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 Back To Module ListModule Main | Module Description | Instructional Outcomes | Instructional Proficiencies | Instructional Events | Instructional EvaluationSection 504 Author Jane Swiss, Ed.D., University of Saint FrancisNarrative Terminology - Review the following terms as they may be confusing and/or are frequently used incorrectly in the elementary and secondary school context.
Accommodation: a term correctly used in the context of public accommodations and facilities; an individual with a disability may not be excluded, denied services, segregated or otherwise treated differently than other individuals by a public accommodation or commercial facility; (term is not to be confused with "reasonable accommodation," discussed below)
Equal access: equal opportunity of a qualified person with a disability to participate in or benefit from educational aids, benefits, or services
Free and appropriate public education (FAPE): a term used in the elementary and secondary school context; refers to the provision of regular or special education and related aids and services that are designed to meet individual educational needs of students with disabilities as adequately as the needs of students without disabilities are met and is based upon adherence to procedures that satisfy the Section 504 requirements pertaining to educational setting, evaluation and placement, and procedural safeguards
Placement: a term used in the elementary and secondary school context; refers to regular and/or special educational program in which a student receives educational and/or related services
Reasonable accommodation: a term used in the employment context to refer to modifications or adjustments employers make to a job application process, the work environment, the manner or circumstances under which the position held or desired is customarily performed, or that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment; this term is sometimes used incorrectly to refer to related aids and services in the elementary and secondary school context or to refer to academic adjustments and auxiliary aids and services in the postsecondary school context
Related services: a term used in the elementary and secondary school context to refer to developmental, corrective, and other supportive services, including psychological, counseling and medical diagnostic services and transportation
Key Concepts
Comparable Benefits and Services
Section 504 and Title II of the ADA are broad civil rights statutes designed to promote equal access to and participation in programs and services. The regulations implementing these laws require that students with disabilities receive benefits and services comparable to those given their nondisabled peers. Specifically, these laws make it illegal for schools to discriminate on the basis of disability by:
For benefits or services provided to be "equally effective," they must afford students with disabilities an equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement as other students.
The Section 504 regulations require that school systems receiving federal funds provide a free appropriate public education to children with disabilities in accordance with the Section 504 requirements regarding least restrictive setting, evaluation and placement, and procedural safeguards. FAPE under Section 504 means that the education provided to students with disabilities must meet those students' needs as adequately as the needs of nondisabled students are met.
Criteria and Methods of Administration
It is illegal under the Section 504 and ADA regulations for school systems to use policies and practices that, intentionally or not, result in discrimination. 4 The regulations for both Section 504 and ADA use the term "criteria and methods of administration." "Criteria" are written or formal policies; "methods of administration" are the school system's actual practices and procedures. The ban on discriminatory policies, practices, and procedures includes those that:
Reasonable Accommodations
In meeting the responsibilities to students with disabilities under Section 504 and Title II of the ADA, school systems must make accommodations and modifications to address the needs of students with disabilities. Making accommodations and modifications means changing the way things are usually done in order to take into account a child's disability-related needs. Examples of accommodations and modifications include modifying rules, policies or practices; removing architectural or communication barriers; or providing aids, services, or assistive technology.
Maximum Feasible Integration
Under Section 504, children with disabilities must be educated with their nondisabled peers "to the maximum extent appropriate," and "removal . . . from the regular educational environment" occurs "only when the nature or severity of the disability is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily."
The ADA regulations similarly provide that a public entity, such as a school system, "shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities. "Schools have the burden of demonstrating that any removal from regular education is appropriate.
Key Legal Concepts and Standards-Based Education Reform
Using Standards as a Strategy for Reform
Standards-based education reform aims to attain high quality educational outcomes by identifying desired learning outcomes for students, shaping curricula and instruction accordingly, and holding schools accountable for the results. If a state or school system adopts standards for general education, then students with disabilities have the right to an education based on these same standards. Failure to apply standards to students with disabilities is a failure to provide "comparable benefits and services." Schools violate Section 504 and ADA regulations whenever students with disabilities are denied the benefits of education reform standards.
