Section 504 is a federal law designed to protect the rights of students with disabilities in programs and activities that receive federal funds from the U.S. Department of Education (ED). Section 504 provides: "No otherwise qualified individual with a disability in the United States … 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…"
Section 504 covers qualified children with disabilities who attend schools receiving Federal financial assistance. To be protected under Section 504, a child must be determined to: 1) have a physical or mental impairment that substantially limits one or more major life activities; 2) have a record of such an impairment, or 3) be regarded as having such an impairment. Section 504 requires that school districts provide a free and appropriate public education (FAPE) to qualified children in their jurisdictions who have a physical or mental impairment that substantially limits one or more major life activities.
At the elementary and secondary school level, determining whether a youngster is a qualified disabled child under Section 504 begins with the evaluation process. Section 504 requires the use of evaluation procedures that ensure that kids are not misclassified, unnecessarily labeled as having a disability, or incorrectly placed, based on inappropriate selection, administration, or interpretation of evaluation materials.
Once a child is identified as being eligible for regular or special education and related aids or services, a decision must be made regarding the type of services the student needs.
Public elementary and secondary schools must employ procedural safeguards regarding the identification, evaluation, or educational placement of persons who, because of disability, need or are believed to need special instruction or related services.
The Section 504 regulation requires a school district to provide a "free appropriate public education" (FAPE) to each qualified child with a disability who is in the school district's jurisdiction, regardless of the nature or severity of the disability. FAPE consists of the provision of regular or special education and related aids and services designed to meet the child's individual needs.
This article explains pertinent requirements of Section 504 and responds to specific questions raised by moms and dads of children with an Autism Spectrum Disorder:
1. A child has a disability referenced in the IDEA, but does not require special education services. Is such a student eligible for services under Section 504? The child may be eligible for services under Section 504. The school district must determine whether the child has an impairment which substantially limits her or his ability to learn or other major life activities and, if so, make an individualized determination of the youngster's educational needs for regular or special education or related aids or services. For example, such a child may receive adjustments in the regular classroom.
2. A student is receiving services that the school district maintains are necessary under Section 504 in order to provide the child with an appropriate education. The student's parent no longer wants the child to receive those services. If the mother or father wishes to withdraw the student from a Section 504 plan, what can the school district do to ensure continuation of services? The school district may initiate a Section 504 due process hearing to resolve the dispute if the district believes the child needs the services in order to receive an appropriate education.
3. Are current illegal users of drugs excluded from protection under Section 504? Generally, yes. Section 504 excludes from the definition of a child with a disability, and from 504 protection, any child or teen who is currently engaged in the illegal use of drugs (with exceptions for persons in rehabilitation programs).
4. Are current users of alcohol excluded from protection under Section 504? No. Section 504's definition of a child with a disability does not exclude users of alcohol. However, Section 504 allows schools to take disciplinary action against children or teens with disabilities using drugs or alcohol to the same extent as those without disabilities.
5. Are there any impairments which automatically qualify a child for protection under Section 504? No. An impairment in and of itself does not qualify a student for protection under Section 504. The impairment must substantially limit one or more major life activities in order to qualify a child for protection under Section 504.
6. Can a medical diagnosis suffice as an evaluation for the purpose of providing FAPE? No. A doctor's medical diagnosis may be considered among other sources in evaluating a child with a disability or believed to have a disability 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.
7. Does a medical diagnosis of an illness automatically qualify a child for services under Section 504? No. A medical diagnosis of an illness does not automatically qualify a child for services under Section 504. The illness must cause a substantial limitation on the child's ability to learn or other major life activities. For example, a child who has a physical or mental impairment would not be considered a child 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.
8. Does Office for Civil Rights endorse a single formula or scale that measures substantial limitation? No. The determination of substantial limitation must be made on a case-by-case basis with respect to each individual child. The Section 504 regulation, at 34 C.F.R. 104.35 (c), requires that a group of knowledgeable persons draw upon information from a variety of sources in making this determination.
9. Does Office for Civil Rights examine individual placement or other educational decisions for children with disabilities? Except in extraordinary circumstances, Office for Civil Rights does not review the result of individual placement or other educational decisions so long as the school district complies with the procedural requirements of Section 504 relating to identification and location of children with disabilities, evaluation of such children, and due process. Accordingly, Office for Civil Rights generally will not evaluate the content of a Section 504 plan or of an individualized education program (IEP); rather, any disagreement can be resolved through a due process hearing. The hearing would be conducted under Section 504 or the IDEA, whichever is applicable. Office for Civil Rights will examine procedures by which school districts identify and evaluate children with disabilities and the procedural safeguards which those school districts provide children. Office for Civil Rights will also examine incidents in which children with disabilities are allegedly subjected to treatment which is different from the treatment to which similarly situated children without disabilities are subjected. Such incidents may involve the unwarranted exclusion of disabled children from educational programs and services.
