What is the legal basis for having \"health plan\" called \"504\"?

Posted on: Sat, 01/27/2007 - 2:54pm
mira's picture
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Joined: 04/28/2004 - 09:00

I have run into a situation which several of you have as well. My son's school wants to give me accomodations but call it a "health plan." I told them that this is unacceptable. I am a lawyer and threw around all the language of 504 - to no avail. The meeting ended in a stale mate, with me refusing to entertain their health plan and them refusing to entertain my 504. Assuming both documents would contain the same information, how do I argue that my son's designation of being disabled requires them to call this document a 504? I have a feeling they will argue that they are giving him a FAPE in the LRE with the health plan and no 504 accomodations are needed. How do I counter that? Thanks for all input.

Posted on: Sat, 01/27/2007 - 10:09pm
smudgesgarden's picture
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Joined: 02/26/2006 - 09:00

i have no advice but am running into the same problem with my sons pre school. they say they will make arangments but will not do a 504. they say he cant have one in prek but i quoted them the subsection under 504 that says he can and they still say no. im at a loss...
erin

Posted on: Sun, 01/28/2007 - 12:48am
Greenlady's picture
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Joined: 06/30/2004 - 09:00

If a child is eligible for a 504, they (in theory) can't say no. Talking about an Individual Health Plan (IHP) is just a red herring - a lot of children have both. So it's not an either or situation.
So the first step is to make sure that the child's eligibility for 504 is crystal clear - there are lots of threads on what needs to be in the doctors letters - there are specific phrases that mirror the language of 504's that make it hard for a school to turn down.
Once eligibility is established (or if they are not following the process to either establish or deny eligibility), if they are not cooperating, then you can go to the Office of Civil Rights (OCR). Again, lots of threads on this!
Some people have had good luck with this path, others have found it so difficult that it wasn't worth the fight and they've gone to another school district.
Hope this helps you get started!

Posted on: Sun, 01/28/2007 - 1:03am
mommyofmatt's picture
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Joined: 03/12/2004 - 09:00

This thread might help.
[url="http://uumor.pair.com/nutalle2/peanutallergy/Forum7/HTML/002568.html"]http://uumor.pair.com/nutalle2/peanutallergy/Forum7/HTML/002568.html[/url]
There's also a recent thread called IHP vs. 504 in schools section. You might want to take a look at that.
Good luck! Meg

Posted on: Sun, 01/28/2007 - 2:13am
Momcat's picture
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Joined: 03/15/2005 - 09:00

I agree with Greenlady; the first order of business is to establish eligibility. Once that is taken care of, you can discuss what accommodations are necessary. In our case, the school wanted to put the accommodations under the heading of a "health plan", but on the 504 form under accommodations it says "see health plan". So I think it is ok to have both. In fact, many accommodations for PA should be part of a health plan, such as an allergic emergency action plan.
Cathy

Posted on: Sun, 01/28/2007 - 2:44am
Gail W's picture
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Joined: 12/06/2001 - 09:00

I also agree. You're concern at the moment is for your child to obtain a Section 504 Designation. Cart/horse.
Have you written a letter stating that your child has a life-threatening food allergy and are therefore requesting a Section 504 designation? State you'd like an Eligibility meeting scheduled within the next 2 weeks. Maybe even request copies of all the distict's forms and information related to Section 504, including a Section 504 manual if it exists, prior to your meeting.
Then, at the Eligibility meeting, stick to eligibility criteria and whether or not your child qualifies under the definition as stated under Section 504 law. Focus on the eligibility. You'll need to provide information from your child's allergist and lab testing if you have it. There are also tons of great links (including federal documents) stating that children with LTFAs qualify under Section 504.
So you'll provide them with overwhelming information that your child does indeed qualify, so turn the table around and insist that they prove your child does [i]not [/i]qualify.

Posted on: Sun, 01/28/2007 - 7:18am
mira's picture
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Joined: 04/28/2004 - 09:00

Thank you all so much! You have confirmed my theory that I first have to establish eligibility. When the principal denied my request, I did not pin her down as to her basis (does he not have a disability or does he have one but does not need accomodations). I sent a letter to the 504 officer yesterday requesting a determination as to whether he has a disability or not. The 504 officer and the 504 team already have a letter from my allergist saying that he had a life threatening reaction, and that it was respiratory. I just figured that when they saw that letter, eligibility would not be an issue. Silly me.

