What is Section 504?
Section 504 is a part of the Rehabilitation Act of 1973 that
prohibits discrimination based upon disability. Section 504 is an
anti-discrimination, civil rights statute that requires the needs of
students with disabilities to be met as adequately as the needs of the
non-disabled are met.
Section 504 states that: “No otherwise qualified
individual with a disability in the United States, as defined in section
706(8) of this title, shall, solely by reason of her or his disability,
be excluded from the participation in, be denied the benefits of, or be
subjected to discrimination under any program or activity receiving
Federal financial assistance...” [29 U.S.C. §794(a), 34 C.F.R.
§104.4(a)].
Who is covered under Section 504?
To be covered under Section 504, a student must be “qualified ”
(which roughly equates to being between 3 and 22 years of age, depending
on the program, as well as state and federal law, and must have a
disability) [34 C.F.R. §104.3(k)(2)].
Who is an “individual with a disability”?
As defined by federal law: “An individual with a disability means any
person who: (i) has a mental or physical impairment that substantially
limits one or more major life activity; (ii) has a record of such an
impairment; or (iii) is regarded as having such an impairment” [34
C.F.R. §104.3(j)(1)].
What is an “impairment” as used under the Section 504 definition?
An impairment as used in Section 504 may include any disability,
long-term illness, or various disorder that “substantially” reduces or
lessens a student’s ability to access learning in the educational
setting because of a learning-, behavior- or health-related condition.
[“It should be emphasized that a physical or mental impairment does not
constitute a disability for purposes of Section 504 unless its severity
is such that it results in a substantial limitation of one or more major
life activities” (Appendix A to Part 104, #3)].
Many students have conditions or disorders that are not readily
apparent to others. They may include conditions such as specific
learning disabilities, diabetes, epilepsy and allergies. Hidden
disabilities such as low vision, poor hearing, heart disease or chronic
illness may not be obvious, but if they substantially limit that child’s
ability to receive an appropriate education as defined by Section 504,
they may be considered to have an “impairment” under Section 504
standards. As a result, these students, regardless of their
intelligence, will be unable to fully demonstrate their ability or
attain educational benefits equal to that of non-disabled students (The
Civil Rights of Students with Hidden Disabilities under Section 504 of
the Rehabilitation Act of 1973—Pamphlet). The definition does not set
forth a list of specific diseases, conditions or disorders that
constitute impairments because of the difficulty of ensuring the
comprehensiveness of any such list. While the definition of a disabled
person also includes specific limitations on what persons are classified
as disabled under the regulations, it also specifies that only physical
and mental impairments are included, thus “environmental, cultural and
economic disadvantage are not in themselves covered” (Appendix A to Part
104, #3).
What are "major life activities"?
Major life activities include, but are not limited
to: self-care, manual tasks, walking, seeing, speaking, sitting,
thinking, learning, breathing, concentrating, interacting with others
and working. As of January 1, 2009 with the reauthorization of the
Americans with Disabilities Amendment Act, this list has been expanded
to also include the life activities of reading, concentrating, standing,
lifting, bending, etc. This may include individuals with AD/HD,
dyslexia, cancer, diabetes, severe allergies, chronic asthma, Tourette
’s syndrome, digestive disorders, cardiovascular disorders, depression,
conduct disorder, oppositional defiant disorder, HIV/AIDS, behavior
disorders and temporary disabilities (e.g., broken writing arm, broken
leg, etc.). Conditions that are episodic or in remission are also now
covered if they create a substantial limitation in one or more major
life activity while they are active. Students who are currently using
illegal drugs or alcohol are not covered or eligible under Section 504.
What does “substantially limits” mean?
Substantially limits is not defined in the federal regulations.
However, in a letter from the Office for Civil Rights (OCR), they state,
“this is a determination to be made by each local school district and
depends on the nature and severity of the person’s disabling condition.”
New guidance from the Americans with Disabilities Amendment Act
states that Section 504 standards must conform with the ADAAA and is
“intended to afford a broad scope of protection to eligible persons.” In
considering substantial limitations, students must be measured against
their same age, non-disabled peers in the general population and without
benefit of medication or other mitigating measures such as learned
behavioral or adaptive neurological modifications, assistive technology
or accommodations.
Who can refer a child for consideration for evaluation under Section 504?
Anyone can refer a child for evaluation under Section 504. However,
while anyone can make a referral, such as parents or a doctor, OCR has
stated in a staff memorandum that “the school district must also have
reason to believe that the child is in need of services under Section
504 due to a disability” (OCR Memorandum, April 29, 1993). Therefore, a
school district does not have to refer or evaluate a child under Section
504 solely upon parental demand. The key to a referral is whether the
school district staff suspects that the child is suffering from a mental
or physical impairment that substantially limits a major life activity
and is in need of either regular education with supplementary services
or special education and related services [letter to Mentink, 19 IDELR
1127 (OCR) 1993]. If a parent requests a referral for evaluation, and
the school district refuses, the school district must provide the parent
with notice of their procedural rights under Section 504.
Who decides whether a student is qualified and eligible for services under Section 504?
According to the federal regulations: “...placement decisions are to
be made by a group of persons who are knowledgeable about the child, the
meaning of the evaluation data, placement options, least restrictive
environment requirements, and comparable facilities” [34 C.F.R.
§104.35(c)(3)].
Unlike Special Education, the federal regulations for Section 504 do
not require or even mention that parents are to be a part of the
decision-making committee. The decision to include parents in the
decision-making committee is a determination that is made by each school
district and should be spelled out in the district’s procedures for
implementing Section 504. Parents should at least be asked and
encouraged to contribute any information that they may have (e.g.,
doctor’s reports, outside testing reports, etc.) that would be helpful
to the Section 504 committee in making their determination of what the
child may need. Schools are expected to make sound educational decisions
as to what the child needs in order to receive an appropriate
education.
