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, state and federal law, and must have a disability. An impairment as used in Section 504 may include any disability, long-term illness, or various disorders 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.[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”[3]

What is “impairment” as used under the Section 504 definition?

An impairment as used in Section 504 may include any disability, long-term illness, or various disorders 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.

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 re-authorization of the Americans with Disabilities Amendment Act, this list has also been expanded to include the life activities of reading, concentrating, standing, lifting, bending, etc. Conditions that are episodic or in remission are also now covered if they create a substantial limitation in one or more major life activities 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, the Office for Civil Rights (OCR) has stated that “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 the 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. 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 requires either regular education with supplementary services or special education and related services. If a parent requests a referral for evaluation and the school district refuses, the school district must notify the parent of their procedural rights under Section 504.

Who decides whether a student is qualified and eligible for services under Section 504?

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 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 that would be helpful to the Section 504
the committee in making their determination of what the child may need. Schools are expected to make sound educational decisions about what the child needs to receive an appropriate education.

What information is used in 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 and ensure 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.[4] 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 to have an equal opportunity to compete 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 compensate skills they will need to function in life after graduation.

Accommodations that may be used include, but are not limited to:

• 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.”[5]

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 will 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 cannot go to in-school suspension or be suspended from school for three days. Stringent guidelines exist for schools in discipline issues with students who have a disability under Section 504. Your campus or district 504 coordinators 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.

How often will my child be re-evaluated?

While there are no specific timelines 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 committees should re-evaluate your child’s plan every year to ensure that their 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 non-academic services?

Yes, districts must provide equal opportunity in 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 under Section 504.[6][7]

Contact an Experienced Education Law Attorney

Our attorneys have years of experience representing education law clients in the states of New York and Connecticut. With offices located in New York City and Westport, we strive to provide large firm service while maintaining the small firm attention and accountability you deserve.  us today for assistance with your Section 504 questions. Call 212-682-5700 for our New York offices or 203-221-3100 for our Connecticut office.

 

---

[1] 29 U.S.C. §794(a), 34 C.F.R. §104.4(a).
[2] 34 C.F.R. §104.3(k)(2).
[3] 34 C.F.R. §104.3(j)(1).
[4] 34 C.F.R. §104.36.
[5] 34 C.F.R. §104.34, Appendix A, #24.
[6] 34 C.F.R. §104.37.
[7] Durheim, Mary, A Parent’s Guide to Section 504 in Public Schools, Great Kids, http://www.greatschools.org/gk/articles/section-504-2/ (January 2010).