This
article was first presented by the author as part of a seminar held
May 12, 2003, entitled Understanding Section 504 in New Hampshire: A
Practical Contrast with IDEA & ADA. The seminar was sponsored by
Professional Development Network
of Eau Claire, Wisconsin, and took place at the Crowne Plaza Hotel in
Nashua, New Hampshire.
Table
of Contents
I.
Overview
The purpose of this
section is to provide the educator with a general understanding of the
procedural safeguards of Section 504. This section is not intended to
provide an exhaustive discussion of the procedural requirements under
Section 504, but instead the goal of this section is to familiarize the
educator with the procedures as they relate to the protection of
students under Section 504.
Return
to Table of Contents
II.
The Regulatory Framework.
Section 504 requires that
school districts extend a number of procedural safeguards to those
individuals protected by Section 504. This section briefly describes
each of those safeguards.
A. The written
assurance of non-discrimination.
34 CFR 104.5(a) requires
that school districts provide the federal government with written
assurance of non-discrimination and compliance with Section 504. School
districts have been providing this written assurance to the federal
government since 1977.
B. Designated
Section 504 Coordinator.
34 CFR 104.7(a) requires
that each school district designate a Section 504 coordinator. This
individual is defined as the person responsible for coordinating the
district's 504 efforts. There is no prohibition against designating more
than one individual as a Section 504 coordinator. Therefore, most school
districts adopt building level coordinators, as well as an overall
supervisory coordinator.
C. Grievance
Procedures.
34 CFR 104.7(b) requires
the districts adopt grievance procedures to resolve complaints of
discrimination. A sample grievance procedure is attached as Appendix A.
D. Notice.
34 CFR 104.8 requires the
district to provide notice to students, parents, employees, unions and
professional organizations of non-discrimination in admission or access
to or treatment or employment in its programs or activities. The notice
must also specify the responsible employee designated to coordinate
compliance. It is prudent for every school district to have a 504 policy
statement and the 504 policy statement is an appropriate location for
identifying the designated coordinator.
E. Annual
Identification and Location.
34 CFR 104.32(a) requires
that school districts annually identify and locate all Section 504
qualified children with disabilities in their geographic area who are
not receiving a public education. This requirement is akin to the IDEA's
Child Find requirement and districts can readily amend their Child Find
notices to include a Section 504 Notice.
F. Annual
Notification.
34 CFR 104.32(b) requires
that school districts annually notify persons with disabilities and
their parents or guardians of the district's responsibility under
Section 504. A sample notice entitled "Parent/Student Rights and
Identification Evaluation and Placement" is attached as Appendix B.
G. Procedural
Safeguards Notice.
Districts are also
required under 34 CFR 104.36 to provide parents or guardians with
procedural safeguards giving them notice of their various rights under
Section 504. There are several times during the planning process when
parents/guardians should be provided their rights under Section 504:
- When eligibility is
determined.
- When a plan is
developed.
- Before there is a
significant change in the plan for services.
Notification should
include the following rights under Section 504:
- Right to file a
grievance with the school district over an alleged violation of
Section 504 regulations.
- Right to have an
evaluation that draws on information from a variety of sources.
- Right to be informed of
any proposed actions related to eligibility and plan for services.
- Right to examine all
relevant records.
- Right to receive all
information in the parent's/guardian's native language and primary
mode of communication.
- Right to periodic
re-evaluations and an evaluation before any significant change in
program/service modifications.
- Right to an impartial
hearing if there is disagreement with the school district's proposed
action.
- Right to be represented
by counsel in the impartial hearing process.
- Right to appeal the
impartial hearing officer's decision.
Section 504 regulations do
not:
Return
to Table of Contents
III.
General Rights.
Persons disagreeing with
the identification, evaluation and placement of their children have
several options available to them. Those options including the
following:
- Filing a complaint or
grievance through the district's Section 504 Grievance Procedure;
- Requesting a Section
504 Impartial Hearing;
- Filing a complaint with
the Office for Civil Rights; and
- Upon exhaustion of IDEA
remedies, filing suit in federal court.
Return
to Table of Contents
Appendix
A
SAMPLE
SECTION 504/TITLE II GRIEVANCE PROCEDURE
(recipient)
has adopted an internal grievance procedure providing for the prompt and
equitable resolution of complaints alleging any action prohibited by
Section 504 of the Rehabilitation Act of 1973 (Section 504) or Title II
of the Americans with Disabilities Act
(Title II). Both Section
504 and Title II prohibit discrimination on the basis of disability.