Posted on: Sun, 01/28/2007 - 8:35am
Momcat's picture
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Joined: 03/15/2005 - 09:00

Many educators are misinformed about 504 eligibility. Several times, I have been told that PA doesn't qualify because it doesn't affect "learning." Make sure you read the law and list the "major life activities" that are "substantially limited" (usually breathing, caring for oneself.) Learning is just one of the major life activities.
Substantially limits means
"Substantially limits
Means that the person is unable to perform, or significantly limited in the ability to perform, an activity as compared with an average person in the general population. Factors to be considered in determining whether an impairment substantially limits a major life activity are:
1. Its nature and severity
2. How long it will last or is expected to last, and
3. Its permanent or long-term impact, or expected impact. "
Quote:
(j) Handicapped person--(1) Handicapped persons means any person who
(i) has a physical or mental impairment which substantially limits one
or more major life activities, (ii) has a record of such an impairment,
or (iii) is regarded as having such an impairment.
(2) As used in paragraph (j)(1) of this section, the phrase:
(i) Physical or mental impairment means (A) any physiological
disorder or condition, cosmetic disfigurement, or anatomical loss
affecting one or more of the following body systems: neurological;
musculoskeletal; special sense organs; respiratory, including speech
organs; cardiovascular; reproductive, digestive, genito-urinary; hemic
and lymphatic; skin; and endocrine; or (B) any mental or psychological
disorder, such as mental retardation, organic brain syndrome, emotional
or mental illness, and specific learning disabilities.
[b](ii) Major life activities means functions such as caring for one's
self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. [/b]
(iii) Has a record of such an impairment means has a history of, or
has been misclassified as having, a mental or physical impairment that
substantially limits one or more major life activities.
(iv) Is regarded as having an impairment means (A) has a physical or
mental impairment that does not substantially limit major life
activities but that is treated by a recipient as constituting such a
limitation; (B) has a physical or mental impairment that substantially
limits major life activities only as a result of the attitudes of others
toward such impairment; or (C) has none of the impairments defined in
paragraph (j)(2)(i) of this section but is treated by a recipient as
having such an impairment.
(k) Qualified handicapped person means:
(1) With respect to employment, a handicapped person who, with
reasonable accommodation, can perform the essential functions of the job
in question;
(2) With respect to public preschool elementary, secondary, or adult
educational services, a handicappped person (i) of an age during which
nonhandicapped persons are provided such services, (ii) of any age
during which it is mandatory under state law to provide such services to
handicapped persons, or (iii) to whom a state is required to provide a
free appropriate public education under section 612 of the Education of
the Handicapped Act;

Posted on: Sun, 01/28/2007 - 2:47pm
Nutternomore's picture
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Joined: 08/02/2002 - 09:00

mira,
Good advice given above already...not much to add for now, but you may find some of the discussion linked here to be helpful as well:
[url="http://uumor.pair.com/nutalle2/peanutallergy/Forum7/HTML/001705.html"]http://uumor.pair.com/nutalle2/peanutallergy/Forum7/HTML/001705.html[/url]

Posted on: Sun, 01/28/2007 - 9:51pm
notnutty's picture
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Joined: 03/15/2004 - 09:00

All very good advice already...just wanted to add that some of the best advice I received was when the admin says "you don't need a 504 plan you are getting an IHP" you could say "are you saying my child is not eligible? I want to see the basis for the eligibility determination."
We are working on getting our IHP turned into a 504 for next year.

Posted on: Mon, 01/29/2007 - 1:55am
JRsMami's picture
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Joined: 08/08/2005 - 09:00

[b]All very good advice already...just wanted to add that some of the best advice I received was when the admin says "you don't need a 504 plan you are getting an IHP" you could say "are you saying my child is not eligible? I want to see the basis for the eligibility determination."
We are working on getting our IHP turned into a 504 for next year.[/b]
....or perhaps request the 504 in addition to the IHP. Since you need to make health accommodations but you also need to be assured he will have the FAPE- they will work well together.
But I think the initial task would be to put your request for a 504 evaluation in writing with a quick turn-around time (like Gail W suggests). At that point they have to legally give you a fair and formal evaluatation... with more than verbal pursuasion of denial. If you have trouble locating template letters in past threads, I can email your ours- it worked.

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