Season 2: Episode 9: Section 504 Plans- Common Challenges and Pitfalls

Hope your summer has been relaxing and productive! In this timely episode, Kathy, Lisa, and Miriam continue discussing Section 504 Plans and common pitfalls that school districts encounter. Do all children with qualifying disabilities need a 504 Plan? What are the basics that must be included in a 504 Plan? How specific should the plan be and why? Join us for an informative and lively chat on these and other disability-related questions.

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Miriam: Welcome back to Class Act: Updates in Education Law. I’m Miriam.

Lisa: I’m Lisa.

Miriam: We’re attorneys at Walter Haverfield, we practice school law. Every few weeks we get together, we talk about recent legal developments in the field of education that are relevant to school boards, administrators, teachers, just anybody who works with the kids in the schools.

Lisa: Yes, so in our last episode, we talked about Section 504 and we had Kathy Perricko, a partner, who frequently advises school districts on these types of issues about children with disabilities and we talked about the general 504 laws on evaluations, Child Find, and some differences between special education law and Section 504. Today we have Kathy back. Welcome, Kathy.

Miriam: Welcome.

Kathy Perricko: Thanks for having me back.

Lisa: Let’s just pick up where we left off, the team completes an evaluation, meets with parent, decides if the child is disabled or not under Section 504. Then we talked about the next step is determining if they actually need accommodation plan or not.

Miriam:  Let’s say they are disabled under Section 504 and the team decides they do need a plan. What does that plan look like practically?

Kathy: If you are going to say that the student is disabled and after even you consider the mitigating measures determine that they still also need accommodations, the actual analysis is whether the child needs accommodations to have an equal opportunity to participate in and obtain a benefit from the educational program. Just to jump right into one pitfall here, once you determine eligibility and that there’s need for some accommodations, you really do want to keep it narrow to what accommodations are required to level the playing field and what accommodations are based on the identified disability. Not just a free for all of, for example, if you have diabetes, all of a sudden, you get extended time, class notes, an extra set of textbooks. You want to make sure that the whole team is analyzing what’s needed based on the disability to level the playing field and to allow equal participation and equal opportunity to benefit.

Lisa: Yes, I think you’re hitting on a really common pitfall that we see either districts just using. “Okay, you have this diagnosis, so these are the accommodations you’re going to get,” like automatic.

Miriam: Like a cut and paste almost, yes.

Lisa: Right, or on the other hand too, sometimes parents are really demanding of extended time seems to be a big and popular one. We need to be cautious that we’re not just throwing that on the plan, it really is driven by what the child’s needs are.

Kathy: Sure, and the other thing that I think it’s time to touch on here is you might have a disabling condition that is episodic or inactive in different periods of the year. One of the easy examples to give here is a student with asthma who has a substantial limitation on the activity of breathing during the cold months of the year. For those of you who’re not listening in Ohio, just to define that here that means-

Miriam: Cold!

Kathy: – October through at least April if not May. What you would do in that case, maybe that student would typically be able to walk because there’s no bus into the high school for example, but during those cold months, you might have the 504 plan become active when the disabling condition is most active, and be providing transportation as a related service to that student for their asthma during that active period of time.

Miriam: Interesting. I don’t think that most school districts think of transportation as a Section 504 service, but in that example, it definitely would be. That’s something that the child needs to level the playing field to get to school.

Kathy: Correct.

Lisa: Yes, and touching on the episodic disabilities is really important because you very well may have a student who just during a certain period of time or under certain conditions needs to have a plan in place.

Kathy: Correct.

Miriam: Now, let me just ask quickly while I thought of it, what about students with a temporary condition like a broken leg or something that is just going to get itself fixed soon?

Kathy: That typically would not find a student eligible under Section 504.

Lisa: Yes, I think there’s been some guidance actually from the office of civil rights specifically. I think the broken limb is the popular one where obviously, you provide what the child needs to get around for that period of time, but it doesn’t fall into the realm of qualifying under Section 504 and thus creating any accommodations.

