May 22, 2022

Volume XII, Number 142

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May 20, 2022

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504 Regulations Will Be Amended: Get Your Comments In

The U.S. Department of Education made a recent announcement that it intends to strengthen and protect rights for students with disabilities by amending the regulations implementing Section 504 of the Rehabilitation Act of 1973 (“Section 504”), the Federal law that prohibits discrimination on the basis of disability in public and private programs and activities that receive federal financial assistance, including schools. 

After stating the Department’s Office of Civil Rights (“OCR”) will solicit public comments on how to improve Section 504, the announcement refers to May being Mental Health Awareness Month, President Biden’s Unity Agenda including a strategy to address the national mental health crisis, and that the input OCR will solicit and listen to “will include input from those people with disabilities who also have mental health needs and their advocates.” Based on the language of the announcement, it appears as if the primary focus of potential Section 504 amendments will be on issues concerning mental health and the mental health crisis. 

OCR’s announcement seeking input on potential amendments also follows two recent events concerning implementation of Section 504. First, as mentioned in the announcement, on April 28, 2022, OCR published a resolution agreement finding the second largest school district in the country failed to provide FAPE to students under IDEA and Section 504 during remote learning by: (1) limiting the services that were provided to qualified students with disabilities based on considerations other than their individual needs; (2) not accurately or sufficiently tracking accommodations and services provided to students with disabilities; and (3) failing to develop and implement plans to adequately remedy instances in which FAPE was not provided to eligible students with disabilities. Second, on April 28, 2022, the United States Supreme Court issued its decision in Cummings v. Premier Rehab Keller PLLC, S. Ct. No. 20-219, holding that Section 504 does not permit awards of damages for emotional distress. 

As input on potential amendments to the Section 504 regulations is not limited to issues concerning mental health, there are many issues that might be raised during this process. For example, one issue that has troubled districts for years is what regulations not found in Section 504, but are found in IDEA, must be followed in the Section 504 context, e.g. Manifestation Determination Reviews, obtaining surrogate parents when necessary. Therefore, districts should consider if they want to provide input regarding their struggles with Section 504 regulations and what amendments they would find helpful. 

©2022 Roetzel & AndressNational Law Review, Volume XII, Number 130
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About this Author

David S. Hirt Education Attorney Roetzel Andress Law Firm Cleveland
Shareholder

David represents Ohio school districts and municipalities on a wide variety of issues.

His education law practice includes counseling school administrators, boards of education, and governing bodies on personnel issues, including FMLA and ADA compliance; all aspects of employee discipline, including pre-disciplinary hearings, grievances, and arbitration; policy and regulation revision; and collective bargaining. David also advises school administrators on pupil issues, including student discipline, special education, and issues surrounding...

216-329-0558
Adrienne B. Kirshner Education Attorney Roetzel & Andress Cleveland
Of Counsel

Adrienne focuses her practice on education law, providing guidance to schools on matters relating to the education of students with disabilities, including the evaluation of students with suspected disabilities and issues concerning compliance with Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities Act (IDEA). Adrienne reviews IEPs and ETRs for legal compliance, attends IEP and ETR team meeting when warranted, and handles all aspects of litigation concerning student matters. Adrienne also advises school districts regarding compliance with...

216-456-3850
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