Complaints should be
addressed to: (name,
title, address, telephone number)
who has been designated to coordinate Section 504/Title II compliance
efforts.
- A complaint must be
filed in writing, contain the name and address of the person filing
it, briefly describe the alleged discriminatory action, and identify
the date the action occurred and the name(s) of the person(s)
responsible.
- A complaint must be
filed within (number of days)
after the complainant becomes aware of the alleged discrimination.
(Processing of allegations of discrimination which occurred before
this grievance procedure was in place will be considered on a
case-by-case basis.)
- Unless the matter can
be promptly resolved informally, an investigation will be conducted
with respect to all timely filed complaints which raise issues under
Section 504 and/or Title II. The investigation shall be conducted by
(name of person).
These rules contemplate informal but thorough and impartial
investigations, affording all interested persons and their
representatives, if any, an opportunity to submit evidence relevant
to a complaint.
- A written determination
as to the validity of the complaint and a description of the
resolution, if any, shall be issued by (name
of person) and
a copy forwarded to the complainant no later than (number
of days) after
its filing.
- The Section 504/Title
II coordinator shall maintain the files and records of the (recipient)
relating to the complaints filed.
- The complainant can
request a reconsideration of the case in instances where he or she
is dissatisfied with the resolution. The request for reconsideration
should be made within (number
of days) to (person
responsible for handling appeals).
- The right of a person
to a prompt and equitable resolution of the complaint filed
thereunder shall not be impaired by the person's pursuit of other
remedies such as the filing of a Section 504 or Title II complaint
with the responsible federal department or agency. Utilization of
this grievance procedure is not a prerequisite to the pursuit of
other remedies.
- These rules shall be
construed to protect the substantive rights of interested persons,
to meet appropriate due process standards, and to assure that (name
of recipient)
complies with Section 504, Title II, and their implementing
regulations.
Return
to Table of Contents
Appendix
B
SAMPLE
PARENT/STUDENT RIGHTS IN IDENTIFICATION EVALUATION AND PLACEMENT
Please Keep This
Explanation for Future Reference
(Section 504 of the
Rehabilitation Act of 1973)
The following is a
description of the rights granted by federal law to students with
disabilities. The intent of the law is to keep you fully informed
concerning decisions about your child and to inform you of your rights
if you disagree with any of these decisions.
You have the right to:
- Have your child take
part in, and receive benefits from public education programs without
discrimination because of his/her disabling conditions.
- Have the school
district advise you of your rights under federal law.
- Receive notice with
respect to identification, evaluation, or placement of your child.
Parent consent must be obtained before conducting an initial
evaluation and placement.
- Have your child receive
a free appropriate public education. This includes the right to be
educated with nondisabled students to the maximum extent
appropriate. It also includes the right to have the school district
make reasonable accommodations to allow your child an equal
opportunity to participate in school and school-related activities.
- Have your child
educated in facilities and receive services comparable to those
provided nondisabled students.
- Have your child receive
special education and related services if s/he is found to be
eligible under the Individuals with Disabilities Education Act or
Section 504 of the Rehabilitation Act.
- Have evaluation,
educational, and placement decisions based upon a variety of
information sources, and by persons who know the student, the
evaluation data, and placement options.
- Have transportation
provided to and from an alternative placement setting at no greater
cost to you than would be incurred if the student were placed in a
program operated by the district.
- Have your child be
given an equal opportunity to participate in nonacademic and
extracurricular activities offered by the district.
- Examine all relevant
records relating to decisions regarding your child's identification,
evaluation, educational program, and placement.
- Obtain copies of
educational records at a reasonable cost unless the fee would
effectively deny you access to the records.
- A response from the
school district to reasonable requests for explanations and
interpretations of your child's records.
- Request amendment of
your child's educational records if there is reasonable cause to
believe that they are inaccurate, misleading or otherwise in
violation of the privacy rights of your child. If the school
district refuses this request for amendment, it shall notify you
within a reasonable time and advise you of the right to a hearing.
- Request mediation or an
impartial due process hearing related to decisions or actions
regarding your child's identification, evaluation, educational
program or placement. You and the student may take part in the
hearing and have an attorney represent you. Hearing requests must be
made to ______________________________.
- Ask for payment of
reasonable attorney fees if you are successful on your claim.
- File a local grievance.
The person in this
district who is responsible for assuring that the district complies with
Section 504 is (name
of person).
Telephone Number
________________
Return
to Table of Contents
.gif){kind=logo}
