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ARIZONA DEPARTMENT OF CORRECTIONS
DIRECTOR'S OFFICE
MEMORANDUM
| TO: | Distribution |
| FROM: | Dora Schriro, Director |
| DATE: | March 12, 2008 |
| SUBJECT: | Director's Instruction #260, Education Program’s Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (ADA) of 1990 |
This Director's Instruction is effective immediately and shall remain in effect until incorporated into the appropriate Department Order 910, Inmate Education and Resource Center Services.
This Director’s Instruction is to be read, understood and complied with by all Education and Administrative Staff, Health Services Personnel, Psychologists, Counselors and all others including volunteers involved with the Arizona Department of Corrections (ADC) education process.
PURPOSE
This Director’s Instruction comprises the policies and procedures for ADC Work Force Development (WFD)/Education Program, Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (ADA) of 1990. The Department’s Education Program shall arrange for the provision of services and activities such that inmate students with disabilities participate equitably with non-disabled inmate students to the maximum extent appropriate in education programs (Mandatory Literacy, GED or WBE). Any education facility that the Department operates for inmate students with disabilities shall be comparable to facilities, services and activities provided for non-disabled inmate students and shall ensure equal access.
The purpose of this Director’s Instruction is to ensure no otherwise qualified handicapped person shall, on the basis of handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under any program or activity which receives Federal financial assistance. (29 U.S.C. 794 {as amended, 1992}).
1. QUALIFICATIONS FOR SECTION 504 INMATE STUDENTS WITH DISABILITIES1.1 Under Section 504 of the Rehabilitation Act of 1973, an inmate student may be considered disabled if the individual: (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.
1.2 Inmate students 21 years of age and younger with disabilities are entitled to a Free Appropriate Public Education (FAPE) under Section 504 and Title II of ADA of 1990.1.2.1 FAPE is a requirement designed to meet the individual educational needs of persons 21 years of age or younger with a disability as adequately as the needs of the persons without disabilities and is based upon adherence to evaluation, placement and Procedural Safeguard Requirements from the Individuals with Disabilities Education Improvement Act 2004 (IDEA 2004) in accordance with Section 504 Regulations (34 C.F.R.104.33).
1.2.2 Inmate students who have received a regular high school diploma and are 21 years of age and younger and have disabilities are considered to be postsecondary students and are no longer entitled to FAPE.
1.3 Inmate students 22 years of age and older or postsecondary with disabilities who have received a high school diploma are entitled to Section 504 and Title II of ADA.
1.4 To qualify for the entitlements, the inmate student must participate in the Section 504 identification process as outlined in this Director’s Instruction.Exceptions to Qualifications:
1.5 An inmate student or the parent/guardian of a minor (under age 18) may elect not to participate in the Section 504 identification process.
1.6 The Department is not required to permit an inmate to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations if that inmate poses a direct threat to the health or safety of others. See Title II of ADA: 28 C.F.R.§35.104 as it incorporates 28 C.F.R.§ 36.208.
2. SECTION 504 WFD/EDUCATION STAFF ASSIGNMENTS
2.1 The Correctional Education Program Manager (CEPM) or Correctional Education Program Supervisor (CEPS) shall ensure Section 504 compliance, as well as confidentiality of documentation and file maintenance in accordance with this Director’s Instruction.
2.2 A statewide 504/ADA Education Coordinator will be appointed by Education Administrator to be responsible for ensuring compliance with Section 504 of the Rehabilitation Act of l973 and Title II of ADA as they relate to education.
2.3 The Section 504 Complex Designee (Designee) will be appointed by the CEPM and/or CEPS. The Designee shall be knowledgeable of the statutes and regulations under Section 504 of the Rehabilitation Act of 1973 and Title II of the ADA and/or IDEA 2004. The Designee will monitor and serve as a consultant for the Section 504 identification process.
2.4 The Section 504 Committee (Committee)shall be comprised of at a minimum the Correctional Education Program Teacher (CEPT) of record and the inmate student and/or parent guardian of a minor student however; it may include CEPS, CEPM, 504/ADA Education Coordinator, Special Education Coordinator, Education Program Administrator or Education Administrator.
2.4.1 The Committee is responsible for determining inmate student eligibility for Section 504 accommodations as well as the development of each eligible inmate student’s Section 504 Accommodation Plan (Accommodation Plan).
2.4.2 Other individuals may be consulted who are knowledgeable of the inmate student but they will not be considered part of the committee, e.g. correctional staff, counselor, psychologist, medical personnel or subject matter experts.
