Disability Rights California’s Comments on Potential Amendments to the U.S. Department of Education’s Section 504 Regulations, 34 C.F.R. Part 104

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Disability Rights California’s Comments on Potential Amendments to the U.S. Department of Education’s Section 504 Regulations, 34 C.F.R. Part 104

Hon. Catherine E. Lhamon

Assistant Secretary for Civil Rights

U.S. Department of Education
Office for Civil Rights
400 Maryland Avenue, SW
Washington, D.C. 20202-1100

Re: Disability Rights California’s Comments on Potential Amendments to the U.S. Department of Education’s Section 504 Regulations, 34 C.F.R. Part 104

Dear Assistant Secretary Lhamon:

Disability Rights California (DRC) submits the following comments in response to the U.S. Department of Education’s request for public input on potential amendments to its Section 504 regulations. We appreciate the opportunity to suggest improvements to these important legal protections for students with disabilities.

DRC is the federally designated Protection and Advocacy agency for the state of California. Our mission is to defend, advance, and strengthen the rights and opportunities of people with disabilities. A significant portion of our legal advocacy is enforcing the disability civil rights of California students with disabilities at all levels of their education.

Below are DRC’s recommendations broken into three categories: (1) general provisions; (2) preschool, elementary and secondary education; and (3) postsecondary education. Please contact me if you would like to discuss our comments further. Our staff is more than willing to provide OCR with more detail or to connect its staff with our affected clients and community partners.

Andy Imparato
Executive Director



General Provisions

The U.S. Department of Education (“Department”) last amended its Section 504 regulations in July 2017 to implement Rosa’s Law, Pub. L. No. 111-256, 124 Stat. 2643 (2010), a statute that changed references to “mental retardation” in federal law to “intellectual disability” or “intellectual disabilities.” 82 Fed. Reg. 31910. DRC proposes the following similar language changes to further modernize the Department’s Section 504 regulations:

  • “Handicap” to “disability”
  • “Handicapped persons” to “individuals with disabilities”
  • “Education for all Handicapped Children Act” to the “Individuals with Disabilities Education Act”

Preschool, Elementary, and Secondary Education

The Department should strengthen its “educational setting” regulation to better promote the inclusion of students with disabilities in the regular educational environment.

The Section 504 regulation pertaining to the placement of students with disabilities in the least restrictive environment, 34 C.F.R. § 104.34, currently states:

(a) Academic setting. A recipient to which this subpart applies shall educate, or shall provide for the education of, each qualified handicapped person in its jurisdiction with persons who are not handicapped to the maximum extent appropriate to the needs of the handicapped person. A recipient shall place a handicapped person in the regular educational environment operated by the recipient unless it is demonstrated by the recipient that the education of the person in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. Whenever a recipient places a person in a setting other than the regular educational environment pursuant to this paragraph, it shall take into account the proximity of the alternate setting to the person's home. (Emphasis added.)

Unfortunately, DRC has seen many public school districts move quickly to remove students from general education classrooms without first providing them with needed supports and services in the general education setting. DRC has worked with students whose initial IEPs placed them in special education classes and even segregated settings like non-public schools—meaning that the student, upon receiving an IEP, was immediately placed in a segregated setting. Students with behavioral challenges are removed to segregated settings especially quickly.

We propose the Department amend 34 C.F.R. § 104.34 to more strongly promote inclusion and require districts to always place students with disabilities in a regular education environment, with the use of supplementary aids and services, before placing the student in a segregated setting. Then, in order to place a student in a segregated setting, the district must demonstrate that education of the student in the regular environment with the use of supplementary aids and services cannot be achieved satisfactorily. To do so, districts should be required to provide a written record of specific reasons and supporting documentation showing that:

  • Education in the regular environment, with supplementary supports and services, was attempted but not achieved satisfactorily;
  • The required supports and services that would be provided in the segregated setting cannot be provided in the regular education environment; and
  • The student’s individual needs require a segregated setting.

The Department should codify important discipline procedural safeguards, including the right to manifestation determinations reviews.

When recipients subject students with disabilities to exclusionary discipline on the basis of behaviors that are a manifestation of their disability, they are perpetuating the type of discrimination that the regulations were designed to protect against.

