
and the child can't attend school because
they can't concentrate or they can't think,
that's a group of kids that would possibly be eligible
under Chapter 15. They're substantially limited
because they can't do their major body like ac--
major activities of daily living, and they can't
think and concentrate. That could be a kid that you
could get a service agreement for. If some provision of services
and accommodations and what the child's expected to do
in school if they go; how much work they're expected
to turn in, because the child may be able to go to school
for part of the day, but not con-- when they come home,
they can't concentrate long enough to get
the homework done, so you could modify how much work
is going to be done. So again, example, you won't see
the word concussion in the IDEA, but you could have
a kid with a concussion possibly be eligible under 504,
and the child could possibly be eligible
under the IDEA as a kid with an other health impairment.
Kid with an other health impairment, other health impairments substant--
adversely affect the child: strength, vitality and alertness.
Alertness and thinking are, well, different,
probably within, say if there's an overlap there.
So, kids can possibly get services.
Procedural safeguards. Procedural safeguards are
the district says, "We'll do something,"
and you say, "I would like to have
a little bit more or a little different,"
and the district says, "We won't do anything."
Then you can challenge them and say, "I think you're wrong,"
and there's a way to go to a hearing
before an independent, third person to review your side
and then the other side, and make a determination--
what should be provided to the child
as a Free Appropriate Public Education.
This is where the IDEA and 504 take a little different path.
While they both use the word, Free Appropriate Public Education,
a Free Appropriate Public Education under 504 can be
a little bit broader.
(Mr. Jelley pauses)
Under 504, the provision includes a FAPE,
Free Appropriate Public Education-- includes regular
or special education and related services and aid
that are designed to meet the needs of the individual.
So, regular education changes or tweaks or modifications
are specifically identified as part of
a Free Appropriate Public Education. FAPE under 504
can include special education, related aid and services,
so a child who could have a difficulty walking
could possibly get physical therapy,
or a child who has a difficulty
with fine motor control could possibly get
occupational therapy as a standalone service
under service agreement that they may not be eligible
for under an IEP, because it's not adversely affecting
their education, but the needs for the physical therapy
or occupational therapy is required
because their major life function of walking is limited.
So again, 504 can get some kids more services or access
to services that they wouldn't otherwise be eligible for.
Please don't understand me of saying that they get
more of a service, but they get access to something
that they wouldn't qualify for under the other set of rules.
Like the ADA--like the IDEA, cost is not a consideration
in the district's responsibility to provide a FAPE under 504.
For example, kids who have a hearing impairment that need
closed captioning services could get those services under 504.
Kids who need a different set of books,
because they have visual problems and they have print needs,
could get them under 504. The...
(Mr. Jelley pauses)
service agreement, unlike the IDEA--
when you talk in the IDEA, you talk about an IEP--
the elements of an IEP are written in the regulations.
There are certain things that have to be discussed.
There are certain things that need to be ruled out.
So like, for example, if the child has a behavior
that impedes their learning, then they may need
a positive behavior support program to have that checklist
of special considerations. An IEP, you have to have
an annual goal, you have to have a present level
for kids that are taking the alternative assessment,
you have to have short-term instructional objectives.
Kids who are taking statewide assessments
can get accommodations in terms of more time on different things.
The service agreement is not detailed in terms
of you have to talk about certain items
for every kid, but the service agreement
needs to provide is a description of what
related aid, services or accommodation
should be provided, who's going to provide those services,
what the specific accommodation is, or what the modification
is, and then, if there's a disagreement, you can go
under 15.8, under the procedural safeguards,
you can request an informal conference,
you can request a due process hearing.
There's a difference between the IDEA and 504
when it comes to procedural safeguards.
And one of the differences is, under the IDEA, you have
to go through a due process hearing before you
can get to the next step, which is actually
to be in front of--in court, whether a state court
or a federal court. 504, Chapter 15 kids,
you can skip over that and go straight into court.
You don't have to, what they call,
"exhaust administrative remedies." So you're not forced
to go to a hearing under Chapter 15
with an administrative law judge, like you are required
to under the IDEA.
Let me give you an example of this and we'll
stop and take questions. We're working on one now where,
if you read the regulations, there are kids
who are secondary level, they're in their 12th year
of school, and with an IEP are going to continue
forward and go to age 21. Pennsylvania school code
provides that kids who are in their 12th year of education
with an IEP can elect to attend their graduation
with their current peer group, they're allowed to walk
at graduation and then continue on with their education.