Linking Curriculum, Courses, and Instructional Strategies to the Standards Set for All Students
Standards in standards-based education reform define some of the outcomes of a quality education. The curriculum is then designed to reflect the standards and deliver that quality education. The goal of education reform is to make sure that students learn the curriculum which reflects the standards. Therefore, students with disabilities, like all other children, must be provided with courses and instruction that teach the curriculum. Otherwise, they will be denied comparable benefits and services, in violation of Section 504 and the ADA.
For some students, the method of teaching some or the entire curriculum may need to be modified, perhaps as a reasonable accommodation, or as a supplementary aid or service necessary for maximum feasible participation in regular education. For a small number of students who have significant disabilities, it may be necessary to modify, adapt, or expand the curriculum or instruction to provide access to the standards. These decisions must be made on an individual basis, and based upon valid and competent individualized educational evaluations.
Further, it is also discriminatory for school systems to adopt "criteria or methods of administration" (policies and practices) which limit opportunities for students with disabilities to learn the standards. To avoid such discrimination, school systems must identify and examine any policies or practices that may have the effect of limiting students' access to the courses and instruction necessary to learn the curriculum and meet the standards.
Depending upon the circumstances, any number of policies and practices might have this effect. Examples include lack of coordination (in terms of both scheduling and content) between pull-out programs, such as resource rooms, and the mainstream academic curriculum; providing a diluted curriculum in separate programs and classes for students with disabilities; and failing to integrate special education supports and related services into regular education classes.
Using Assessment for School Accountability
Assessment is key to ensuring that school reform initiatives actually deliver quality education. The purpose of these assessments, often called "large-scale assessments," is to gather information that shows whether schools are successfully teaching students the standards. This information is then used to identify weaknesses in schools and to make necessary improvements. Assessment is the way that standards-based education reform holds schools accountable for student learning and achievement.
Historically, students with disabilities have been excluded from such assessments in large numbers. As a result, information about the achievement of these students is often missing when the effectiveness of school programs and services is evaluated and decisions about policies and reform initiatives are being made. With exclusion from assessment, schools are not held accountable for the quality of education students with disabilities receive. These students are denied the benefit of this critical aspect of standards-based education reform in violation of the requirement to provide comparable benefits and services under Section 504 and the ADA.
These civil rights laws require not only that students with disabilities take part in these accountability assessments, but that they receive any reasonable accommodations necessary to participate.
For many students, participation in assessment will not require any changes in the way that the assessment is given. Other students will require accommodations such as extra time for the assessment or materials in a different format (e.g., written materials in Braille, or a reader) in order to participate. A small number of students may require a different type of assessment (an "alternate assessment") to demonstrate their knowledge and skills in a nondiscriminatory manner. For example, some students may need a "hands-on" test using models rather than a pencil and paper test to show their understanding of geometry and some students may require a portfolio assessment.
Key concepts information was provided by the PEER Project
Frequently Asked Questions
What is Section 504?
Section 504 of the Rehabilitation Act of 1973 is a federal law designed to protect the rights of individuals 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 . . . ." The Section 504 regulation requires a school district to provide a "free appropriate public education" (FAPE) to each qualified student 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 student's individual needs.
Who is protected under Section 504?
Section 504 covers qualified students with disabilities who attend schools receiving Federal financial assistance. To be protected under Section 504, a student 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 impairment, or 3) be regarded as having such impairment. Section 504 requires that school districts provide a free and appropriate public education (FAPE) to qualified students in their jurisdictions who have a physical or mental impairment that substantially limits one or more major life activities.
What is a physical or mental impairment that substantially limits a major life activity?
The determination of whether a student 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 endocrine; 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.
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).
Once a student is identified as eligible for services under Section 504, is that student 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 student in accordance with the Section 504 regulation 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.
Are current illegal users of drugs excluded from protection under Section 504?
Generally, yes. Section 504 excludes from the definition of a student with a disability, and from 504 protection, any student who is currently engaged in the illegal use of drugs (with exceptions for persons in rehabilitation programs).
Are current users of alcohol excluded from protection under Section 504?
No. Section 504's definition of a student with a disability does not exclude users of alcohol. However, Section 504 allows schools to take disciplinary action against students with disabilities using drugs or alcohol to the same extent as students without disabilities.