The regulations are currently completely silent on manifestation determination reviews (“MDRs”)—the purpose, who should make up an MDR team, what the MDR team should review and analyze, the appeal process, etc. While OCR and the courts have interpreted the regulations to include the right to an MDR and certain protections during the process, the lack of clarity in the regulations means that many students do not receive these rights in practice. Codifying the rights that OCR and the courts already recognize, as well as expanding these rights where necessary, will help to ensure that students do not face exclusion and discrimination for behaviors caused by their disability. Below are suggested additions to the regulations.

Codify the Right to an MDR for All Changes in Placement

In its Memorandum entitled, “Long-term Suspension or Expulsion of Handicapped Students,” issued on October 28, 1988, OCR interpreted 34 C.F.R. § 104.35(a) to require a reevaluation prior to a suspension that constitutes a “significant change in placement.” 16 IDELR 491. While that regulation is silent on what constitutes a significant change in placement, OCR interprets removals for more than ten days to be significant and therefore require an MDR. Id.

Despite the clarification issued in this nearly 34-year-old memorandum, students with disabilities continue to face exclusionary discipline for their disability-related behaviors that amounts to more than ten days over the course of the school year.

For example, in our work in California, school districts subject students with disabilities to classroom removals for behaviors as benign as use of profanity or disrupting the classroom. Specifically, in Antelope Valley Union High School District (“AVUHSD”), students are given “off-the-books” suspensions or in-school suspensions that are tagged as “counseling” or “PBIS conferences.” Because AVUHSD does not correctly identify these suspensions as such, it excludes students with disabilities from their classrooms for more than ten days while denying their right to an MDR. Even where these exclusions amount to less than ten days, they still significantly disrupt the student’s academic progress and sense of belonging in the classroom.

For these reasons, we recommend that OCR make changes to the regulations at 34 C.F.R. § 104.35(a) to specify that, for a student who has been identified as having a disability, an MDR must be held every time that student is suspended. Further, we recommend that the regulation specify that any removal of a student from their educational program constitutes a removal towards the ten days, and that an MDR must be held when a change in placement occurs.

Explicitly Name and Identify the Purpose of an MDR

Where the IDEA regulations at 34 C.F.R. § 300.530(e)(1) explicitly name and identify the purpose of an MDR, the Department’s 504 regulations are silent. See 34 C.F.R. §§ 104.31-104.39. The regulations at 34 C.F.R. § 104.35(a) require a recipient to evaluate any person who, because of a disability, needs or is believed to need special education or related services before taking any action to initially place the person in a regular or special education program, and before making any subsequent significant change in placement. Courts and OCR generally interpret this language to define the purpose of holding an MDR as determining whether a student’s behavior was caused by or related to their disability. However, the absence of specific language can lead to inconsistent interpretations.

We recommend that OCR promulgate a regulation that specifies that the purpose of an MDR is to determine whether: 1) a student's misconduct was caused by, or had a direct and substantial relationship to, the child's disability; or 2) the misconduct in question was the direct result of the district's failure to implement the 504 plan.

Codify MDR Team Members and Assessment Procedures

Although the existing Section 504 regulations do not specify MDR procedural protections, the regulations at 34 C.F.R. § 104.35(c) require that placement decisions are made by a group of persons, including persons knowledgeable about the child, the meaning of the evaluation data, and the placement options. Additionally, courts have held that, “before a [disabled] student can be expelled, a trained and knowledgeable group of persons must determine whether the student's misconduct bears a relationship to his handicapping condition.” S-1 v. Turlington, 635 F.2d 342, 350 (5th Cir. 1981), cert denied, 454 U.S. 1030 (1981).

OCR has clarified that, when viewed together, the current regulation and case law create a requirement for “knowledgeable” MDR team members. OCR Staff Memorandum, 16 IDELR 491 (1989). Similarly, the existing regulations and case law informed OCR’s interpretation that MDR assessments must use “information that competent professionals would require, such as psychological evaluation data related to behavior, and the relevant information must be recent enough to afford an understanding of the child's current behavior.” Id.

Despite OCR’s clarification of MDR team members and assessment procedures, students continue to experience varying MDR procedures. For instance, DRC attorneys have represented Section 504 eligible students in MDRs across California where the MDR team included only the school principal or only a school psychologist unfamiliar with the student.