10. Does Office for Civil Rights mediate complaints? Office for Civil Rights does not engage in formal mediation. However, Office for Civil Rights may offer to facilitate mediation, referred to as "Resolution between the Parties," to resolve a complaint filed under Section 504. This approach brings the parties together so that they may discuss possible resolution of the complaint immediately. If both parties are willing to utilize this approach, Office for Civil Rights will work with the parties to facilitate resolution by providing each an understanding of pertinent legal standards and possible remedies. An agreement reached between the parties is not monitored by Office for Civil Rights.
11. 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 child with a disability who is: of an age at which children 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 children with disabilities; or a child to whom a state is required to provide a free appropriate public education under the Individuals with Disabilities Education Act (IDEA). At the postsecondary educational level, a qualified youngster with a disability is a student with a disability who meets the academic and technical standards requisite for admission or participation in the institution's educational program or activity.
12. Does the nature of services to which a student is entitled under Section 504 differ by educational level? Yes. Elementary and secondary recipients are required to provide a free, appropriate public education to qualified children with disabilities. Such an education consists of regular or special education and related aids and services designed to meet the individual educational needs of children with disabilities as adequately as the needs of children without disabilities are met. At the postsecondary level, the recipient is required to provide children with appropriate academic adjustments and auxiliary aids and services that are necessary to afford an individual with a disability an equal opportunity to participate in a school's program. Recipients are not required to make adjustments or provide aids or services that would result in a fundamental alteration of a recipient's program or impose an undue burden.
13. How does Office for Civil Rights get involved in disability issues within a school district? Office for Civil Rights receives complaints from moms and dads, children or advocates; 2) Office for Civil Rights provides technical assistance to school districts, moms and dads or advocates; and 3) Office for Civil Rights initiates reviews or specific partnership initiatives with school districts to address disability issues.
14. How much is enough information to document that a child has a disability? The amount of information required is determined by the multi-disciplinary committee gathered to evaluate the child. The committee should include persons knowledgeable about the child, 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 child has a disability. The Section 504 regulation, 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 child'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 child 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.
15. How should a recipient school district handle an outside independent evaluation? Do all data brought to a multi-disciplinary committee need to be considered and given equal weight? The results of an outside independent evaluation may be one of many sources to consider. Multi-disciplinary committees must draw from a variety of sources in the evaluation process so that the possibility of error is minimized. All significant factors related to the subject child's learning process must be considered. These sources and factors include aptitude and achievement tests, teacher recommendations, physical condition, social and cultural background, and adaptive behavior, among others. Information from all sources must be documented and considered by knowledgeable committee members. The weight of the information is determined by the committee given the child's individual circumstances.
16. How should a recipient school district regard a temporary impairment? A temporary 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 for an extended period of time. The issue of whether a temporary impairment is substantial enough to be a disability must be resolved on a case-by-case basis, taking into consideration both the duration (or expected duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual.
17. If a student qualifies 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 child is eligible under IDEA, she or he must have an IEP. Under the Section 504 regulations, one way to meet Section 504 requirements is to comply with IDEA.
18. 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 comply with Section 504. The Section 504 regulation requires 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. Office for Civil Rights considers an exclusion from the educational program of more than 10 school days a significant change of placement. Office for Civil Rights would also consider transferring a child from one type of program to another or terminating or significantly reducing a related service a significant change in placement.
19. Is there a mediation requirement under Section 504? No.
20. Must a recipient school district obtain parental consent prior to initiating a Section 504 evaluation? Yes. Office for Civil Rights has interpreted Section 504 to require districts to obtain parental permission for initial evaluations. If a district suspects a child needs or is believed to need special instruction or related services and parental consent is withheld, districts may use due process hearing procedures to override the moms and dads' denial of consent for an initial evaluation. Section 504 is silent on the form of parental consent required. Office for Civil Rights has accepted written consent as compliance. IDEA as well as many state laws also require written consent prior to initiating an evaluation.
21. Must a school district develop a Section 504 plan for a child who either "has a record of disability" or is "regarded as disabled"? No. In elementary and secondary schools, unless a child actually has a disabling condition that substantially limits a major life activity, the mere fact that a child 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 and appropriate public education (FAPE). The phrases "has a record of disability" and "is regarded as disabled" are meant to reach the situation in which a child either does not currently have or never had a disability, but is treated by others as such.