At the elementary and secondary school level, determining whether a child is a qualified disabled student under Section 504 begins with the evaluation process. Section 504 requires the use of evaluation procedures that ensure that children are not misclassified, unnecessarily labeled as having a disability, or incorrectly placed, based on inappropriate selection, administration, or interpretation of evaluation materials.
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 regulation, 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.
How much is enough information to document that a student has a disability?
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 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 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.
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 initially to evaluate the needs of students under Section 504 as they use to evaluate the needs of students under the IDEAI. 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 regulation at 34 C.F.R. 104.35.
Must school districts consider "mitigating measures" used by a student in determining whether the student has a disability under Section 504?
Yes. A school district must consider a student's use of mitigating measures in determining whether the student 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.
Are there any impairments which automatically qualify a student 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 student for protection under Section 504.
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 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.
Does a medical diagnosis of an illness automatically qualify a student for services under Section 504?
No. A medical diagnosis of an illness does not automatically qualify a student for services under Section 504. The illness must cause a substantial limitation on the student's ability to learn or other major life activities. 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.
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 student'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 student's individual circumstances.
What should a recipient school district do if a parent refuses to consent to a case study evaluation under the Individuals with Disabilities Education Act (IDEA), but demands a Section 504 plan for a student without further evaluation?
Section 504 requires informed parental permission for initial evaluations. If a parent refuses consent for an initial evaluation and a recipient school district suspects a student has a disability, the IDEA and Section 504 provide that school districts may use due process hearing procedures to override the parents' denial of consent.
Who in the evaluation process makes the ultimate decision regarding a student'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 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.
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 regulation, which requires re-evaluation at three-year intervals or more frequently if conditions warrant, or if the child's parent or teacher requests a re-evaluation.
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. 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.
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 modification to regular education if the student, because of disability, needs or is believed to need such services.
A student is receiving services that the school district maintains are necessary under Section 504 in order to provide the student with an appropriate education. The student's parent no longer wants the student to receive those services. If the parent 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 student needs the services in order to receive an appropriate education.
A student 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 student may be eligible for services under Section 504. The school district must determine whether the student has an impairment which substantially limits his or her ability to learn or other major life activities and, if so, make an individualized determination of the child's educational needs for regular or special education or related aids or services. For example, such a student may receive adjustments in the regular classroom.
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 either the duration (or expected duration) of the impairment and the extent to which it actually limits a major life activity of the affected individual.
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 student is eligible under IDEA, he or she must have an IEP. Under the Section 504 regulations, one way to meet Section 504 requirements is to comply with IDEA.
What Is a Section 504 Plan?
If your child is eligible, then a Section 504 Plan will be developed to give her access to the general education curriculum. Unlike the IEP for special education, there are no legal requirements for what should be included in the plan. A free appropriate public education (FAPE) under Section 504 often means identifying reasonable accommodations to help her succeed in the classroom. An accommodation plan usually addresses the following:
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 elementary and secondary schools, unless a student actually has a disabling condition 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 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 student either does not currently have or never had a disability, but is treated by others as such.
What is the receiving school district's responsibility under Section 504 toward a student with a Section 504 plan who transfers from another district?
If a student 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 student consistent with the Section 504 procedures at 34 C.F.R. 104.35 and determine which educational program is appropriate for the student.
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 teachers' treatment of students for whom they are responsible. If the teachers fail to implement the plans, such failure can cause the school district to be in noncompliance with Section 504.
What is the difference between a regular education intervention plan and a Section 504 plan?
A regular education intervention plan is appropriate for a student 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 students in need of assistance. These teams are typically composed of regular and special education teachers who provide ideas to classroom teachers on methods for helping students experiencing academic or behavioral problems. The team usually records its ideas in a written regular education intervention plan. The team meets with an affected student's classroom teacher(s) and recommends strategies to address the student's problems within the regular education environment. The team then follows the responsible teacher(s) to determine whether the student'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.
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.
Must a recipient school district obtain parental consent prior to initiating a Section 504 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, districts may use due process hearing procedures to override the parents' denial of consent for an initial evaluation.
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 requires written consent prior to initiating an evaluation.
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.
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.
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.
Is there a mediation requirement under Section 504?
No.
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. (U.S. Department of Education)
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.
In the educational context, OCR 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.
The above information was developed by the Chicago Office of the Office for Civil Rights. |