Miriam: So even if a child, let’s say, broke her right arm or whatever and needs notes, the district would not create a 504 plan for that.

Kathy: You would provide it, but you would not put it on the plan nor likely go through the evaluation process. Provide the elevator key, provide an aide or provide a peer buddy to carry the books for the student on crutches, but that’s not going to be a situation where a student would be evaluated then put on the 504.

Miriam: Thanks.

Lisa: Best practices, kind of.

Kathy: Be nice.

Lisa: Let’s jump back to our conversation about what’s going to go into this 504 plan and how we’re going to develop it.

Miriam: Yes, what should teams include in a 504 plan? I think we’ve all seen really excellent detailed plans and then we’ve also seen not so excellent, not so detailed plans. Let’s talk about what are the basics that your team should be including?

Kathy: Again, I can’t say it enough, it needs to be based on the nature of that child’s disability and what is truly necessary to level the playing field for that child. What you want to do across the entire plan is be as concrete, detailed, and specific as possible. One of the easy examples to give here is extended time. I think Lisa you brought that up, maybe it was you, Miriam, that everybody wants extended time as soon as there is eligibility. If it’s truly necessary, what you would want to do is not say extended time to complete assignments and tasks because then you have Mrs. Smith showing up in late May with the assignments from September and asking you to grade them. I’m giving an extreme example to highlight the point, but what is extended time for that student? Is it extended time not to exceed double time? Is the student somebody who only needs extended time on long-term written assignments or due to anxiety, only in testing situations? Maybe there’s no need for extended time on assignments, but there is for testing. So being as clear and concise as possible, what does extended time look like for that student.

Lisa: And I would say try not to get caught up in being formulaic about it. You don’t have to say every student gets 50% of extra time. As descriptive as you can be and it very well may be literally writing, “Student gets an extra day to turn in an assignment.” Really, that descriptive language makes it much easier for every single teacher and every other staff member who has to implement the plan to understand what they need to do.

Miriam: I’ve definitely heard districts do this. I’ve definitely heard meetings where the parent is asking for extended time and the district says, “Well, the most we give is this time and a half, that’s the most anybody gets.”

Lisa: What does that look like is my next question to that.

Miriam: Yes, but also you can’t put a limit on it like that. It’s what the child needs, you can’t be, like you were saying, formulaic, like, “This is the most that you will get, time and a half and that’s it.” If the child needs something different, they get something different to equal the playing field though, not to let them necessarily shine or get all A’s just to level the playing field.

Kathy: Anytime that a team member is tempted to say, “This is what we do here,” that should be an immediate mental cue to just stop talking because it’s based on the student’s disability, not based on what any district does or doesn’t do. Conversely–

Lisa: Sorry to interrupt you, but really going back to our evaluations, you really should have some data in that evaluation that’s going to help you make this decision. The team shouldn’t just be sitting at the table trying to create this plan going, “Well, we don’t know.”

Kathy: Correct.

Lisa: If you really did a thorough evaluation, you do know because you’ve done assessments, you’ve done observations, your teachers collect data, maybe you did a trial period to see how much they actually needed. You’re not just pulling this out of thin air.

Kathy: Correct. What I was starting to say when I said conversely is, especially when you’re in a high school setting and you have variation amongst teachers in terms of acceptance of late work, you wouldn’t want to fail to put the accommodation of one extra day, for example, on there just because the teacher sitting at the table happens to accept late work because there is variation among different providers in terms of whether late work will or won’t be accepted. You also have to remember that these plans can very easily be taken to another district or into an office of student assistance in the collegiate setting. So if the student needs it, it should be documented even if it’s something you’re giving as a matter of course.

Lisa: Well, and what you’re kind of explaining is what we refer to often as a stranger test. If somebody who doesn’t know the kid, doesn’t know the district, and what you offer, if they pick up that plan, are they going to understand what the child needs?