3. SECTION 504 IDENTIFICATION
3.1 SCREENING AND INITIAL REFERRAL PROCESS
3.1.1 All inmate students qualified for FAPE shall be screened within ten work days of enrolling in any adult education program by the CEPT utilizing the screening forms (Student Screening Report, Inmate Education/Section 504 Background Assessment and the Section 504 Policy Notice).
3.1.2 All postsecondary and 22 years of age and older inmate students must receive the Section 504 Policy Notice within ten work days of enrolling in any adult education program by the CEPT or Designee.
3.1.2.1 Further screening is only required if the inmate student self-identifies a physical or mental impairment that substantially limits learning and who may qualify for an Accommodation Plan.
3.1.3 Upon completion and review of the screening forms by the CEPT and as evidenced by assessment tools [i.e. Test of Adult Basic Education (TABE), previous special education records, aptitude test], classroom observations and work samples, the CEPT shall complete a Section 504 Pre-Referral form (herein referred to as a Pre-Referral form) when warranted and submit it to the Designee.
3.1.3.1 The potential disability identified in the Pre-Referral form may be based on the inmate’s self-reporting, referral from other department personnel, and/or inmate records (e.g. education, health, medical, court or other available records).
on a voluntary basis. If an inmate refuses to provide information and/or participate, the inmate student will not be considered for 504 accommodations.3.1.3.2 Any information requested to determine eligibility under Section 504 is
3.1.3.2.1 The inmate student or the parent/guardian of a minor may invoke their rights to self-identify at any time, even after their decision to withdraw from receiving accommodations under Section 504. In such a case, a new Pre-Referral form will be initiated by the CEPT.
3.1.4 The Designee shall provide a copy of the IDEA 2004 Procedural Safeguard Requirements to inmate students entitled to FAPE or to the parent/legal guardian of a minor inmate student. The Department may act in loco parentis (in place of the parent).
3.2 EVALUATION PROCESS
3.2.1 The Committee shall convene within ten work days from receipt of the Pre-referral forms along with associated data for review and preparation of a Section 504 Evaluation Report (herein referred to as Evaluation Report).
3.2.2 The Evaluation Report documents the criterion for identifying the suspected disability. This criterion may include, but is not limited to:
3.2.2.1 Medical records
3.2.2.1.1 including the potential existence of disabilities and possible Section 504 protection for students diagnosed as having HIV, Tourette's syndrome, attention deficit hyperactive disorder (ADHD), heart malfunctions, communicable diseases, urinary conditions, blood disorders, chronic fatigue syndrome, school phobia, respiratory conditions, blood/sugar disorders, post traumatic disorders, pregnancy (with health issues that affect ability to learn), epilepsy, cancer, repetitive motion syndrome, birth defects, tuberculosis or other medical conditions
3.2.2.2 Teacher or other staff observations
3.2.2.3 Results of standardized tests or other educational records
3.2.2.4 Speech evaluations
3.2.2.5 Psychological reports
3.2.3 If the Committee determines additional data/assessment is needed for an inmate student, consent to evaluate using the Notice for Initial Evaluation form (Initial Evaluation) will be obtained and signed by the inmate student or, if appropriate, the parent/guardian of a minor inmate student.
3.2.4 The Department does not need a consent from the parent/guardian of a minor inmate student:
3.2.4.1 If the Department cannot, despite reasonable efforts, establish contact with the minor’s parent/guardian;
3.2.4.2 The rights of the parent/guardian have been terminated in accordance with State law;
3.2.4.3 A judge has assigned the right to an individual other than the parent/guardian for educational decisions and consent for an initial evaluation.
3.2.5 Within 30 calendar days of the signed Initial Evaluation form, the Committee will convene to complete an Evaluation Report to determine Section 504 eligibility in accordance with the Director’s Instruction.
4. SECTION 504 ELIGIBILITY
4.1 The CEPT of record shall convene the Committee within the 30 calendar days (reference section 3.2.5) for review of the final Evaluation Report to determine whether an inmate student has a disability and therefore is Section 504 eligible.
4.1.1 The inmate student and/or parent/guardian will be invited to the Committee’s final review of the Evaluation Report utilizing the Section 504 Meeting Notice (Meeting Notice); however, attendance by the parent/guardian is not mandatory.
4.1.2 The CEPT will notify the Designee of the Committee meeting.
4.2 The Committee will establish eligibility using the Section 504 Notice of Eligibility/Non-Eligibility form.
4.3 Once the inmate student is identified as eligible due to a physical or mental disability that substantially limits learning, an Accommodation Plan will be developed within ten work days in accordance with this Director’s Instruction.
