HomeSection 504 Plans
Anti-Discrimination Statutes
Section 504 of the Rehabilitation Act of 1973, prohibits discrimination against any person with a disability by any entity which receives funding from any agency of the Federal government for any reason. Title II prohibits such discrimination by state and local governments. In 2008, amendments were made to the Americans With Disabilities Act, effective January 1, 2009, with a corresponding amendment to the Rehabilitation Act of 1973. The effect of the 2008 amendments is to broaden the interpretation of “disability” under both statutes. Collectively, these statutes will just be referred to as Section 504 in this section of the site.
Section 504 is a much broader statute than the Individuals with Disabilities Education Act, because it encompasses so many more types of disabilities. Generally speaking, any child with a disability who is eligible for services under IDEA, is also covered by Section 504. However, the reverse is not true, i.e., not all children who are covered by Section 504 are eligible for an Individualized Education Plan (“IEP”) under IDEA. This is because the definition of disability under IDEA is narrower than under Section 504.
Section 504 requires your school to prove a “free, appropriate public education” (“FAPE”—as it is also referred to under IDEA), to every qualified student in the school district, regardless of the nature or severity of the disability. Essentially, your school must provide regular or special education, with related aids and services that are designed to meet your child’s educational needs to the same extent the needs of non-disabled children are met.
As with our section on IDEA and IEPs, this discussion of Section 504 is only intended to give you an overview of the basics. To find out whether your child qualifies for educational assistance pursuant to Section 504, you need to read the regulations governing Section 504, which were issued by the United States Department of Education. You can access them online through this link:
Section 504
Your local public library might have a copy of the printed version of the Code of Federal Regulations, and your local law school library almost certainly will. You will also need consult with your school about its Section 504 program. The school should have written policies and procedures, as well as the forms you need to apply. Frequently, these forms will be available on the school’s Web site.
General Eligibilty
Under the original language of Section 504, your child would be eligible
if he or she (1) “has a physical or mental impairment which
substantially limits one or more major life activities, (2) has a record
of such an impairment, or (3) is regarded as having such an
impairment.” The 2008 ADA amendments broadened the scope of each of the
three alternatives.
“Major life activities” is now defined as
including, but not being limited to, “caring for oneself, performing
manual tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading, concentrating,
thinking, communicating, and working.” A major life activity also
includes “the operation of a major bodily function, including but not
limited to, functions of the immune system, normal cell growth,
digestive, bowel, bladder, neurological, brain, respiratory,
circulatory, endocrine, and reproductive functions.”
Congress
also added a definition of what constitutes “being regarded” as having
an impairment. Your child would meet that requirement if you could
establish that your child “has been subjected to an action prohibited
under [the law] because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived to limit
a major life activity.” Transitory or minor impairments, i.e.,
impairments with an actual or expected duration of six months or less,
do not make your child eligible. However, the law also provides that if
your child’s disability is solely based on the definition of “being
regarded as having an impairment,” the educational entity does not have
to provide reasonable accommodations or reasonable modifications.
Here is a link to the statute amending Section 504, which provides you
with the actual language relating to anti-discrimination, eligibility
standards, etc.
Click here to view language
In terms of age, your child is qualified if he or she is of an age
where state law mandates providing educational services to persons with
disabilities, or is of an age where state law mandates providing
educational services to persons without disabilities, or your child is
required to receive a FAPE under IDEA.
Covered Disabilities
The regulations enacted by the Department of Education go into further
detail about what constitutes a physical or mental impairment, as: “(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;
genitourinary; 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.” The regulations do not attempt to provide a list of
specific diseases or conditions that would constitute a physical or
mental impairment under the law for the simple reason it would be
virtually impossible to be sure to include every disease or condition.
The key factor in determining whether your child will be covered by
Section 504 is whether the impairment substantially limits one or more
major life functions. Basically, that means the impairment has to have a
material effect on your child’s ability to perform a major life
function. For example, if your child does in fact have a physical or
mental impairment, but the condition does not limit him or her in any
way, or only causes some minor limitation, then your child would not
qualify under Section 504.
