CMCSS Section 504

Section 504 Resources

What is Section 504

Section 504 is part of the Rehabilitation Act of 1973, which is a civil rights act that prohibits discrimination based upon disability. The law states that "no person with a disability can be excluded from or denied benefits of any program receiving federal financial assistance either directly or indirectly" ; this includes all public schools. With passage of the Rehabilitation Act of 1973, Congress required that school districts make their programs and activities available as well as accessible to all individuals with disabilities. The requirement means more than just physical access; a child may require special accommodations in order to benefit from their education.

What is Required of Section 504?

Section 504 requires the provision of appropriate educational services; services that are designed to meet the individual needs of qualified ​ students to the same extent that the needs of students without a disability are met. Essentially Section 504 was designed to "level the playing field," to ensure full participation by individuals with disabilities.

Who is Eligible under Section 504?

There are three ways a person is eligible under Section 504:
(i) Has a physical or mental impairment, which substantially limits one or more major life activities (e.g., drug addicted or alcoholic students; students with diabetes). The definition does not set forth a list of specific diseases and conditions that constitute physical or mental impairments because of the difficulty of ensuring the comprehensiveness of such a list. Not included are persons who are disadvantaged by cultural, environmental or economic factors, prison records, age or homosexuality.

(ii) Has a record or history of such an impairment (e.g., a student who had cancer; a student in recovery). The term also includes children who have been misclassified (e.g., a non-English speaking student who was mistakenly classified as having mental retardation).

(iii) Is regarded as having such an impairment. A person is considered eligible if he/she:
  • has a physical or mental impairment that does not substantially limit a major life activity but is treated by the LEA as having such a limitation (e.g., a student who has scarring, a student who walks with a limp);
  • has a physical or mental impairment that substantially limits a major life activity only as a result of the attitudes of others towards such impairment; or
  • has no physical or mental impairment but is treated by the district as having such an impairment (e.g., a student who tests positive with the HIV virus but has no physical effects from it). 34 CFR 104.3(j)

What is a Major Life Activity or Major Bodily Function?

"Major Life Activities"--functions such as caring for one's self, performing manual task, walking, seeing, hearing, speaking, breathing, learning, and working,

The ADAAA08 added: Reading, Concentrating, Thinking, Sleeping, Eating, Lifting, Bending, Communicating, and the Operation of a Major Bodily Function (MBF) such as the immune system, normal cell growth, digestive, bowel, and bladder functions.

Who is Protected or Included under Section 504?

Section 504 protects qualified individuals with disabilities. Under this law, individuals with disabilities are defined as persons with a physical or mental impairment which substantially limits one or more major life activities. Major life activities include caring for one's self, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning. Some examples of impairments which may substantially limit major life activities, even with the help of medication or aids/devices, are: AIDS, alcoholism, blindness or visual impairment, cancer, deafness or hearing impairment, diabetes, drug addiction, heart disease, and mental illness (See, OCR website, The Civil Rights of Students with Hidden Disabilities Under Section 504 of the Rehabilitation Act of 1973).

What is the Process for Determining Section 504 Eligibility?

Screening- LEA effort to identify students who may be at risk due to a disabling condition and possibly qualify for 504.

Referral- Parents, teachers, diagnosticians, and building administrators may refer a student who is suspected of having a Section 504 disabling condition that substantially limits a Major Life Activity or Major Bodily Function.

Evaluation- The school must conduct an evaluation to determine if the student is indeed eligible and what services would be required to ensure FAPE. The evaluation process should provide information related to two definition-derived criteria:
  • Is a physical or mental impairment present?
  • Does the impairment result in a substantial limitation of a major life activity or major bodily function?

Eligibility Determination- The key element is average performance in the general population.
Substantial limitation is defined as:
  • Unable to perform a Major Life Activity or Major Bodily Function that the average person in the general population can perform, or
  • Significantly restricted as to the condition, manner, or duration under which an individual can perform a Major Life Activity or Major Bodily Function as compared to the average person in the general population.

Program Planning- School personnel should use all available assessment information to determine the needs of students who are eligible under Section 504 and create a plan that addresses those needs.

Placement- This decision should reflect a balance of the following factors:
    • The nature, severity, and duration of the student's impairment, and
    • A predisposition to place the student in general education whenever possible.

Reevaluation- Schools are required to develop a process annually for reviewing the
progress of students to determine if the accommodations in place are effective and whether
or not they should continue on Section 504.

What does "Evaluation" under Section 504 mean?

“Evaluation” does not necessarily mean “test.” For Section 504 “evaluation” refers to a gathering of data or information from a variety of sources so that the committee can make the required determinations. Since specific or highly technical eligibility criteria are not part of the §504 regulations, formal testing is not required to determine eligibility.

What are "Reasonable" Accommodations?

A "reasonable accommodation" is a change, adaptation or modification to a policy, program, service, or instruction which will allow a qualified person with a disability to participate fully in an academic or non-academic program or take advantage of a service.

Examples of reasonable accommodations in education include:
  • Preferential seating.
  • Adjusting the length of time allowed to complete an assignment.
  • Allowing tape recording of lecture.
  • Allowing students to dictate answers.
  • Allowing more time to take tests.
  • Providing an interpreter or reader.