Miriam: If a sub walks in, he or she should be able to look at that child’s 504 plan and clearly understand who is responsible for what and what the key terms mean.

Lisa: We have this accommodation plan, we’re putting in accommodations where we are clearly defining the key terms and what the accommodation looks like, what else do we need to make sure is going into this plan?

Kathy: The person responsible and one of the things you want to stay away from here is putting down that a student or a parent are solely responsible for any accommodation. It seems funny to say, but I’ve seen it frequently. One easy example to give here is, in relation to students with allergies, if snacks are given during class parties or if there’s snack time allowed, for example, for full-day kindergarteners, even if the building might otherwise be food free, you don’t want to write a plan saying that the parent is responsible for providing snacks for parties if otherwise, parents wouldn’t be responsible. So again, to tease that out a little bit, the kindergarten snack example, there all parents are responsible for sending in their own child’s snack as opposed to maybe a planned pizza party as a reward system for the third-grade reading initiative. If the student has a dairy allergy, for example, you wouldn’t want to write the plan such that the parent of the student with a dairy allergy has to bring in an alternate food for their child during that class party. If the parent though says, “You know what, you guys are great, I love you, I trust you, I just really would feel more comfortable if I provided a safe snack for my students,” then you could write, in the prior written notice after the meeting, that we’re writing this plan to show that we will provide alternate snack items for district-sponsored food-based events, but the parent has elected to provide a bank, if you will, of safe snacks for their student. You wouldn’t want to still write the plan as though the parent was responsible for implementation.

Miriam: So, Kathy, are you saying that nothing in those Section 504 plan should be left to the parent or the student? Because I definitely do see that. I definitely see Section 504 plans that say, “This student will bring the paper to his teacher” or “The student will ask for notes” or “The student will ask for a signature at the end of the class,” and some districts do put that on a child.

Kathy: I think it would be okay as long as you were pairing it with a teacher action that follows. The student will present their planner to the teacher at the end of each class because again, you want to facilitate responsibility and ownership of requesting accommodations and the support that you need, but that the teacher will check the planner to make sure that it correctly designates all the assignments due, and has, for example, relevant due dates in it or relevant amounts to be completed by a certain time.

Lisa: Maybe you even have that paired with, “The teacher will prompt for that under certain conditions” because you don’t want to forget the child’s disability that even led to the need for the plan and get lost. You want to build the independence of the child, all positive things, but you don’t want that to fall through the crack and because of the disability, the child’s not doing it and therefore, the district isn’t really providing it either.

Kathy: Correct.

Miriam: I guess that makes sense because this is a 504 plan of what the district is going to provide in terms of accommodations, modifications or services. It’s not a contract of what the child is going to do to get their needs met. That makes sense.

Lisa: Right.

Miriam: Okay, so obviously, with all of these discussions, you’re going to have a team that sometimes will disagree. Conflicts will arise and I think that’s common to all team discussions and decisions especially when related to students with disabilities. How do you both see disagreements get resolved? Who makes the decision if the parents want some kind of accommodations and the district says, “No, we don’t really see that this is needed to equal the playing field, to level the playing field.”

Kathy: You’re talking about initial accommodation plan. You do need consent to provide those accommodations initially, but once you get consent, if a parent disagrees with the fact that you want to provide something that they don’t feel is necessary or conversely that you’re refusing to provide something that they are requesting of you, there is really no trump card in terms of accommodations. Any disagreement about the provision of accommodations would just be noted in the prior written notice that gets paired with the procedural safeguards that you would give to the parent after the meeting.

Lisa: I think it’s important just for the district to not lose sight of they’re the ones who are obligated to provide the accommodations or to meet the child’s needs to level that playing field. Ultimately, the district needs to determine what it is that the child actually needs, not just so and so wants this or so-and-so wants that.