But the law does ban
discrimination against someone who does not actually have a disability,
if he or she is treated as if they do, because of a history of having a
disability, or having been misclassified as having a disability.
However, in some cases Section 504 also protects individuals who do not
have a handicapping condition but are treated as though they do because
they have a history of, or have been misclassified as having, a mental
or physical impairment that substantially limits one or more major life
activities. Some examples of the first group are persons with histories
of mental or emotional illness, heart disease, or cancer. In the second
group, it may be someone who has been misclassified as mentally
retarded. Someone who is not disabled but who is treated as if they
were may also be covered, such as a person with H.I.V.
Hidden Disabilities
A “hidden disability” is a physical or mental impairment that is not
immediately or readily apparent or visible to others. Disabilities such
as blindness, deafness, a limp, some form of paralysis, etc., are
clearly obvious to others. But things like specific learning
disabilities, such as dyslexia, diabetes, allergies, epilepsy, low
vision, poor hearing, heart disease, or chronic illness may not be
obvious. A chronic illness is “a recurring and long-term disability such
as diabetes, heart disease, kidney and liver disease, high blood
pressure, or ulcers.”
Some fairly recent statistics from the
Office for Civil Rights of the Department of Education (the enforcement
arm for Section 504) suggest that some 4,000,000 students with
disabilities are enrolled in public elementary and secondary schools in
the United States. Of these students, some 43% are classified as
learning disabled, 8% are classified as emotionally disturbed and 1% are
classified has having other health impairments. Hidden disabilities
often cannot be recognized without the use of appropriate diagnostic
testing.
Unfortunately, children with hidden disabilities are
frequently not properly diagnosed. If your child has an undiagnosed
hearing impairment, he or she may not understand a lot of what a teacher
says. A child with a learning disability may not be able to process
oral or written information easily; a child with an emotional problem
may be unable to concentrate in a regular classroom. Children like
these, no matter how intelligent they are, may not be able to fully
demonstrate their actual abilities, or achieve educational benefits
equal to that of students without disabilities. The hidden disabilities
may leave them vulnerable to perceptions that they are slow or lazy or
discipline problems.
Yes, of course it is true that there are
some children who are slow or lazy or discipline problems, or children
who aren’t doing well academically, with no disabilities whatsoever.
But children who appear that way may also have a hidden disability. If
you feel your child needs special education or related services, get in
touch with your school district. You have a right to request that your
school evaluate your child, to determine whether he or she has a
disability and whether special education, or related services, are
needed to provide an appropriate education. If your child is determined
as needing special education or related services, then your school has a
duty to arrange for them.
Help for Hidden Disabilities
Here are some examples provided by the Department of Education of
ways in which your school might address the needs of your child with one
of the following disabilities. The language, without quotation marks,
is from material written by the Department of Education.
- A student with a long-term, debilitating medical problem such as cancer, kidney disease, or diabetes may be given special consideration to accommodate the student's needs. For example, a student with cancer may need a class schedule that allows for rest and recuperation following chemotherapy.
- A student with a learning disability that affects the ability to demonstrate knowledge on a standardized test or in certain testing situations may require modified test arrangements, such as oral testing or different testing formats.
- A student with a learning disability or impaired vision that affects the ability to take notes in class may need a notetaker or tape recorder.
- A student with a chronic medical problem such as kidney or liver disease may have difficulty in walking distances or climbing stairs. Under Section 504, this student may require special parking space, sufficient time between classes, or other considerations, to conserve the student's energy for academic pursuits.
- A student with diabetes, which adversely affects the body's ability to manufacture insulin, may need a class schedule that will accommodate the student's special needs.
- An emotionally or mentally ill student may need an adjusted class schedule to allow time for regular counseling or therapy.
- A student with epilepsy who has no control over seizures, and whose seizures are stimulated by stress or tension, may need accommodation for such stressful activities as lengthy academic testing or competitive endeavors in physical education.
- A student with arthritis may have persistent pain, tenderness or swelling in one or more joints. A student experiencing arthritic pain may require a modified physical education program.