That--that statute talks about IEP kids, it doesn't
talk about kids with Chapter 15 agreements,
but it's reasonable to believe that kids
with service agreements should also be able
to walk at graduation. If you had a service agreement
and you weren't going
to walk at graduation, or wanted to, and the other side
wasn't going to let you, you could go into court,
you wouldn't have to go to a hearing officer
and then deal with whether you can or cannot attend graduation.
Another example would be where 504 has some
pretty broad coverage. If you're a child
with a disability and you're in a wheelchair and you want
to attend the prom, and the prom is held
not at the school building, but at another building--
they rent a hotel or they contract with a hotel,
so they contract with some other facility--
that other facility has to be accessible.
So, if you have your wheelchair, and they're contracting
with somebody that doesn't have an accessible bathroom,
the prom could be forced to be moved to an accessible place
or the facility would have to be made able to be accommodated.
And depending on where you are, that can be a difference
between attending and not attending the prom.
If you're a kid with a disability,
a protected handicap kid, and you want to go
to the extracurricular activities, like the football game,
there needs to be designated appropriate seating,
so people in wheelchairs can attend the activity.
The bleachers would need to be accessible,
the bathrooms would need to be accessible.
So 504 covers the entire program, and it just doesn't cover
what goes on in a classroom. Where the IDEA
is basically looking more at what goes on in that
9:00 to 5:00 school day. Kid wants to participate
in an extracurricular activity, the service agreement
could require that there be some assistance provided
to the kid so he can participate in the extracurricular activity.
You'll see it in wrestling, where kids with visual impairments,
rather than starting with a handshake, they start
with a finger touch. You'll see it where kids
are permitted to possibly wear certain FM wireless transmitters
or their hearing aids. So it's a very broad set
of coverage in terms of allowing people with disabilities
to fully--to have full access and participate.
504 regulations and the ADA, the Americans with Disabilities Act,
are--is what will require school districts to have
accessible parking, the buttons on the doors that will allow
people to access, or the intercom systems.
504 and service agreements would cover topics like that
there's proper snow removal at the school so that
when the kid gets there and they have to exit
the transportation, they can enter the building
because the snow is removed. That the handicap parking spot
is plowed, and that the snow is just not put there
because it's at the end. That a...modification be made
to the school's emergency evacuation plans.
So if the child is a child, for example, with a seizure
disorder, and the district has a building where
the emergency evacuation system, the fire alarm, has
strobe lights, and strobe lights could possibly cause the child
to have a seizure, there needs to be a way to help that child
evacuate the building, knowing that there could be
a potential seizure-like activity occur as a result
of that evacuation. And during the evacuation,
the child--if the child were to have a seizure, what would be
the seizure management plan for that child?
Same thing if you have a child with a physical disability
and the child is--there's a fire drill in the school--
how do you evacuate the child during the fire drill?
If you're in a multistory building, the elevator cannot be used
during a fire drill, what are the evacuation procedures
for the child during the fire drill?
Districts can have designated "safe areas."
What a safe--a safe area is defined
in the Section 504 regulation, that the child will be taken
to that spot, and the first responders
would come on site, then the child would be evacuated
out of that spot. So again, for example, access
to the program, equal benefit, how to move
in and out of the program.
504 could cover the physical modifications
to the plans: that the doorways are wide enough, the parking
is sufficient. For example, on--
for sports activities, often times there is
overflow parking, and if they expect to have 1000 people,
and they only have accessible parking as if they
were going to have 500 people, that would be inappropriate.
There needs to be a specific number of spaces
based on the type of activity. An evacuation plan
through the auditorium, when it's an evening activity
and there is a school function, how does the person exit
the auditorium, if there is a fire drill? It needs to be identified.
So those would be examples of access issues for people
with disabilities beyond what you'd get in an
IEP. I can stop and try to take some questions.
(Jackie) I do have three questions for you.
The first one is, "Can a child qualify
"for accommodations for college entrance exams
with either a 504 or an IEP?"
(Mr. Jelley) Yes. The guidance office
will advise you on how to use the IEP or the service agreement
in the application or the college entrance exam testing.
Now this is an example of, the school district
is not providing the testing, the school district is
only the host site where the testing is provided.