22. Must school districts consider "mitigating measures" used by a student in determining whether the child has a disability under Section 504? Yes. A school district must consider a student's use of mitigating measures in determining whether the child is substantially limited in a major life activity. "Mitigating measures" are devices or practices that a person uses to correct for or reduce the effects of that person's mental or physical impairment. Examples include corrective eyeglasses and medications. A person who experiences no substantial limitation in any major life activity when using a mitigating measure does not meet the definition of a person with a disability and would not be entitled to FAPE under Section 504.
23. Once a child is identified as eligible for services under Section 504, is that child always entitled to such services? No. 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 child in accordance with the Section 504 regulation at 34 C.F.R. 104.35 and determines that the child's mental or physical impairment no longer substantially limits his/her ability to learn or any other major life activity, the child is no longer eligible for services under Section 504.
24. 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 child has been identified? Periodic re-evaluation is required. This may be conducted in accordance with the IDEA regulation, which requires re-evaluation at three-year intervals or more frequently if conditions warrant, or if the youngster's mother or father or teacher requests a re-evaluation.
25. What are the appeal rights with Office for Civil Rights? Office for Civil Rights is committed to ensuring that every complaint is appropriately resolved. If a complainant has questions or concerns about an Office for Civil Rights determination, she or he may contact the Office for Civil Rights staff person whose name appears in the complaint resolution letter. The complainant should address her or his concerns with as much specificity as possible, focusing on factual or legal questions that would change the resolution of the case. Should a complainant continue to have questions or concerns, she or he is advised to contact the Director of the responsible Office for Civil Rights field office. The Director will review the appropriateness of the complaint resolution. If the complainant remains dissatisfied, she or he may appeal to the Deputy Assistant Secretary for Enforcement.
26. What can a recipient school district do if a parent withholds consent for a child to secure services under Section 504 after a child 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.
27. What does noncompliance with Section 504 mean? A school district is out of compliance when it is violating any provision of the Section 504 statute or regulations.
28. What is a physical or mental impairment that substantially limits a major life activity? The determination of whether a child has a physical or mental impairment that substantially limits a major life activity must be made on the basis of an individual inquiry. The Section 504 regulation, at 34 C.F.R. 104.3(j)(2)(i), defines a physical or mental impairment as 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 endOffice for Civil Rightsine; or any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. The regulation does not set forth an exhaustive list of specific diseases and conditions that may constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of such a list. Major life activities, as defined in the Section 504 regulation at 34 C.F.R. 104.3(j)(2)(ii), include functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. This list is not exhaustive. Other functions can be major life activities for purposes of Section 504.
29. What is a recipient school district's responsibility under Section 504 to provide information to moms and dads and children about its evaluation and placement process? Section 504 requires districts to provide notice to moms and dads explaining any evaluation and placement decisions affecting their kids and explaining the moms and dads' right to review educational records and appeal any decision regarding evaluation and placement through an impartial hearing.
30. What is an appropriate evaluation under Section 504? Recipient school districts must establish standards and procedures for initial evaluations and periodic re-evaluations of children who need or are believed to need special education and/or related services because of disability. The Section 504 regulation, at 34 C.F.R. 104.35(b), requires school districts to individually evaluate a child before classifying the child as having a disability or providing the child 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 child's aptitude or achievement or other factor being measured rather than reflect the child'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.
31. What is reasonable justification for referring a child for evaluation for services under Section 504? School districts may always use regular education intervention strategies to assist children with difficulties in school. Section 504 requires recipient school districts to refer a child for an evaluation for possible special education or modification to regular education if the child, because of disability, needs or is believed to need such services.
32. What is the difference between a regular education intervention plan and a Section 504 plan? A regular education intervention plan is appropriate for a child who does not have a disability or is not suspected of having a disability but may be facing challenges in school. School districts vary in how they address performance problems of regular education students. Some districts employ teams at individual schools, commonly referred to as "building teams." These teams are designed to provide regular education classroom teachers with instructional support and strategies for helping children in need of assistance. These teams are typically composed of regular and special education teachers who provide ideas to classroom educators on methods for helping children experiencing academic or behavioral problems. The team usually records its ideas in a written regular education intervention plan. The team meets with an affected child's classroom teacher(s) and recommends strategies to address the child's problems within the regular education environment. The team then follows the responsible teacher(s) to determine whether the child's performance or behavior has improved. In addition to building teams, districts may utilize other regular education intervention methods, including before-school and after-school programs, tutoring programs, and mentoring programs.