To avoid confusion and create uniformity, we recommend OCR make changes to the regulations at 34 C.F.R. § 104.35(a) to specify that the procedures outlined in subsection (b) also apply to MDRs. In other words, the MDR team must include people knowledgeable about the student—including the parent—the meaning of the evaluation data and the placement options. In addition, the MDR team must consider a broad range of data to afford an understanding of the student's behavior, such as any assessments, any teacher observations, any relevant information provided by the parents, and any other relevant information in the student’s file.

Introduce a Stay-Put Provision

The IDEA regulations require school districts to ensure a student’s continuation of their current placement pending resolution of a dispute over the results of an MDR. 34 C.F.R. § 300.530(d)(i). However, the Section 504 regulations do not contain a parallel requirement. This can result in vital loss of instruction and continuity for students with disabilities.

For these reasons, we recommend that OCR introduce a provision granting students the right to stay put in their current placement pending the resolution of the dispute over the results of the MDR.

Codify Specific Actions a 504 Team Must Take Once it Reaches an MDR Determination

The IDEA regulations state that if a student’s behavior was a manifestation of their disability, the IEP team must return the student to the placement from which they were removed, conduct a behavioral assessment for the student, and review and revise the student’s Behavior Intervention Plan, as necessary. 34 C.F.R. § 300.530(f). This requirement encourages schools to address student behavior proactively by providing needed supports to prevent the recurrence of the behaviors that led to discipline.

The Section 504 regulations, however, do not contain a parallel requirement. Thus, we recommend that OCR amend the regulations to require that if a student’s behavior was a manifestation of their disability, then the 504 team must return the student to the placement from which they were removed, conduct a behavioral assessment for the student, and review and revise the student’s Positive Behavior Plan, as necessary.

The IDEA regulations also require that if a student’s behavior was not a manifestation of their disability then the student can be subject to discipline, but the district must provide them with behavior assessments and intervention services, as appropriate. 34 C.F.R. § 300.530(d)(i). Similarly, we recommend that OCR add a regulation requiring that if the MDR team determines that the student's misconduct was not related to their disability, the student may be subject to the same disciplinary sanctions as a student without a disability, but the student must receive a behavioral assessment.

Codify an Appeal Process Specific to MDR Decisions

The IDEA regulations state that parents who disagree with an MDR decision may appeal that decision to the state’s administrative hearings office, and the student is entitled to an expedited due process hearing. 34 C.F.R. § 300.532. This ensures parents the right to review of an MDR team’s decision by an impartial and independent agency. By contrast, the Section 504 regulations require districts to create a “grievance process,” but this process need not be through an independent agency. Nor does the process need to be expedited for appeals of MDR team decisions.

Because of the latitude the Department’s regulations provide, in California, most school districts choose to oversee their own Section 504 grievance processes. They typically codify these processes in their school board policies and administrative regulations. See, e.g., East Side Union High School District, Administrative Regulation 6164.6 (Mar. 23, 2017), https://go.boarddocs.com/ca/esuhsd/Board.nsf/Public?open&id=86PT4C59EF6….

DRC believes that parents rarely access this process, possibly in part due to their perception that the process is not impartial. For these reasons, we recommend that OCR amend the regulations to specify that the parent of a child with a disability who disagrees with an MDR decision may appeal the decision by requesting a hearing. The hearing must be held by an impartial and independent agency and provide opportunity for parental participation and representation by counsel. For detailed DRC recommendations regarding the Section 504 grievance process, see Section II.d., infra.

vii. Codify the Right to Record During an MDR

Under the IDEA regulations, parents may record IEP meetings, including MDR meetings, to the extent permitted by state law and the district. Letter to Anonymous, 40 IDELR 70 (OSEP 2003). In California, parents have the right to record IEP meetings, but not 504 plan meetings. See Cal. Educ. Code § 56441.1(g). Several school districts have denied DRC attorneys’ requests to record 504 plan meetings, even with advance notice provided.

The right to record is a critical procedural protection, particularly for MDR meetings, because the recordings can serve as evidence at due process hearings. Thus, we recommend that OCR amend the regulations to grant parents the right to record 504 plan meetings, including an MDR.