Miriam: What you’re saying, Lisa, I think and you too, Kathy is that the district’s decision is ultimately the one that will stand. So let’s say the parents says, “I would like extra time for my child that has asthma because they want to get into a good college, so I would like them to have extra time in SATs,” and the district says, “No.” The team decides that’s not necessary to level the playing field for the student, and the team’s decision is the one that that stands.

Lisa: Keep in mind, we’re not going to dive into it too much today, but there are modes for parents to challenge things as well. The parent can challenge it, but the district is the one that makes that call.

Kathy: Correct. There’s two ways for a parent to challenge it and I know we’re not going to dive into the weeds on this, but I do want to say that the most common method that I’ve seen parents use to challenge 504 disputes is through filing a complaint with United States Department of Education Office for Civil Rights. They have jurisdiction to investigate disability-based discrimination, which is how they would perceive a challenge under Section 504 because, again, if you’re not evaluating appropriately or accommodating appropriately, that would equate to disability discrimination. Our State Department of Education does not have jurisdiction to investigate complaints related to Section 504. The other manner in which parents can raise a challenge under Section 504 is through a request for a due process hearing under Section 504. In Ohio, and I can fairly presume it’s like this in other states because it’s a federal law, there is no state agency that’s going to assist districts by providing, for example, a hearing officer. So districts do need to have a bank of hearing officers on a designated panel if and when they would get a due process request, and that’s something I think a lot of districts aren’t necessarily aware of.

Lisa: Also, many districts, well, all districts really should have an internal grievance procedure too, even prior to getting to those level of complaints.

Kathy: Correct, and those different avenues, and at a minimum, that internal process should be laid out in the procedural safeguards that you’re giving to parents at the end of a meeting.

Miriam: You mentioned that parents get procedural safeguards and I think that you also mentioned a prior written notice. I don’t know that all districts are aware of this, that they should just be documenting the decisions and the meetings if through prior written notices for Section 504 meetings as they are for special education, IDA, and IEP meetings. I think that some districts are not aware of this.

Kathy: Yes, and I think sometimes they’re underused too for districts that are. When we give presentations and things, really talk up the prior written notices because they really are your friend, they’re your way to document what you’re doing should anything get challenged down the road, and it’s really the opportunity for the district to lay out what happened, what your evidence and reasoning is, and it is not a document that parents can pick and choose what you put into it. So it’s really the opportunity for the district to give their side of what is happening with the process. I really encourage districts to write these and really include good details in them should you ever need them down the road.

Lisa: I’ll throw in a little yabbit, which is like a rabbit, but that is cute. Parents can always challenge the content of their child’s education record. While they can’t demand or dictate that anything go in that prior written notice, if they do disagree with the content of it, they can always request a records’ hearing under FERPA.

Lisa: Right, absolutely, so make sure you’re being factual,

Kathy: but I will absolutely agree with the fact that it is your last best chance to tell your side of the story uninterrupted.

Miriam: I think that many students who have disabilities and have these Section 504 plans also have other kinds of plans. They might have a health plan or an emergency action plan or a crisis plan, whatever it’s called in your state, in your location. Kathy, can you talk a little bit about the difference between a medical plan, a health plan, and a Section 504 plan?

Lisa: Maybe I’ll narrow that down just a little bit more. I think the health plan is the big confusion sometimes of whether or not a child needs a health plan and an accommodation plan, one, the other, both.

Kathy: This is really driven by things that OCR has said in the past and I know this is really going to cause some heart palpitations for districts out there, but health plans aren’t necessarily substitutes for conducting an evaluation and determining eligibility under Section 504. The key to compliance is going to be going through the procedural requirements or the process, not necessarily ultimately what the plan is called. If you’ve evaluated under Section 504 and found that there’s not a substantial, I’m going back to the asthma example because I think it’s easiest, there’s not a substantial limitation on a major life activity, but the student still does need to have an inhaler. That might be a plan in place in the clinic for when the student can access it on those rare occasions, that wouldn’t be converted to a Section 504 plan.