- The above information from the Department of Education is clearly not intended to be all-inclusive. You may be able to obtain more information by going online to the Office for Civil Rights.
Your School's Responsibility
Under the Department of Education’s Section 504 regulations, your
school has some specific duties toward qualified children with
disabilities within the school district’s boundaries:
- There must be an annual effort to identify and locate all disabled children who are not being served.
- A FAPE has to be provided to every student with a disability, regardless of the nature or severity. Basically, the school has to provide regular or special educational aids and services which are designed to meet the individual educational needs of disabled students to the same extent as the needs of non-disabled students are met.
- Each disabled student must be educated with non-disabled students to the maximum extent appropriate for the needs of the disabled student.
- Nondiscriminatory evaluation and placement procedures must be established and implement so as to avoid inappropriate education that can result from a misclassification or misplacement of a child.
- There must be procedural safeguards in place to enable parents or guardians to have meaningful participation in decisions about the evaluation and placement of their children.
- Children with disabilities must be afforded an equal opportunity to participate in non-academic and extracurricular services or activities.
Frequently Asked Questions
On March 27, 2009, the Office for Civil Rights of the Department of
Education published a revised list of 46 “frequently asked questions”
about Section 504, in light of the ADA amendments that went into effect
on January 1, 2009. The complete document can be found at this link:
46 Frequently Asked Questions
The excerpts below are identified with the original FAQ numbers from
the Office for Civil Rights, without quotation marks. Since the primary
focus of BirthInjury.Org is on young children, an ellipsis (...)
indicates additional information is available in the original document.
4. What services are available for students with disabilities under Section 504?
Section 504 requires recipients to provide to students with
disabilities appropriate educational services designed to meet the
individual needs of such students to the same extent as the needs of
students without disabilities are met. An appropriate education for a
student with a disability under the Section 504 regulations could
consist of education in regular classrooms, education in regular classes
with supplementary services, and/or special education and related
services.
13. Does the meaning of the phrase "qualified
student with a disability" differ on the basis of a student's
educational level, i.e., elementary and secondary versus postsecondary?
Yes. At the elementary and secondary educational level, a "qualified
student with a disability" is a student with a disability who is: of an
age at which students without disabilities are provided elementary and
secondary educational services; of an age at which it is mandatory under
state law to provide elementary and secondary educational services to
students with disabilities; or a student to whom a state is required to
provide a free appropriate public education under the Individuals with
Disabilities Education Act (IDEA).
14. Does the nature of services to which a student is entitled under Section 504 differ by educational level?
Yes. Public elementary and secondary recipients are required to
provide a free appropriate public education to qualified students with
disabilities. Such an education consists of regular or special education
and related aids and services designed to meet the individual
educational needs of students with disabilities as adequately as the
needs of students without disabilities are met.
15. Once a student is identified as eligible
for services under Section 504, is that student always entitled to such
services?
Yes, as long as the student remains
eligible. The protections of Section 504 extend only to individuals who
meet the regulatory definition of a person with a disability. If a
recipient school district re-evaluates a student in accordance with the
Section 504 regulatory provision at 34 C.F.R. 104.35 and determines that
the student's mental or physical impairment no longer substantially
limits his/her ability to learn or any other major life activity, the
student is no longer eligible for services under Section 504.
18. What is an appropriate evaluation under Section 504?
Recipient school districts must establish standards and procedures for
initial evaluations and periodic re-evaluations of students who need or
are believed to need special education and/or related services because
of disability. The Section 504 regulatory provision at 34 C.F.R.
104.35(b) requires school districts to individually evaluate a student
before classifying the student as having a disability or providing the
student with special education. Tests used for this purpose must be
selected and administered so as best to ensure that the test results
accurately reflect the student's aptitude or achievement or other factor
being measured rather than reflect the student's disability, except
where those are the factors being measured. Section 504 also requires
that tests and other evaluation materials include those tailored to
evaluate the specific areas of educational need and not merely those
designed to provide a single intelligence quotient. The tests and other
evaluation materials must be validated for the specific purpose for
which they are used and appropriately administered by trained personnel.