The Department should codify procedural safeguards for 504 plans that align with IDEA protections for IEPs, including the requirements to draft a written document, meet annually, and provide copies of the plan to all staff.

Generally, a Section 504 Plan describes the regular or special education and related aids and services a student needs and the appropriate setting in which to receive those services.1 Despite the crucial importance of 504 plans in practice to ensuring students with disabilities receive meaningful access to their education, the Department’s regulations do not explicitly require them. The Department’s new regulations must emphasize the importance of 504 plans to qualified students with disabilities and codify similar procedural protections that are available to students with IEPs. This includes, at a minimum, requiring a written 504 plan, parental consent to implement the plan, and at least annual review of the plan.

The IDEA regulations further require school districts to ensure that a student’s IEP is accessible to each regular education teacher, special education teacher, related service providers, and any other service provider who is responsible for its implementation. 34 C.F.R. § 300.323(d)(1). The Section 504 regulations, however, do not contain a parallel requirement as to Section 504 plans. 34 C.F.R. § 104.31-104.39. In our work across California, we have seen situations where students do not receive the accommodations required in their Section 504 plan because the district did not provide copies of their plan to the staff responsible for its implementation. Similarly, we have heard from teachers that they do not always receive copies of their students’ Section 504 plans.

A parent of a recent high school graduate and former DRC client shares:

When we knew my son would have to have a total colectomy, it was in the middle of his Freshman year. Aside from the surgical, medical, and mental fears, school was another stressor, and we weren’t sure how all of this would impact him. During the year, we had so many challenges with teachers not accommodating and/or implementing his 504 needs. We came to find out that they had no idea he even had a 504. As my son’s mom and caretaker, the last thing I wanted to worry about was explaining what was going on, but I had to, because his teachers were unaware of what was going on. Had they known, it would have prevented stress on my son, and myself. He could have spent time focusing on healing had there been a plan in place academically with each teacher.

We recommend that OCR add a regulation that requires school districts to ensure that a student’s 504 plan is accessible to each teacher, service provider, and any other staff who are responsible for its implementation. This regulation would prevent disability discrimination in many situations and greatly increase the number of students receiving all of the accommodations required in their Section 504 plan.

The Regulations’ dispute resolution procedures should include the right to adequate notice and fair hearing.

The right to due process is well-established in the context of public education afforded to students with disabilities. Under the IDEA, the right is spelled out in detail asserting strong safeguards that protect the fairness and accessibility of the process. 20 U.S.C. § 1415(f)(1)(B). The Section 504 regulations also recognize the right at 34 C.F.R. § 104.36. However, neither Section 504 nor its regulations offer specificity as to the multiple aspects of a fair hearing process to which a student with a disability or his/her parent may be entitled. As such, in practice, fair hearings under Section 504 have been historically inaccessible and rare. There is, therefore, an urgent need for regulatory action to clarify the right to due process under Section 504.

As explained below, new regulations ensuring adequate notice and a truly independent and readily accessible adjudicatory fair hearing system will serve to materialize the goals and protections of Section 504 for millions of students and their parents who rely on this great law in order to obtain an equal public education.

Adequate Notice of Due Process Rights

Our decades-long experience informs us that parents whose children qualify under Section 504 are seldom informed by the covered entities about the right to bring a challenge, the grounds for a due process challenge, the timeline for initiating the challenge and the procedural safeguards and expectations that would accompany a request for a hearing. We see a real need for new regulation mandating school districts and all other covered educational agencies affirmatively provide clear and prior written notice to parents of the right to a fair hearing and its procedures at various legal events including initial eligibility, all subsequent Section 504 meetings, and anytime the covered entity plans to take or refuses to take an action as specified in 34 C.F.R. § 104.36.

We believe IDEA’s provision at 34 C.F.R. § 300.503 presents a reasonable set of safeguards about the content of a prior written notice and the requirements pertaining to the notice. We ask OCR to adopt the IDEA’s provision or establish a similar rule that would guarantee full information to parents about the right to a fair hearing and the resources available that could assist parents in advocating at such administrative tribunals.

Impartial and Independent Evidentiary Hearing

The long-recognized principles of fairness demand that a hearing provide an opportunity for a fair and unbiased review of the disputes between the parties and evidentiary underpinnings of those disputes by an impartial and independent officer who is knowledgeable about Section 504 and its legal scope and reach.