The company doing the testing would be who you would make
the application to, and say, "I need whatever
for the accommodation." More time, I need to use
my laptop, because if it's a writing test, this is
how I do it. They would help you file
that guidance services, which are provided to everybody,
would be identified as a location where you
could get the information, you'd fill out the application,
attach it and then that company would make the determination
if they are going to grant or deny the accommodation
and whether that accommodation fundamentally alters the test.
So the answer is yes, either one can.
The person you're applying to is the entity
that's actually you're paying the money to the test for.
And that would be an example of where you paying the company
for your testing is a serv-- is a fee that everybody
has to pay, so it's not discrimination against you,
it's just a requirement that everybody who takes the test
pay the same administration fee. So, you wouldn't--there wouldn't
be a violation of the free part of
the Free Appropriate Public Education.
Next Question.
(Jackie) "If a child has a 504 now
for brain cancer at age 8,
would they always qualify? I ask as issues may arise
or reoccurrence even if she's off treatment."
(Mr. Jelley) Sure. Well--and the--
my first response would be
absolutely, because that would be a child who
has a condition. Now, my second part of the answer
is, as long as that condition substantially limits
a major life activity, such as walking, learning,
thinking, breathing... bowel, bladder, endocrine system,
the child's always going to be eligible.
Is there a point in time where I am a cancer survivor,
and I am no longer substantially limited, is,
I think, the legal question that's being asked, and I can't
answer that because it's a factual determination.
As long as I'm substantially limited,
I would get it. If I'm no longer
substantially limited, then I may not be eligible for it.
And the tussle, or the disagreement, is
over what major life activity is limited, and whether
that major life activity is substantially limited.
So, the answer is a qualified "yes" forever,
provided that you meet all of the requirements of the condition
substantially limited in one of the major life function areas.
Next question.
(Jackie) This goes back to
the child with diabetes. "While taking her IEE evaluation,
"the doctor had her test her blood sugars every hour
"and her blood sugars were between 200 and 300.
"Can I say because of the diabetes causes poor test scores?
"All I hear from the district is, 'She doesn't qualify
"for special education,' but the school district tells me
"she needs a tutor, but will not provide one.
"Should that be included in a 504 plan?
"The district says she does not qualify for IDEA
"and/or the IEP."
(Mr. Jelley) Well I think this [inaudible],
three part question, so let me
break it down into the nuggets I think I'm hearing.
Nugget one is that the evaluator took additional data
during the testing about what was affecting
the child. And now, I'm assuming,
they took that information so they can include it
in the evaluation, that even though you look
at the child and you can't see the child having problems
that affect thinking, concentration, and the ability
to focus, I could, being the evaluator,
and I'm saying that when the child's blood sugar
is at this, this is what the child is performing at.
And I'm assuming that there were times where they may have been
that it was higher and the kid got better
or worse scores. So that's part of it. The question about whether--
what the accommodation should be, if the child needs
specially designed instruction, then you are looking
more like an IEP. That's not to say if the child
needs access to the curriculum that the district doesn't have
to provide some type of direct remediation.
The case law, case law meaning people have gone to court
to figure out what the words in the regulations means,
haven't got so far as to say that the district has to provide
tutorial services, but what it does say is the district
has to provide equal access. And the question is, the way
I see it from what limited information I have,
is does this child need some type of tutor so they
can access the curriculum, because that is the related aid,
service, or auxiliary aid or service so the child can learn.
And that's a factually specific question,
just like it would be if the child needed
physical therapy to walk or occupational therapy
for the handwriting. It would seem that
because the major life activities include learning and reading,
if I can't--if I'm substantially limited
in my reading, and you don't give me--you being
the district--don't give me equal access to learn
how to read, by implication we're saying that tutoring
would be potentially eligible. And that's the open question
and the cases just haven't gone that far yet.
One, because we just had an amendment
to the Americans with Disabilities Act
that changed the definition of disability, and two,
we're just starting to get a group of kids through
the system where families are asking for things
in a different way, and to get equal access
to the program, as opposed to just equal access to the building.
Although the Section 504 Rehabilitation Act was in 1974,
people are just starting to see this as an avenue for change
for kids during the school day. Hard to believe that
30 plus years later, we're still trying to understand
what it means, but that's just the reality of it.
The first 30+ years have been spent basically
on the IDEA / IEP side, and the first 30+ years
with 504 have focused a lot on physical accessibility,
program access. And now that we're accessing,
that means we get in and we can attend,
we're now starting to ask the question,
"How do I get the benefit from being there?"
So I'm in the room, but now I need a little bit more.