19. How much is enough information to document that a student has a disability?
At the elementary and secondary education level, the amount of
information required is determined by the multi-disciplinary committee
gathered to evaluate the student. The committee should include persons
knowledgeable about the student, the meaning of the evaluation data, and
the placement options. The committee members must determine if they
have enough information to make a knowledgeable decision as to whether
or not the student has a disability. The Section 504 regulatory
provision at 34 C.F.R. 104.35(c) requires that school districts draw
from a variety of sources in the evaluation process so that the
possibility of error is minimized. The information obtained from all
such sources must be documented and all significant factors related to
the student's learning process must be considered. These sources and
factors may include aptitude and achievement tests, teacher
recommendations, physical condition, social and cultural background, and
adaptive behavior. In evaluating a student suspected of having a
disability, it is unacceptable to rely on presumptions and stereotypes
regarding persons with disabilities or classes of such persons.
Compliance with the IDEA regarding the group of persons present when an
evaluation or placement decision is made is satisfactory under Section
504.
20. What process should a school district use
to identify students eligible for services under Section 504? Is it the
same process as that employed in identifying students eligible for
services under the IDEA?
School districts may use
the same process to evaluate the needs of students under Section 504 as
they use to evaluate the needs of students under the IDEA. If school
districts choose to adopt a separate process for evaluating the needs of
students under Section 504, they must follow the requirements for
evaluation specified in the Section 504 regulatory provision at 34
C.F.R. 104.35.
21. May school districts consider "mitigating
measures" used by a student in determining whether the student has a
disability under Section 504?
No. As of January 1,
2009, school districts, in determining whether a student has a physical
or mental impairment that substantially limits that student in a major
life activity, must not consider the ameliorating effects of any
mitigating measures that student is using. This is a change from prior
law. Before January 1, 2009, school districts had to consider a
student’s use of mitigating measures in determining whether that student
had a physical or mental impairment that substantially limited that
student in a major life activity. In the Amendments Act (see FAQ 1),
however, Congress specified that the ameliorative effects of mitigating
measures must not be considered in determining if a person is an
individual with a disability.
Congress did not define the
term “mitigating measures” but rather provided a non-exhaustive list of
“mitigating measures.” The mitigating measures are as follows:
medication; medical supplies, equipment or appliances; low-vision
devices (which do not include ordinary eyeglasses or contact lenses);
prosthetics (including limbs and devices); hearing aids and cochlear
implants or other implantable hearing devices; mobility devices; oxygen
therapy equipment and supplies; use of assistive technology; reasonable
accommodations or auxiliary aids or services; and learned behavioral or
adaptive neurological modifications.
Congress created one exception
to the mitigating measures analysis. The ameliorative effects of the
mitigating measures of ordinary eyeglasses or contact lenses shall be
considered in determining if an impairment substantially limits a major
life activity. “Ordinary eyeglasses or contact lenses” are lenses that
are intended to fully correct visual acuity or eliminate refractive
error, whereas “low-vision devices” (listed above) are devices that
magnify, enhance, or otherwise augment a visual image.
23. Are there any impairments which automatically mean that a student has a disability under Section 504?
No. An impairment in and of itself is not a disability. The impairment
must substantially limit one or more major life activities in order to
be considered a disability under Section 504.
24. Can a medical diagnosis suffice as an evaluation for the purpose of providing FAPE?
No. A physician's medical diagnosis may be considered among other
sources in evaluating a student with an impairment or believed to have
an impairment which substantially limits a major life activity. Other
sources to be considered, along with the medical diagnosis, include
aptitude and achievement tests, teacher recommendations, physical
condition, social and cultural background, and adaptive behavior. As
noted in FAQ 22, the Section 504 regulations require school districts to
draw upon a variety of sources in interpreting evaluation data and
making placement decisions.