4.4 If an inmate student is deemed ineligible and the inmate student disagrees with the decision or believes other relevant information was not previously disclosed or available, the inmate student may appeal the decision utilizing the Appeal and Grievance Procedures outlined in this Director’s Instruction.
5. SECTION 504 ACCOMMODATION PLAN/ENTITLEMENT
5.1 The Accommodation Plan developed by the Committee will describe what accommodations, auxiliary aids and services or programs will be provided to ensure the inmate student’s equal access and participation to instructional programs/classroom environment and facilities.
5.2 Accommodations for auxiliary aids and services may include:
5.2.1 Qualified interpreters, note takers, transcription services, written materials, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, telecommunications devices for deaf persons (TDD's), videotext displays or other effective methods of making aurally delivered materials available to individuals with hearing impairments;
5.2.2 Qualified readers, taped texts, audio recordings, Braille materials, large print materials or other effective methods of making visually delivered materials available to individuals with visual impairments;
5.2.3 Acquisition or modification of equipment or devices;
of the inmate student on appropriate behaviors or an alternative method of instruction.5.2.4 Other similar services and actions including modification of schedules, seat change, change in feedback, reorganization of the classroom, guidance/counseling
5.3 In the event that the Committee has determined a need to purchase auxiliary aids and services for communication exceeding $200, the 504/ADA Education Coordinator and Education Administrator will be contacted to allocate the funding source and final approval.
5.4 All Committee members involved in the development of the Accommodation Plan will sign.
5.5 Within five work days of the inmate student’s Accommodation Plan completion, the CEPT will provide a copy to the Designee who will send or give a copy of the Accommodation Plan to the inmate student or, if appropriate, the parent/guardian of a minor inmate student.
5.6 Within ten work days of the completion the Accommodation Plan, accommodations in the classroom will begin for the inmate student.
5.6.1 If circumstances warrant additional time to arrange for services, equipment and/or standard procurement processes, the extension of timeframes shall be documented within the Accommodation Plan as approved by the Education Administrator.
5.7 All of the inmate student’s documentation regarding Section 504 will be added to the inmate student’s file maintained at the complex by the CEPT of record.
5.8 All personnel involved in the delivery of the education program to the inmate students are responsible for implementing and complying with the inmate student’s Accommodation Plan.
5.9 Upon completion of an inmate student’s Accommodation Plan, the Designee will provide a copy to the 504/ADA Education Coordinator within five work days.
5.9.1 When an Accommodation Plan has been finalized an entry shall be made by the Complex Designee on the inmate’s AIMS DT08 screen.
5.10 The Designee will submit an updated database of inmate students enrolled in education who are in the 504 pre-referral, evaluation, placement and/or review process by the fifth work day of each month.
5.10.1 The database shall include inmate name, ADC number, ethnicity, CEPT, education program, unit location, screening date, comments and approved accommodation(s).
5.11 The 504/ADA Education Coordinator will maintain a statewide 504 database and conduct random audits.
6.
APPEAL AND GRIEVANCE PROCEDURES FOR INMATE STUDENTS6.1 Inmate students shall have the right to request a prompt and equitable resolution to a complaint alleging any action prohibited by Section 504 and Title II of ADA relating to the Department’s education programs.
6.2 Inmate students with disabilities who need reasonable accommodation including auxiliary aids, shall utilize an Inmate Letter in accordance with Department Order 916: Staff-Inmate Communication to request the Designee review their concerns, needs and preferences.
6.3 FAPE eligible inmate students may utilize the Procedural Safeguards afforded by IDEA 2004 to appeal the decision and/or outcome of the Committee.
6.4 If a postsecondary inmate student or 22 years or older inmate student is not satisfied with the outcome of the informal resolution and feels they have been discriminated against because of their disability, they may pursue a resolution through the inmate grievance system. (SeeDepartment Order #802, Inmate Grievance System).
6.5 Inmates may file a complaint regarding disability discrimination concerns related to the Department’s educational programs with the United States Office for Civil Rights, Department of Education, Washington, DC 20201.
7. SECTION 504 REVIEW
7.1 Each inmate student’s Accommodation Plan will be re-evaluated by the Committee annually to determine continued eligibility.
7.2 If any significant changes are required in an inmate student’s Accommodation Plan due to educational program changes, transitions or completions, a re-evaluation by the CEPT of the inmate student’s needs shall be conducted.
