An individual has a disability under the Title II of the ADA (“ADA”) and Section 504 of the Rehabilitation Act of 1973 (“Section 504”) if he or she has a physical or mental impairment that substantially limits one or more major life activities, has a record of such impairment, or is regarded as having such an impairment. (28 C.F.R. Part 35.108(a)(1)) Local educational agencies (“LEA”) must interpret the definition of “disability” liberally when evaluating students’ eligibility for Section 504 services. (Dear Colleague Letter, 58 IDELR 79 (OCR 2012)) While a student may not be eligible under the IDEA he or she may still meet the broad criteria for eligibility under Section 504 and equal opportunity/access protection under Section 504 and/or ADA.
Section 504 Plan and Documentation
Section 504 requires an LEA to provide eligible students a free appropriate public education (“FAPE”). (34 C.F.R. 104.33(b)(1)(i)) As a FAPE matter, at a minimum, a Section 504 Plan should address the following five components: (1) nature of the student’s disability and major life activity it limits (34 C.F.R. 104.3(j)); (2) basis for the disability determination, often accomplished through evaluations (34 C.F.R. 104.35(b)); (3) educational impact; (4) accommodations/services (34 C.F.R. 104.33(b)(1)(i)); and (5) FAPE placement in the least restrictive environment (“LRE”). (34 C.F.R. 104.34) Currently, there is no requirement for FAPE under the ADA.
Denial of Opportunity/Access Under the ADA and 504
In March of 2016 the 9th Circuit issued its published decision in A.G. v. Paradise Valley Unified School District, 815 F.3d 1195, (9th Cir. 2016). That case arose out of a special education IEP context and evolved into a lawsuit for money damages under Section 504 and the ADA, based on the autistic student being denied equal opportunity/access to her educational program. The foundation of the lawsuit for money damages began with student’s placement in a “uniquely gifted program.” However, when the student’s behavior deteriorated and she destroyed school property, threatened self-harm, displayed physical aggression toward the SRO, and got suspended from school, an IEP team meeting was held to discuss the student’s functioning. The student’s IEP team agreed to change the student’s placement to the Roadrunner School, an alternative school operated by the district and designed for ED children. Student continued to have physically assaultive behavior in the new setting and two days into that placement, her assault on the SRO resulted in her arrest, transport to juvenile hall and subsequent placement at a private psychiatric school at district expense.
The discrimination-based claims related to Paradise Valley’s alleged failure to provide adequate accommodations, a functional behavior assessment, BIP, a full-time aide, and the IEP team’s decision to place Student at the Roadrunner School. The 9th Circuit considered the requirements to prevail on a claim for money damages under Section 504 and/or the ADA related to denying “access”. According to the 9th Circuit, separate and apart from student proving intentional discrimination by Paradise Valley, the student could alternatively prove actionable discrimination by showing Paradise Valley’s “deliberate indifference” to student’s protected access rights under Section 504 and/or ADA.
As the Court articulated, deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely and a failure to act upon that likelihood. (Duvall v. County of Kitsap (9th Cir. 2001) 260 F.3d 1124, 1139) Knowledge (or notice) is shown when a student alerts a public entity to his/her need for accommodation or where the need for accommodation is obvious or required by statute/regulation. Here, the fact that the student’s family asked Paradise Valley for a full-time behavioral aide and a teacher’s email described the student’s current level of support as inadequate, supported the 9th Circuit’s determination that those facts could support a finding that Paradise Valley was deliberately indifferent to student’s need for accommodations and hence potentially responsible for discrimination entitling the family to money damages. (Note: The Court’s decision uses the term “accommodations” in a manner that refers to accommodations as they are popularly construed as well as those matters commonly considered to be in the realm of placement and services.)
LEA Leaving Adequate Paper Trail to Combat Deliberate Indifference for Equal Access?
As an LEA, you probably already have processes and forms for Section 504-FAPE. Have your forms and processes however, been updated to address claims for equal access/equal opportunity under both Section 504 and the ADA, particularly as they relate to such items as extracurricular activities like sports or cheerleading? How about requests for service animals?
If a student with a disability makes a request for an accommodation or service, the request and response should be documented. In almost all cases where the student is eligible for an IEP, the IEP process can at least be used as an initial forum in which to address the concern. But what if the requested accommodation or request isn’t needed as a matter of FAPE for the IEP, yet the matter remains unresolved and the parent is alleging a violation of Section 504 and/or ADA?
Having a process in place and proper paperwork will allow LEAs to point to hard evidence showing the request, discussion, response, and possible provided accommodation/service in order to defend any potential allegations of intentional discrimination or deliberate indifference pertaining to Section 504 or ADA claims related access and discrimination. It’s about saying yes or no the right way!