Miriam: I’m sorry, but are you saying that if a child has a health plan, the school district should at least consider a 504 plan.

Kathy: They should at least consider whether there is enough information to suspect a disability under Section 504 that would warrant going through an evaluation.

Lisa: Our lawyerly answer, right?

Kathy: It’s very, feels very impractical, but knowing how OCR has chimed in on the topic, that is what’s out there.

Miriam: I just want to clarify so there’s no confusion. If a child needs a Section 504 plan, you’re not going to be able to get away with just having a health plan and saying, “Wel, this also covers our obligations under Section 504.” The office for civil rights when they come in to do a review, they’re going to want to see those words on top of the page.

Kathy: I’ve seen them go both ways. Again, I think if you’ve gone through the evaluation, you’ve said eligible, and you’ve determined on whatever piece of paper it is that this is what you need to level the playing field, I don’t know that OCR would levy a finding of disability-based discrimination because the wrong words were at the top of the plan. It’s really having skipped the whole process that would cause an issue.

Lisa: The process is probably the key thing if an investigation happens, that’s what they’re looking at. Would you agree, Kathy?

Kathy: Yes.

Lisa: Lets, before we wrap up for the day, just dive into some of the common mistakes that we see with 504 plans.

Kathy: One of the things that really gives me heartburn when I see is districts using banks through their software programs, pull down, fill in banks for accommodations, copies, and pastes from other students evaluations. Sometimes they forget to cut the student name. Those are more format type issues, laziness type issues if you will. The other concern is making sure that all of the people expected to provide the accommodations have a copy of the plan and understand their obligations on the plan or under the plan.

Miriam: I think that’s a really important point. I think that sometimes the Section 504 plan does not make it to people who need to have it like bus drivers, the aides…

Kathy: Art teachers.

Lisa: Or specials.

Miriam: Specials, yes, art teachers, music teachers. I think sometimes you’ll have a child’s broad need that the child needs this kind of accommodation across settings, but not everybody who is in that setting gets a copy of the plan and that just looks terrible if the parent files complaints saying, “My child needed this music class and didn’t get it.” Then the music teacher’s like, “All right, I don’t know. I think I knew that there was a 504 plan, I never saw it.”

Lisa: The specials are the easy one to forget sometimes because often they change every trimester or quarter, so sometimes the team will forget to send it out.

Miriam: That’s an important point.

Lisa: Those are the key ones to make sure you have a good process in place for making sure everyone who needs to know knows and knows the current plan.

Kathy: Right. Or trying to insert a reasonableness standard or a financial element to it and saying, “That’s not reasonable. That’s not allowed because that’s not anywhere in Section 504 for this purpose” or saying, “That’s too expensive, we can’t afford that.” I think when we talk about extracurriculars in a different episode, we can get into that a little bit more.

Miriam: Yeah, I never want to hear…we don’t usually give legal advice here on this podcast, but I never want to hear a team decision being made because we can’t afford it.

Lisa: Or we just don’t do that here.

Miriam: Or we just don’t do that here.

Lisa: Yes, don’t say those words. [laughter]

Kathy: The other failure is in not documenting refusals of accommodations or, for that reason or any other reason, failing to reconvene the team and figure out whether changes are needed to the plan. For example, a student refuses extra time on tests and continues to get great grades, then you might need to reconvene and say, “That’s not a necessary accommodation. The playing field is clearly already level enough.”

Lisa: Yes, and along the lines of that copy-paste issue we talked about earlier, revisiting those every year or as the student progresses, even mid-year to see do they still need these or do they need something else?

Kathy: Right.

Miriam: How often does the plan need to be revisited?

Kathy: Annually.

Lisa: At least.

Miriam: At least annually.

Kathy: Unless there’s another reason or a team member requests.