25. Does a medical diagnosis of an illness automatically mean a student can receive services under Section 504?
No. A medical diagnosis of an illness does not automatically mean a
student can receive services under Section 504. The illness must cause a
substantial limitation on the student's ability to learn or another
major life activity. For example, a student who has a physical or mental
impairment would not be considered a student in need of services under
Section 504 if the impairment does not in any way limit the student's
ability to learn or other major life activity, or only results in some
minor limitation in that regard.
28. Who in the evaluation process makes the
ultimate decision regarding a student's eligibility for services under
Section 504?
The Section 504 regulatory provision
at 34 C.F.R.104.35 (c) (3) requires that school districts ensure that
the determination that a student is eligible for special education
and/or related aids and services be made by a group of persons,
including persons knowledgeable about the meaning of the evaluation data
and knowledgeable about the placement options. If a parent disagrees
with the determination, he or she may request a due process hearing.
29. Once a student is identified as eligible
for services under Section 504, is there an annual or triennial review
requirement? If so, what is the appropriate process to be used? Or is it
appropriate to keep the same Section 504 plan in place indefinitely
after a student has been identified?
Periodic
re-evaluation is required. This may be conducted in accordance with the
IDEA regulations, which require re-evaluation at three-year intervals
(unless the parent and public agency agree that re-evaluation is
unnecessary) or more frequently if conditions warrant, or if the child's
parent or teacher requests a re-evaluation, but not more than once a
year (unless the parent and public agency agree otherwise).
30. Is a Section 504 re-evaluation similar to an IDEA re-evaluation? How often should it be done?
Yes. Section 504 specifies that re-evaluations in accordance with the
IDEA is one means of compliance with Section 504. The Section 504
regulations require that re-evaluations be conducted periodically.
Section 504 also requires a school district to conduct a re-evaluation
prior to a significant change of placement. OCR considers an exclusion
from the educational program of more than 10 school days a significant
change of placement. OCR would also consider transferring a student from
one type of program to another or terminating or significantly reducing
a related service a significant change in placement.
31. What is reasonable justification for referring a student for evaluation for services under Section 504?
School districts may always use regular education intervention
strategies to assist students with difficulties in school. Section 504
requires recipient school districts to refer a student for an evaluation
for possible special education or related aids and services or
modification to regular education if the student, because of disability,
needs or is believed to need such services.
36. If a student is eligible for services
under both the IDEA and Section 504, must a school district develop both
an individualized education program (IEP) under the IDEA and a Section
504 plan under Section 504?
No. If a student is
eligible under IDEA, he or she must have an IEP. Under the Section 504
regulations, one way to meet Section 504 requirements for a free
appropriate public education is to implement an IEP.
37. Must a school district develop a Section
504 plan for a student who either "has a record of disability" or is
"regarded as disabled"?
No. In public elementary
and secondary schools, unless a student actually has an impairment that
substantially limits a major life activity, the mere fact that a student
has a "record of" or is "regarded as" disabled is insufficient, in
itself, to trigger those Section 504 protections that require the
provision of a free appropriate public education (FAPE). This is
consistent with the Amendments Act (see FAQ 1), in which Congress
clarified that an individual who meets the definition of disability
solely by virtue of being “regarded as” disabled is not entitled to
reasonable accommodations or the reasonable modification of policies,
practices or procedures. The phrases "has a record of disability" and
"is regarded as disabled" are meant to reach the situation in which a
student either does not currently have or never had a disability, but is
treated by others as such.
41. Must a recipient school district obtain parental consent prior to conducting an initial evaluation?
Yes. OCR has interpreted Section 504 to require districts to obtain
parental permission for initial evaluations. If a district suspects a
student needs or is believed to need special instruction or related
services and parental consent is withheld, the IDEA and Section 504
provide that districts may use due process hearing procedures to seek to
override the parents' denial of consent for an initial evaluation.
42. If so, in what form is consent required?
Section 504 is silent on the form of parental consent required. OCR
has accepted written consent as compliance. IDEA as well as many state
laws also require written consent prior to initiating an evaluation.
43. What can a recipient school district do if
a parent withholds consent for a student to secure services under
Section 504 after a student is determined eligible for services?