7.3 All of the inmate student’s documentation regarding review of Section 504 will be added to the inmate student’s file maintained at the complex by the CEPT of record and forwarded through the Designee to the 504/ADA Coordinator.
8. NOTIFICATION
8.1 Notification of this Director’s Instruction to ADC staff, support personnel and volunteers shall be available through the ADC internet and intranet.
8.2 The Policy shall provide that the Department does not discriminate in admission or access to, or treatment or employment in, its educational programs or activities. Additionally, posting of the Section 504 Policy Notice form shall occur at all ADC sites to identify the 504/ADA Education Coordinator.
DEFINITIONS
504/ADA Education Coordinator
: Statewide Work Force Development Education Coordinator responsible for ensuring compliance with Section 504 of the Rehabilitation Act of l973 and Title II of Americans with Disabilities Act (ADA) of 1990 as they relate to education.Accommodation Plan, Section 504: A Section 504 Accommodation Plan for inmate students who are 21 years of age and younger that describes accommodations, services and programs that will be provided to ensure inmate students with a disability access to programs and facilities.
Committee, Section 504: shall be comprised of (at a minimum) the CEPT of record and the inmate student and/or parent guardian of a minor student.
Designee for the Complex, Section 504: CEPT or CEPS designated by the Complex CEPM/CEPS to monitor and serve as a consultant for the Section 504 identification process. An individual knowledgeable of the statutes and regulations under Section 504 of the Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act (ADA) of 1990 and/or Individuals with Disabilities Education Improvement Act (IDEA) 2004.
Evaluation: The systematic determination of merit, worth, and significance of something or someone.
Free Appropriate Public Education (FAPE): Provisions that are made to provide a free appropriate education that includes general or special education and related services individualized to a specific student designed to meet that student’s unique needs and from which the student receives educational benefit.
Has a record of such an impairment: Has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activities.
In Loco Parentis: In place of the parents. Minors adjudicated as adults are the responsibility of the Department; therefore, the Department may act in the absence of the parent.
Individuals with Disabilities Education Improvement Act 2004 (IDEA 2004): A United States Law that governs how states and public agencies provide early intervention, special education and related services to students with disabilities from birth to the age of 21.
Is regarded as having an impairment (disability): (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 but is treated by a recipient as having such an impairment.
Major life activities Functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.
Meeting Notification: Section 504 Meeting Notice form for notifying the parent/guardian and/or inmate student.
Minor Inmate Student: Juvenile offender (under the age of 18) tried and convicted as an adult.
Physical or mental impairment: (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.
Placement: Refers to services to be provided, not location.
Procedural Safeguard Requirements: A system established by IDEA 2004 that includes notice for the inmate student and/or parent/guardian of a minor inmate student to examine relevant records, and provide an opportunity for mediation, due process complaint, resolution meeting or an impartial due process hearing in all matters pertaining to identification, evaluation, services and appeal.
Section 504 of Rehabilitation Act of 1973: Section of the Rehabilitation Act of 1973 that applies to persons with disabilities and is a civil rights act that protects the civil and constitutional rights of persons with disabilities. It states that no person with a disability can be excluded from or denied benefits of any program receiving federal financial assistance.
Section 504: Refers to Section 504 of the Rehabilitation Act of 1973.
Students eligible for Free Appropriate Public Education (FAPE): Students with disabilities 21 years of age and younger who have not graduated from high school.
Test of Adult Basic Education (TABE): An educational test battery which assesses basic reading, mathematics and language skills appropriate for adults.
AUTHORITY
Section 504 of the Rehabilitation Act of 1973
Code of Federal Regulations – Title 28 and 34
Americans with Disabilities Act of 1990, Titles II
Individuals with Disabilities Education Improvement Act 2004 - Public Law 108-446
Free Appropriate Public Education (FAPE)
FORMS
Student Screening Report
Inmate Education/Section 504 Background Assessment, temporary use
Section 504 Policy Notice, temporary use
Section 504 Pre-Referral form, temporary use
Section 504 Notice for Initial Evaluation, temporary use
Section 504 Evaluation Report, temporary use
Section 504 Meeting Notice, temporary use
Section 504 Notice of Eligibility or Non-Eligibility, temporary use
Section 504 Accommodation Plan, temporary use
Procedural Safeguards Notice-Parents’ Rights under IDEA 2004
Forms not available in this format. See your Department Order Manual.