Miriam: Okay. This is a little bit more rare, but I still do want to mention it that sometimes school districts are upset. Sometimes situations can be very stressful with parents, so school districts sometimes might be tempted to take action that could seem retaliatory and just take caution and wait on that or consult with your attorney before, let’s say, for example, filing truancy charges, reporting parents to child protective services, restricting parent communications. If you’re attempted to do any of that in connection with a contentious parent or a difficult meeting, I would strongly urge you to speak to your attorney before any of that happens.

Lisa: I would say that retaliation component has been a complaint we’ve seen more frequently lately.

Kathy: Correct.

Lisa: By no means are we saying, “Don’t do these things if they’re appropriate,” you’re just going to absolutely want to make sure you have a basis for doing them.

Kathy: And have timely done them in connection with the event that triggered the action you’re about to take as opposed to delaying it and then allowing more protected activity to creep in between point A and point B and then causing it to look retaliatory.

Miriam: Yes, so, for example, if you’ve had a concern about a child’s safety or welfare, if you’ve had that concern for several months, but you only make that phone call after a bad meeting, that’s not going to look good.

Lisa: That’s probably a loaded issue right there other than just that you might look like you have retaliated. Before we conclude this, do we want to dive into briefly some discipline issues that we’ve seen with 504?

Miriam: I just want to say, we talked about discipline on this podcast in episodes 14, 15, and 16, so we’re not going to repeat all of the disciplinary guidelines here, but definitely when students have a disability, even if there’s no Section 504 plan, their educational placement cannot be changed, cannot be significantly changed without a manifestation determination review.

Lisa: Let’s add the caveat here. Remember when we were talking, going back to eligibility for a 504 plan and you said a child’s eligible, but then we have this analysis of do they need a plan or not? You may have a child that’s eligible that doesn’t have a plan and they still have the protections for discipline among the other 504 protections. I think that often gets lost with many districts, so you’re going to want to make sure you’re maintaining some records of that.

Miriam: This is the ADHD kid, the child with ADHD who-

Kathy: Is medicated.

Miriam: – is medicated, so he’s eligible for Section 504 protections, he does not have a plan though because he’s doing so well, and then maybe one day he doesn’t take those medications.

Kathy: Probably more than just one day with discipline.

Miriam: Yes.

Lisa: Or it stops working as well.

Miriam: Exactly, and then the child is in all kinds of trouble in terms of discipline and the district still has to remember Section 504 protects that student. If that child will be out more than 10 days consecutively or nonconsecutively if there’s a pattern of removal, the team has to first meet and decide if the conduct was a manifestation of that child’s disability. If it was a manifestation, the district cannot discipline a student for his disability, that would be discriminatory. I’m not going to just delve right into that and unpack it further. If you have not heard about this, if this is all news to you, you should go back and listen to episodes 14, 15, and 16, where, in great detail, we discussed the protections for students in general education as well as students with disabilities. So thanks very much.

Lisa: Thanks for joining us again, Kathy.

Miriam: Thanks, Kathy.

Lisa: Anything, last things you want to add?

Kathy: I just wanted to hit one highlight that’s different that districts aren’t really familiar with which is that under Section 504 and the implementing regulations, OCR’s expectation is that the manifestation review has to be completed before the significant change of placement. In other words, before the expulsion hearing as opposed to students on IEPs you would have the meeting within 10 days of the decision to expel.


Lisa: Yes, that’s a good distinction to point out. Thank you again for joining us. Next time we’re going to talk about Section 504 and how that impacts extracurricular activities and district applications there.

Miriam: Sports, athletics.

Lisa: Yes, so thanks for listening. Thanks for joining us.

Miriam: Don’t forget to leave us feedback, rate us highly on iTunes or Stitcher or send us an email, tell us more about what you want to hear. We love hearing from our audience. Thank you!

Disclaimer: The content of this podcast is for general information purposes only. The podcast is not legal advice, does not create an attorney-client relationship, and should not be relied upon in making legal decisions. Actions on legal matters should be taken only upon advice of legal counsel. Walter | Haverfield does not guarantee the accuracy of the information contained in this podcast.