Accommodations vs Modifications

What is an Individualized Health Care Plans?

A formal written agreement developed with the interdisciplinary collaboration of the school staff in partnership with the student’s family, the student, and the student’s health care provider(s).

Individualized Health Care Plans

What is Child Find?

The district must implement annual "child find" activities to identify and locate all children who may qualify for Section 504. An annual child find activity is also required by IDEA to identify children who may qualify for Special Education. Section 504 and IDEA child find efforts may be combined.

Section 504 vs. IDEA

Section 504 is a civil rights law that protects a broad range of students with disabilities from discrimination on the basis of their disabilities. No federal funding is provided to districts to implement Section 504. It is the responsibility of the school district to ensure compliance and funding.

IDEA is a federally funded statute that ensures that a free, appropriate public education is provided to students requiring special education services. The discrimination protections of Section 504 apply to Special Education students.

A student may be disabled within the meaning of Section 504 and therefore entitled to the rights and protection of Section 504 and its regulations, even though the student may not be eligible for special education benefits and services under the IDEA.

Change of Placement

This occurs when a student has been removed from school for a specific period of time:
  • A removal from school that lasts for more than ten consecutive school days; or
  • Where the student has been subjected to a series of removals that constitute a pattern--
    • Because the series of removals total more than ten school days in a school year;
    • Because the student's behavior is substantially similar to the student's behavior in previous incidents that resulted in the series of removals; and
    • Because of such additional factors as the length of each removal, the total amount of time the student has been removed, and the proximity of the removals to one another. (34 CFR 300.536(a)).

ISS: In-School suspension does not result in a change of placement, even if it last more than 10 days, however you must ensure (1) students are afforded the opportunity to appropriately progress in the general curriculum; 2) continue to receive accommodations according to Section 504 accommodation plan; and 3) continue to participate as non-disabled students to the extent they would have in their current placement. After 5 days of ISS a behavior plan should be written.

Note: Once a students has served more than 10 consecutive days of in-school suspension, a student's behavior intervention plan must be revised, and a manifestation determination review must be conducted.

Suspension: A Section 504 student suspended for 10 or more cumulative school days, is a change of placement. After 5 days of suspension a behavior plan should be written. If a change of placement occurs, then the Section 504 committee must conduct a manifestation determination review, continue to provide educational services to the student (in another setting) during the suspension, and conduct an initial line of inquiry. (34 CFR 300.530(d)).

What Due Process Rights do Parents have under Section 504?

Section 504 gives parents and guardians the right to challenge district decisions regarding the identification, evaluation and educational placement of their child. Under Section 504, a district must notify a student's parent or guardian before it takes any action regarding the identification, evaluation, or placement of their child and provide the parent or guardian an opportunity to challenge the action if they disagree. “Any action” includes a decision not to evaluate a student and denial of placement. The minimum necessary due process rights include:

  • prior notice of any action
  • a right to inspect records
  • an impartial hearing with a right to representation by counsel, and
  • a review procedure

Re-Evaluations under Section 504

A school district must establish procedures for periodic reevaluations for students with disabilities (§104.35(d)). A reevaluation procedure consistent with IDEA is one way of meeting the reevaluation requirement of Section 504 (ibid.) Parent permission to conduct a Section 504 reevaluation is not required but is required prior to an initial evaluation and prior to any significant change of placement or level of service.

What about Temporary Impairments?

A temporary disability (such as a broken limb) can constitute a physical impairment that substantially limits a major life activity such that Section 504 services might be required. The proper inquiry “is not whether the impairment is temporary or permanent; rather the appropriate inquiry is whether the impairment substantially limits one or more major life activity.” The determination must be made on a case-by-case basis, considering the nature, severity, duration or expected duration and the permanent or long term impact resulting from the impairment.

What is a "Hidden" Disability?

Physical or mental impairments that are not readily apparent to others. They include such conditions and diseases as specific learning disabilities (DSM diagnoses/ refer to school psychologist with questions), diabetes, epilepsy, and allergy. A disability such as a limp, paralysis, total blindness or deafness is usually obvious to others. But hidden disabilities such as low vision, poor hearing, heart disease, or chronic illness may not be obvious. A chronic illness involves a recurring and long-term disability such as diabetes, heart disease, kidney and liver disease, high blood pressure, or ulcers.

What are Mitigating Measures?

As of January 1, 2009, the Americans with Disabilities Amendment Act (ADAA) was implemented. The ADAA provides that the determination of whether an impairment substantially limits a major life activity, such that it rises to the level of a disability, must be made without considering the ameliorative effects of mitigating measures such as "medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetic limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies, use of assistive technology, reasonable accommodations, or learned behavioral or adaptive neurological modifications" (ADAA, P.L. 110-325, § (4)(E)(i)(ii)).

Who Enforces Section 504?

The United States Department of Education, Office for Civil Rights (OCR) is responsible for enforcing Section 504. OCR investigates complaints and will attempt to informally settle the complaint. In addition, OCR conducts periodic compliance reviews and provides technical assistance to school districts regarding compliance issues. There are twelve regional offices located throughout the nation.