Presently, Section 504 regulations do not offer the specificity that would guarantee the fundamental fairness of these hearings. By contrast, the IDEA has, since its inception, provided a clear and unambiguous set of protections for due process hearings. 20 U.S.C. § 1415(f)(3)(F). We propose new rules that extend those important and precious protections to students eligible for Section 504. The new regulations should, at a minimum, completely liberate the hearing system under Section 504 from the control of the entity with whom the parent or student is in dispute. A separate, statewide and uniform system, established and managed by a designated state agency, employing trained and knowledgeable administrative judges and officers, would offer the essential guarantees.

That system presently exists under the IDEA and provides a solid model. 34 C.F.R. § 300.511. The IDEA regulations at 34 C.F.R. §§ 300.507 through 300.513 provide a detailed list of safeguards and requirements governing the various aspects of due process. We propose adopting the IDEA’s or substantially similar requirements. The requirements must, at a minimum:

  • Specify the timeline and the manner of requesting the hearing and its completion including the requirement to maintain an official audio recording of the hearing;
  • Clarify the right to a written decision within a specified period of time, and the right to appeal an adverse decision;
  • Ensure the hearing officers are qualified and truly independent; and
  • Be accompanied by counsel or a knowledgeable advocate, afford the basic evidentiary rights to present all reliable evidence, call witnesses, and conduct cross-examination.

The Department’s regulations should encourage integrated school facilities and prohibit the use of portable classrooms and other segregated facilities for students with disabilities.

The existing Section 504 regulations require that where districts create separate facilities for youth with disabilities, those facilities are “comparable” to those created for nondisabled students. 34 C.F.R. § 104.34(c). Courts interpret this regulation to require that portable or trailer classrooms are comparable in “size, sanitation, ventilation, noise level, and furnishings” to traditional classrooms. See Hendricks v. Gilhool, 709 F. Supp. 1362, 1365 (E.D. Pa. 1989). However, so long as these requirements are met, the regulations permit districts to exclusively locate special day classrooms in portable or trailer classrooms, physically separated from the main campus.

In our work across California, we have seen that many districts maintain a policy or practice of separating students with disabilities from their peers by locating special day classrooms exclusively in portable or trailer rooms, physically separated from the main campus buildings. For instance, in Antelope Valley Union High School District (“AVUHSD”), virtually all special day classrooms are located in portable rooms, separated from the main campus. These practices stigmatize youth with disabilities, send the message that they are not part of the campus community, and prevent youth with disabilities from meaningfully interacting with nondisabled peers.

We recommend that OCR add a regulation prohibiting districts from exclusively locating special education classrooms in portable or trailer classrooms. The regulation should encourage districts to locate special day classrooms in the main campus and permit them to locate special day classrooms in portables only if necessary to provide FAPE.

PostSecondary Education

The Department should require postsecondary institutions to provide notice to new students about their rights to academic adjustments and auxiliary aids and services.

It is common for students with disabilities to begin their higher education journey unaware that the laws pertaining to disability rights in higher education are different from those that apply in K-12. Specifically, students frequently do not know that the burden is on them to identify themselves to the school as having a disability and that the right to academic adjustments begins with their request.

The Department already requires schools with more than 15 employees to designate a Section 504 coordinator, adopt a grievance procedure, and provide notice of their nondiscrimination policy. 34 C.F.R. §§ 104.7, 104.8. It should revise these regulations to require that postsecondary institutions send information about disabled student services and the process for requesting academic adjustments and auxiliary aids and services with their admission and orientation materials.

Providing this information to students before the school year begins will help students transition from secondary school to the postsecondary environment with minimal interruption to their disability-related needs. And it will provide them with more time to secure auxiliary aids and services from Departments of Rehabilitation or other agencies if the school is unable or unwilling to provide them.

The Department should require higher ed institutions to cover the cost of mandated testing as a component of the reasonable accommodation process.

When a disabled student services office determines that a student’s K-12 records are insufficient to support a requested accommodation, the office may require the student to undergo testing to determine whether the requested accommodation is necessary based on their disability. The costs associated with those tests can be burdensome for a student, creating a barrier to accessing the accommodations they need to succeed academically. One student reported to DRC that the primary activity of her school’s disabled student organization was fundraising to cover the cost of tests the school required but would not pay for.