33. What is the jurisdiction of the Office for Civil Rights (OCR), the Office of Special Education and Rehabilitative Services (OSERS) and state departments of education/instruction regarding educational services to students with disabilities? Office for Civil Rights, a component of the U.S. Department of Education, enforces Section 504 of the Rehabilitation Act of 1973, as amended, (Section 504) a civil rights statute which prohibits discrimination against students with disabilities. Office for Civil Rights also enforces Title II of the Americans with Disabilities Act of 1990 (ADA), which extends this prohibition against discrimination to the full range of state or local government services (including public schools), programs, or activities regardless of whether they receive any federal funding. The standards adopted by the ADA were designed not to restrict the rights or remedies available under Section 504. The Title II regulations applicable to free and appropriate public education issues do not provide greater protection than applicable Section 504 regulations. This guidance focuses on Section 504. The Office of Special Education and Rehabilitative Services (OSERS), also a component of the U.S. Department of Education, administers the Individuals with Disabilities Education Act (IDEA), a statute which funds special education programs. Each state educational agency is responsible for administering IDEA within the state and distributing the funds for special education programs. Section 504 prohibits discrimination on the basis of disability in programs or activities that receive federal financial assistance from the U.S. Department of Education. The ADA prohibits discrimination on the basis of disability by state and local governments. IDEA is a grant statute and attaches many specific conditions to the receipt of Federal IDEA funds. Section 504 and the ADA are antidiscrimination laws and do not provide any type of funding.
34. What is the receiving school district's responsibility under Section 504 toward a child with a Section 504 plan who transfers from another district? If a child with a disability transfers to a district from another school district with a Section 504 plan, the receiving district should review the plan and supporting documentation. If a group of persons at the receiving school district, including persons knowledgeable about the meaning of the evaluation data and knowledgeable about the placement options determines the plan is appropriate, the district is required to implement the plan. If the district determines that the plan is inappropriate, the district is to evaluate the child consistent with the Section 504 procedures at 34 C.F.R. 104.35 and determine which educational program is appropriate for the child.
35. What are the responsibilities of regular education teachers with respect to implementation of Section 504 plans? What are the consequences if the district fails to implement the plans? Regular education teachers must implement the provisions of Section 504 plans when those plans govern the educators' treatment of children for whom they are responsible. If the educators fail to implement the plans, such failure can cause the school district to be in noncompliance with Section 504.
36. 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 moms and dads to review relevant records, an impartial hearing with opportunity for participation by the child's moms and dads or guardian, representation by counsel and a review procedure.
37. What process should a school district use to identify children 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 initially to evaluate the needs of children under Section 504 as they use to evaluate the needs of children under the IDEA. If school districts choose to adopt a separate process for evaluating the needs of children under Section 504, they must follow the requirements for evaluation specified in the Section 504 regulation at 34 C.F.R. 104.35.
38. What protections does Office for Civil Rights provide against retaliation? A recipient is prohibited from intimidating, threatening, coercing, or discriminating against any student for the purpose of interfering with any right or privilege secured by Section 504.
39. What sanctions can Office for Civil Rights impose on a school district that is out of compliance? Office for Civil Rights initially attempts to bring the school district into voluntary compliance through negotiation of a corrective action agreement. If Office for Civil Rights is unable to achieve voluntary compliance, Office for Civil Rights will initiate enforcement action. Office for Civil Rights may: (1) initiate administrative proceedings to terminate Department of Education financial assistance to the recipient; or (2) refer the case to the Department of Justice for judicial proceedings.
40. What services are available for students who qualify under Section 504? Section 504 requires recipients to provide to children with disabilities appropriate educational services designed to meet the individual needs of such children to the same extent as the needs of children without disabilities are met. An appropriate education for a child 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.
41. What should a recipient school district do if a mother or father refuses to consent to a case study evaluation under the Individuals with Disabilities Education Act (IDEA), but demands a Section 504 plan for a child without further evaluation? Section 504 requires informed parental permission for initial evaluations. If a mother or father refuses consent for an initial evaluation and a recipient school district suspects a child has a disability, the IDEA and Section 504 provide that school districts may use due process hearing procedures to override the moms and dads' denial of consent.
42. Where can a school district, parent, or student get information on Section 504? Office for Civil Rights provides technical assistance to school districts, moms and dads, and children upon request.
43. Who has ultimate authority to enforce Section 504? In the educational context, Office for Civil Rights has been given administrative authority to enforce Section 504. Section 504 is a Federal statute that may be enforced through the Department's administrative process or through the Federal court system. In addition, a person may at any time file a private lawsuit against a school district.
44. Who in the evaluation process makes the ultimate decision regarding a child's eligibility for services under Section 504? The Section 504 regulation at 34 C.F.R. 104.35 (c) (3) requires that school districts ensure that the determination that a child 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 mother or father disagrees with the determination, she or he may request a due process hearing.
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