Jul 29, 2013
The Office for Civil Rights (OCR) determined that a Charter School in Colorado should have noticed when a student with cerebral palsy suddenly began using a wheelchair and should have evaluated her eligibility for a 504 plan. Aurora (CO) Public Schools 61 IDELR 83 (OCR Jan. 14, 2013), involved a student with cerebral palsy who attended a district Charter School. In January 2010, she began having difficulty climbing stairs and standing for long periods and started to use a wheelchair. Previously, she had not consistently used a wheelchair. Her mother and members of the Charter School staff met to discuss her use of the wheelchair and how to help her with it. The parent did not request a 504 evaluation and the school did not conduct one. Later, the mother filed a complaint with OCR alleging the Charter School should have initiated an evaluation. The Charter School responded by saying that: (1) the parent had not requested a 504 evaluation, and (2) the student was performing well academically, and thus, was not eligible for 504.
The OCR investigation found that, in fact, the Charter School had not evaluated the student for a suspected disability and the School did not have a designated 504/ Americans with Disabilities Act (ADA) Coordinator or a grievance process that complied with the 504/ADA requirements. Moreover, OCR noted that: (1) the School had an affirmative duty to identify and locate every qualified student with a disability and the School may not require a parent to request an evaluation, and (2) the fact the student is performing well academically did not exclude her from 504 eligibility. Under 504, a student is eligible if she has a physical or mental impairment that substantially limits one or more major life activities, including functions such as caring for one’s self, performing manual tasks, walking seeing, hearing, learning, and breathing. The OCR specifically noted that “Although the School’s primary purpose is education, its obligation to follow Section 504 and Title II regarding its provision of services to students and others using School programs is not limited to disabilities that affect academic performance.”
The Charter School’s Colorado school district signed a resolution agreement to comply with section 504 and the ADA. In the resolution agreement the school district agreed, among other things, to convene a team meeting to determine the student’s 504 eligibility, publish on the Charter School’s website and in the parent handbook new 504 policy and procedures for identifying and providing services to students (including grievance procedures and designating a 504/ADA coordinator, submit the new policies to OCR for approval, and provide training to all Charter School staff on the requirements of 504 and Title II of the ADA.
There are a couple of interesting points about this decision. First, it’s unfortunate, but not unusual, for schools to fail to understand that eligibility for 504 services does not turn solely on a student having an impairment that substantially limits the major life activity of learning. A student may be performing very well academically and still need supports such as access to insulin injections, rest periods, a modified class schedule, a sign language interpreter, a note taker or access to a tape recorder, or Brailed or large print materials. Second, note that while it was the Charter School that violated 504, the school district responsible for the Charter School signed the resolution agreement with OCR and is responsible for ensuring compliance with the agreement. The school district approved the charter for the Charter School and is responsible for ensuring the Charter School’s compliance with federal law the same as any other district school.