An academic institution will almost always be in a better position to manage the financial cost of testing than an individual student with disabilities. Schools are already required to cover the cost of accommodations and auxiliary aids and services as long as the cost is not unduly burdensome. If a school mandates testing as a requirement for obtaining an accommodation, then the school should be required to cover the cost of that testing.

The Department should promulgate more detailed regulations on academic adjustments and the interactive process.

Lack of guidance from the Department on the interactive process in higher education has resulted in vastly inconsistent processes and outcomes. (Reflecting on their experiences at different colleges, one disabled student told DRC: “It’s hard to believe they’re all operating under the same law.”) The Department should promulgate regulations that address the most common issues that arise in the interactive process, including:

  • Availability of accommodations. Students are often unaware of what accommodations are possible or available, and schools may not provide them unless the student specifically requests them. The regulations should clarify that the school has an obligation during the interactive process to help a student identify what accommodations will meet their needs if the student does not already know.
  • Documentation. There is uncertainty about when a school can require third party verification of a disability or disability-related need for an accommodation and what forms of verification are sufficient.
  • Reasoned decision-making for denials. The regulations on academic adjustments at 34 C.F.R. § 104.44 contemplate changes to academic programs that, in practice, many academic programs reject as a per se fundamental alteration or undue burden. (One student reported to DRC that when she requested an accommodation for an exam, the department head was proud to inform her that they uphold the quality of their program by never granting accommodations.) DSS offices tend to defer to course instructors without conducting any investigation into whether the instructor’s refusal to make academic adjustments is based on sound reasoning. This has even occurred for accommodations that the regulations specifically support, like the use of tape-recorders in the classroom. At many schools, meeting the high legal standard of fundamental alternation or undue burden has become a mere rubber-stamp process. To ensure that schools are meeting their obligations to provide academic adjustments whenever feasible and appropriate, the Department should require that when a school denies a requested accommodation, it issue a written decision to the student detailing its analysis of the request. If the grounds for denial is fundamental alteration or undue burden, the decision should be made by the head of the institution or their designee after considering all resources available for use in the funding and operation of the service, program, or activity, and should be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the school should be required to take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that students with disabilities receive equal access. See 28 C.F.R. § 35.150(a)(3).

The Department should promulgate regulations clarifying the scope of an institution’s obligation to provide auxiliary aids and services.

The FAQs on auxiliary aids and services on the ED website say that institutions are responsible for providing auxiliary aids and services to students who need them to fill out financial aid forms, student employment applications, and other necessary paperwork. It also says that if the student’s eligibility for auxiliary aids and services is pending, the school must provide aids and services in the interim.

We agree with this interpretation of the regulations, but note that these requirements are not explicitly in the text of the regulations. The Department should make its interpretation of the auxiliary aids and services requirement explicit in the regulations. It should also provide further guidance on what circumstances fall within the “personal use or study” exemption under 34 C.F.R. § 104.44(d)(2), as it is a source of uncertainty.

The Department should promulgate regulations clarifying that a student may not be dismissed from an academic institution for posing a direct threat to themselves.

As applied to higher education, the direct threat analysis is unclear, even when compared to parallel ADA regulations. Title I of the ADA allows an employer to take adverse action against an employee with a disability who poses a direct threat to themselves or others, whereas Title II’s language on direct threat mentions only threats to others, not threats to self. The Department should provide clarification that, as applied to higher education, a student’s direct threat to themselves cannot be the basis for dismissal from the school.

The Department should promulgate regulations clarifying that institutions have an obligation to ensure that their program as a whole is accessible to people with disabilities.

Some institutions are under the mistaken impression that, if they comply with technical regulations, such as the ADA Standards for architectural access, that is all they need to do to provide access for students with physical disabilities. However, in many cases, more is needed to ensure equal access. For example, the traditional higher education campus layout often requires students to travel long distances from campus entry points to locations where classes and other student services are offered. The regulations should clarify that institutions that choose such a layout must take reasonable steps to provide access to students who have difficulty walking such distances, such as moving classes or services, providing an on-campus shuttle, or allowing students to park near buildings that have services.