For example, the kid with the home ec. class,
the door is wide enough to get me through in my chair,
but once I get in there, none of the knobs are accessible.
The sewing machine, I don't have a way that I can use my hands;
they're not modifying the foot switch to a hand switch.
So I get the access in the room, but now I have to get the switch.
For years and years and years ago, people would say,
"You can't go in that room, because it's dangerous.
"There aren't any sewing machines that are too low for--
or low enough for you." The same thing
in chemistry classes where the labs are traditionally
built high, and people wouldn't get, years and years
and years ago, wouldn't give kids the shot.
So we've progressed, but now we need to keep moving
forward to get additional activities.
And if we look at column one, 104.37,
the non-academic extracurricular activities is
what I'm speaking about. You know, access
into the sports program, access into the clubs
(chess club, science club, movie club, band),
all of those things you can request accommodations
for participation and the ability to get equal access.
We're almost to the end. What I wanted to try
to accommodate today was, there are three--there are
at least three different laws: IDEA, 504,
and the Americans with Disabilities Act.
At times, you have to do what I call finger exercises,
and that's why I laid out this chart.
Column 1 you have your 504 regulations;
you have to finger through that. Column 2, you have your I--
Pennsylvania regulations implementing 504.
You have to finger through that and see where they're
consistent, and where one gives you more.
And then column 3, you have your IDEA regulations,
and where that goes. Column 4, I don't have on there,
which is the ADA (Americans with Disabilities Act),
and what's called the Title II regulation.
Title II is what the regulations that affect
public schools as a public accommodation.
So there are times where you can ask for things under one
that you can't ask--well you can ask for under the others,
but may not be required to get.
So if you're asking the right thing--asking
for the right thing, but under the wrong set of rules,
you will get the right answer but it won't be right for you.
You can't have it under the IDEA, but you
can have it under 504 and the ADA.
The other side may not know that.
The other side might be right under the IDEA, but not
under the other two, so you have to think it through.
Who is responsible for what, under what set of rules
and what am I--what are they supposed to give me,
and if they're giving it to me, is it giving me equal access
to the aid, the benefits and services provided to everybody else?
Jackie, I'm losing track of time, can you tell me what time it is?
(Jackie) Probably have about 2 minutes, and I just have
one more question left, if you can wrap this up with that.
And it has to do with equal access. The parent had indicated,
"Does equal access include all education, including
gifted education or advanced placement classes?"
(Mr. Jelley) Well, if you're talking
about gifted education, you have to be eligible
for the gifted education. So you would be a kid
with a disability that all-- a protected handicap kid,
and you'd also be a kid who qualifies under something
called Chapter 16 for gifted education.
So you'd have to meet that requirement.
If you are a protected handicap kid,
you should be able to access the advanced placement classes,
but again, advanced placement is based on academic skill.
So, if you don't have the skillset to take
trigonometry 97, because you haven't taken trigonometry
1 through 96, then you wouldn't be accessing something
that you could otherwise do. If all kids are required
to pass these other classes, or at least to have access
to them and get exposure to the m--the materials--
you don't necessarily get to jump over everything else
and just land someplace if it's a requirement that you go
through these activities.
One thing we didn't touch on today, and we may do
in the future, is the discipline of a child with a disability
under Chapter 15. How you discipline kids consistent
with Chapter 15 and 504. We haven't touched on today
the concept of what's happening today in school with kids
picking on other kids, and whether it's harassment,
teasing and bullying, and when that is a violation
of possibly 504 and the ADA. And how do you file complaints
or deal with local people who are having difficulty understanding
the effects of harassment or bullying. Those may be done in the future
based on what people ask the Parent Education Network to do.
PEN is a federally funded grant. We provide information to families,
and schools and professionals about how to access services
and how to make decisions about what you're accessing,
that it's benefiting you. This is sponsored by PEN
as a result of the federal grant, and we're looking at doing
more of these in the future based on what people tell us they
need and just trying to put together the materials.
Jackie, how are we for time?
(Jackie) We are at--at that time,
and we can close.
(Mr. Jelley) Alright.
(Jackie) Okay, thank you so--
(Mr. Jelley) Thank you.
(Jackie) much. Thank you so much for participating today
and for als-- for all your knowledge,
Attorney Jelley. We really appreciate you doing this
(Mr. Jelley) Thank you.
(Jackie) presentation for us today.
(Mr. Jelley) Bye. (Jackie) Buh-bye.