Section 504 neither prohibits nor requires a school district to
initiate a due process hearing to override a parental refusal to consent
with respect to the initial provision of special education and related
services. Nonetheless, school districts should consider that IDEA no
longer permits school districts to initiate a due process hearing to
override a parental refusal to consent to the initial provision of
services.
44. What procedural safeguards are required under Section 504?
Recipient school districts are required to establish and implement
procedural safeguards that include notice, an opportunity for parents to
review relevant records, an impartial hearing with opportunity for
participation by the student's parents or guardian, representation by
counsel and a review procedure.
45. What is a recipient school district's
responsibility under Section 504 to provide information to parents and
students about its evaluation and placement process?
Section 504 requires districts to provide notice to parents explaining
any evaluation and placement decisions affecting their children and
explaining the parents' right to review educational records and appeal
any decision regarding evaluation and placement through an impartial
hearing.
Section 504 Plans
As noted above, if your child qualifies for an IEP, that is an
acceptable method of having a Section 504 plan as well. One thing you
should insist on, though, if your child is eligible for Section 504
assistance, is that the plan is in writing. It’s all well and good to
have a good personal relationship with a teacher or a principal or a
superintendent, and do everything on a handshake. But its hard
(difficult to at times nearly impossible) to enforce a handshake
agreement if you move to a new school within the district, or the
teacher dies, or the superintendent gets a better job eight states away.
A written plan ensures that everyone, and that includes you as well,
knows what is to be done, and how it is to be done.
A Web site called About.Com Special Needs Children
also provides information about Section 504 and IEPs. The following
suggestions about IEPs appear on that site, but we think the ideas are
equally applicable to Section 504 plans. The suggestions are derived
from About.Com, but are paraphrased here. The link to the page is
provided below.
- Understand before you sign. Don’t sign something that gives your consent even before you’ve seen the full plan. Don’t let anyone rush you into signing, no matter how urgent they say it is. Whether it’s an IEP or a Section 504 plan there’s a potential for an intimidating amount of paper, so as the cliché goes: Look before you leap.
- Be sure that all the goals for your child are plainly stated, including the standards by which achieving the goals will be measured, and who will decide whether the goals are achieved.
- Plan on being told that if it isn’t in the written plan, it doesn’t exist. Everything should be there. “If you just sort of remember that somebody said something about it at one time, you may trouble getting that enforced.”
- If your child is to receive speech, physical or occupational therapies, the details need to be spelled out, including measurable goals, how many sessions per week, and where they will take place.
- If your child’s time is going to be split between regular education and special education, be sure that the division, whether stated in percentages or otherwise, is clearly stated. If what’s written isn’t the same as what you understood during the planning process, ask for an explanation and adjustments if necessary.
- If there is a reference to a behavior plan, that should be included in detail as well. The methodology should be specified.
- If there is anything about your child that you want known to those who will implement the plan, be sure—insist if necessary—that the information is included in the final written version. “It may be that no one will read it, but if it’s in the [plan], they can’t claim they were never informed.”
Here is the link to About.Com’s page on signing an IEP: About.com on IEP
Flow Chart
The Ames Community School District, in Ames, Iowa, has a special
section on its Web site devoted to Section 504 plans. Here’s the link:
Section 503 Plans
We’re not suggesting that the Ames Section 504 procedures are
the be-all and end-all of Section 504 planning, but the information and
the forms can give you an idea of what you might look for or expect
with your own school district. Or the information might suggest things
to ask your school, if the topic isn’t already covered.
One
of the things the Ames School District has done is provide a flow-chart
that offers an excellent look at the relationship between Section 504
evaluations and plans and an IEP under IDEA. Here it is:
Your Rights
The Foundation for Learning Your Rights
You have a child with a disability. Whether it is an obvious disability like a brachial plexus injury with an arm that doesn’t function properly, or readily observable physical or cognitive problems flowing from a brain injury or cerebral palsy, or a hidden disability, the only way you can ensure that your child receives the education he or she is entitled to receive is to know what those rights are. Hopefully, we’ve given you a foundation for learning your rights, and your child’s rights.