| DI 1 | Organizational and Title Changes |
| DI 4 | ADC Intelligence System (restricted) |
| DI 41 | Domestic Violence Convictions - Prohibition Against Possessing or Receiving Firearms |
| DI 57 | Statewide Firefighting |
| DI 61 | Sexually Violent Predators |
| DI 63 | Service Dog Program |
| DI 67 | Protective Segregation |
| DI 76 | Service Dog (Inmate Control) Pilot Project |
| DI 78 | Addendum to Department Order 511, Employee Handbooks and recession of section 511.02, Correctional Officer Handbook |
| DI 83 | Modification to Department Order 602, Background Investigations |
| DI 84 | Paralegal Access to the Institutions |
| DI 91 | Employee Awards/Recognition |
| DI 101 | Sale and Accounting of Arizona Department of Corrections (ADC) Pins |
| DI 109 | Appreciation Medallion Program |
| DI 111 | Disturbances - (Restricted) |
| DI 125 | For P-5 Inmates in Protective Segregation in Level 5 Facilities. |
| DI 131 | Process Service |
| DI 134 | Mobility Assignments |
| DI 145 | Strip Searches |
| DI 146 | Service Dog Program; Joint Supervision |
| DI 154 | Collection of Salary Overpayment |
| DI 155 | Donations of Annual Leave between Related Employees Working in Different State Agencies. |
| DI 158 | Inmate Program Plan |
| DI 159 | Modification to Department Order 512 |
| DI 167 | Inmate Transportation (Restricted) |
| DI 172 | Inmate Transportation (Restricted) |
| DI 174 | Regulations for Staff who are visiting COTA |
| DI 175 | Separation of Inmates |
| DI 180 | Recording of Attendance for Employees in Excluded Positions |
| DI 181 | Voluntary Grade Decrease |
| DI 183 | Increase of Compensatory Leave Balance Carry-over |
| DI 187 | Unresolved Staffing Procedures Issues; Hotline |
| DI 189 | Overtime Authorization |
| DI 191 | Correctional Officer (CO) Reinstatements/Former CO Hires |
| DI 192 | Registration of Sex Offenders |
| DI 196 | Victim's Leave |
| DI 197 | On-Call Rescission |
| DI 199 | Employee Incentive Program |
| DI 200 | Sick Leave Use |
| DI 206 |
 Employee Organizations |
| DI 208 | Recruitment Bonus for ASP Complexes at Lewis, Florence and Eyman |
| DI 209 | Retention Stipend for ASP Complexes at Lewis, Florence and Eyman |
| DI 211 | Homeland Security Coordinator |
| DI 212 | Security Respirator Procedures |
| DI 213 | Domestic and Workplace Violence |
| DI 215 | Retention Stipend |
| DI 219 |
Drug Offenders - Transition Program Release |
| DI 221 | Employees Right To Representation |
| DI 224 | Inmate Death Administrative Investigations |
| DI 225 | Institution/Unit Sign-In/Sign-Out Logbooks |
| DI 227 | Victim Services Office |
| DI 229 | Disciplinary Actions |
| DI 230 | Staffing Procedures/Roster Management |
| DI 231 | Use of Holding Enclosures |
| DI 234 | Employees Named on an Order of Protection |
| DI 235 | Hours of Inmate Recreation |
| DI 237 | Response to Inmate Emergencies |
| DI 238 | Modification of DO 704, Inmate Regulations |
| DI 241 |
Director's Instruction #241 , Sexual Assault Procedures |
| DI 242 | Compensation or Time off for Legal Holidays for Uncovered, FLSA-Excluded Employees |
| DI 245 | Director's Instruction #245, Dismissal Time Frame |
| DI 246 | Director's Instruction #246, Out-of-State Travel Approval Requirements |
| DI 247 | Director's Instructions #247 Inmate Store Procedures Fund |
| DI 249 | Director's Instructions #249 12-Hour Shift Pilot Program for Security Staff |
| DI 250 | Director's Instruction #250, Seniority |
| DI 253 | Director’s Instruction #253, Modification to DI 206, Recognized Employee Organizations |
| DI 254 | Director's Instruction #254, Inmate Housing Assignment Process |
| DI 255 | Director’s Instruction # 255, External Notification of Significant Events |
| DI 256 | Director’s Instruction # 256, Transfer of Medical Orders Between Health Facilities |
| DI 257 | Director’s Instruction # 257, Direct Supervision/Unit Management |
| DI 258 | Director’s Instruction # 258, Modification of DO 504, Recruitment and Hiring, and DO 508, Employee Discipline |
| DI 260 |  Director's
Instruction #260, Education Program’s Section 504 of the Rehabilitation Act
of 1973 and Title II of the Americans with
Disabilities Act (ADA) of 1990 |