What information is used in doing an evaluation under Section 504?
Under Section 504, no formalized testing is required. The 504
Committee should look at grades over the past several years, teacher’s
reports, information from parents or other agencies, state assessment
scores or other school administered tests, observations, discipline
reports, attendance records, health records and adaptive behavior
information. Schools must consider a variety of sources. A single source
of information (such as a doctor’s report) cannot be the only
information considered. Schools must be able to assure that all
information submitted is documented and considered.
Can my child be placed under Section 504 without my knowledge?
No. Parents must always be given notice before their
child is evaluated and/or placed under Section 504 (34 C.F.R. §104.36).
Parents must also be given a copy of their child’s Section 504
accommodation plan if the committee determines that the child is
eligible under Section 504.
What types of accommodations will my child receive if determined eligible under Section 504?
Each child’s needs are determined individually. Determination of what
is appropriate for each child is based on the nature of the disabling
condition and what that child needs in order to have an equal
opportunity to compete when compared to the non-disabled. There is no
guarantee of A’s or B’s or even that the student will not fail. Students
are still expected to produce. The ultimate goal of education for all
students, with or without disabilities, is to give students the
knowledge and compensating skills they will need to be able to function
in life after graduation.
Accommodations that may be used, but are not limited to, include:
- Highlighted textbooks
- Extended time on tests or assignments
- Peer assistance with note taking
- Frequent feedback
- Extra set of textbooks for home use
- Computer aided instruction
- Enlarged print
- Positive reinforcements
- Behavior intervention plans
- Rearranging class schedules
- Visual aids
- Preferred seating assignments
- Taping lectures
- Oral tests
- Individual contracts
Will my child still be in the regular classroom or will he be in a “special class”?
A Section 504 eligible child will always be in the regular classroom
unless (according to federal regulations): “... the student with a
disability is so disruptive in a regular classroom that the education of
other students is significantly impaired, then the needs of the student
with a disability cannot be met in that environment. Therefore, regular
placement would not be appropriate to his or her needs and would not be
required by §104.34” (34 C.F.R. §104.34, Appendix A, #24).
Can my child still be disciplined under Section 504?
Yes. Children under Section 504 are still expected
to follow the district’s student code of conduct. However, when
disciplining a child under Section 504, schools must consider the
relationship between the disability and the misbehavior if the child is
going to be removed from the regular setting for longer than 10 days.
This does not mean that a student with a disability cannot be sent to a
discipline center or that they cannot go to in-school suspension, or be
suspended from school for three days. Very strict guidelines exist for
schools in discipline issues with students who have a disability under
Section 504. Your campus or district 504 coordinator can assist you in
this area should you have additional questions concerning the discipline
of students with disabilities. Children having disabilities with
behavioral components should have individual discipline plans as well as
behavior intervention plans.
If I disagree with the school’s evaluation, will the school district pay for an outside independent evaluation?
Under Section 504, schools are not required to pay for an outside
independent evaluation. If a parent disagrees with the school’s
evaluation decision, they may request a due process hearing or file a
complaint with the Office for Civil Rights. (Ask your district or campus
for a copy of Notice of Parent and Student Rights Under Section 504 of
the Rehabilitation Act of 1973.)
How often will my child be re-evaluated?
While there are no specific time lines on this issue, students must
be re-evaluated at least every three years or whenever there is going to
be a “significant change in placement.” The campus 504 committee should
re-evaluate your child’s plan every year to make sure that his or her
accommodation plan is appropriate based on their current schedule and
individual needs. The accommodation plan may be revised at any time
during the school year if needed.
Will my child still be able to participate in nonacademic services?
Yes. Districts must provide equal opportunity in
areas such as counseling, physical education and/or athletics,
transportation, health services, recreational activities, and special
interest groups or clubs. However, the “no pass, no play ” standard used
for students in most states also applies to students under Section 504
(34 C.F.R. §104.37).
What are my rights as a parent under Section 504?
As a parent or legal guardian, you have the right to:
- Receive notice regarding the identification, evaluation and/or placement of your child;
- Examine relevant records pertaining to your child;
- Request an impartial hearing with respect
to the district’s actions regarding the identification evaluation, or
placement of your child, with an opportunity for the parent/guardian to
participate in the hearing, to have representation by an attorney, and
have a review procedure;
- File a complaint with your school
District Section 504 Coordinator, who will investigate the allegations
regarding Section 504 matters other than your child’s identification,
evaluation and placement.
- File a complaint with the appropriate
regional Office for Civil Rights. For additional information, contact:
U.S. Department of Education, Washington, D.C. 20202-1100
(800) 421-3481
www.ed.gov/ocr
E-mail: ocr@ed.gov
Do I contact the State Education Agency (SEA) if I have a complaint concerning Section 504?
No. The State Education Agency has no direct
jurisdiction over Section 504 implementation. Complaints may be
addressed to your local District 504 Coordinator or to the Office for
Civil Rights.
One note of caution: Please do not substitute
this information for independent and individual legal advice. Such
advice should be sought from a licensed, qualified attorney in the field
of Section 504 disabilities. Every situation is different, and a good
assessment of the risks involved in your particular situation can only
be determined by consulting with your attorney and providing him or her
with all of the relevant factual data. Sometimes just one “minor” detail
can make a material difference in the outcome of a case.
Updated January 2010 By Mary Durheim
